Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK CRLMC No.3453 of 2019 In the matter of application under Section 482 of the Criminal Procedure Code, 1973. --------------- Sabbir Ali Mandal and Another ..… Petitioners State of Orissa ….. Opp. Party -Versus- For Petitioners : Mr. A. Das, Advocate For Opp. Party : Mr. P.K. Pattnaik, AGA, P R E S E N T: JUSTICE G. SATAPATHY Date of hearing: 24.03.2023, Date of judgment:05.04.2023 G.SATAPATHY, J. The prayer in the CRLMC is to quash the order passed on 19.05.2018 by the learned S.D.J.M., Kendrapara in G.R. Case No.930 of 2017 and consequently, // 2 // the criminal proceeding arising therein against the Petitioners. 2.
Facts
The Informant-wife lodged an FIR before IIC, Derabish vide P.S. Case No. 88 of 2017 corresponding to G.R. Case No. 930 of 2017 of the Court of learned S.D.J.M.,Kendrapara alleging therein against the Petitioners and others for subjecting her to torture and cruelty for demand of dowry as well as molesting her and accordingly, on receipt of charge-sheet, the learned S.D.J.M., Kendrapara by the impugned order took cognizance of offences U/Ss.498-A/341/506/406/376/34 of IPC r/w Sec. 4 D.P. Act and directed issuance of process against the Petitioners and others. Feeling aggrieved, the Petitioners
Legal Reasoning
approached this Court in an application U/S. 482 of Cr.P.C. in the above CRLMC for the relief indicated in the preceding paragraph. 3. In the course of hearing of the CRLMC, Mr. A. Das, learned counsel for the Petitioners submitted that the // 3 // Petitioners are the brother-in-law and sister-in-law (husband of the sister of the groom and sister of the groom) and they were residing in Hyderabad at the relevant time of occurrence and the informant bride has made omnibus allegation against the Petitioners and, therefore, no offence is made out against the Petitioners, but the learned trial Court ignoring the aforesaid facts has taken cognizance of offence by the impugned order. In praying to quash the criminal proceedings against the Petitioners, learned counsel for the Petitioners relied upon the decision in Preeti Gupta and another Vrs. State of Jharkhand and another; 2010(47) OCR (SC) 367, Geeta Mehotra and another Vrs. State of U.P. and another; 2012 (53) OCR (SC) 1257 and Mirza Iqbal@ Golu and another Vrs. State of U.P. and another; 2022 (86) OCR (SC)-632. 4. On the other hand, Mr. P.K. Pattnaik, learned AGA, by referring to the materials on record submitted that // 4 // there is in fact specific allegation against the Petitioners and, therefore, the criminal proceeding cannot be considered as abuse of process of Court to quash the criminal proceeding against the Petitioners. It is noticed, although the informant has not been made as a party, but she by entering appearance through her counsel Mr. S.K. Attiullah, contested the CRLMC and, accordingly, Mr. S.K. Attiullah, submitted by referring to the statement of informant and other witness that there is specific allegation against the Petitioners for demand of dowry as well as subjecting the informant to torture and cruelty. Mr. S.K. Attiullah, by relying upon the decision in Rajeev Kourav Vrs. Baisahab and others; (2020)3 SCC 317. 5. After hearing the rival submissions advanced on behalf of the parties, it is stated that the Petitioners have filed this CRLMC by enclosing a photo copy of the certified copy of the FIR, certified copy of the impugned order and one photo copy of legal notice stated to be issued against // 5 // the informant as well as the photo copy of the petition in CP No. 249 of 2017 filed by the informant against the Petitioners and others in the learned Judge Family Court, Balasore, but the Petitioners have not filed any other documents, such as statement of witnesses, seizure list etc. in Derabish P.S. Case No.88 of 2017. There appears no dispute that the FIR was lodged by the informant against the Petitioners and others before the IIC Derabish P.S. on 9.7.2017 and in the meanwhile, around more than five and half years have elapsed, but the petitioners have failed to apprise this Court about the present status of the case. It is undoubtedly advanced for the Petitioners that they have been implicated in this case by general and omnibus allegations, but a casual reference to the averments made in the FIR reveals allegation that the informant and her husband had been to the house of the Petitioners at Hyderabad and the Petitioners had demanded a vehicle // 6 // there and tried to press her neck and they had driven her out from their house. 6. This Court is, however, conscious of the facts that there is a tendency for over implication of the relatives of the husband in some cases of matrimonial disputes and even relatives staying outside are overzealously implicated by way of bald allegations, but there are, of course, some genuine cases which should not be stifled/quashed without examining the allegations on record. All the decisions relied on by the Petitioners relates to implication of accused- Petitioners therein on the basis of omnibus and general allegations, but in this case, since no material has been produced by the Petitioners, except the photo copy of the FIR in connection with the criminal case, it cannot be considered without perusing the other materials on record that the Petitioners have been implicated by omnibus and general allegations, especially when there appears allegations against the Petitioners for demanding vehicle // 7 // and subjecting the informant to torture and cruelty in the FIR itself. On the other hand, since the case is of the year 2017, there is every possibility that the learned trial Court might have proceeded to some extent and in such situation, it would not be proper to quash the criminal proceeding against the Petitioners without perusing the entire materials of the criminal case which has admittedly being not produced for the Petitioners in this case till today. 7. What should be the consideration for quashing the proceeding at the stage of FIR/complaint and thereafter, after filing charge-sheet has been well explained in Kaptan Singh Vrs State of Uttar Pradesh and others; (2021) 9 SCC 35, wherein the Apex Court in Paragraph- 9.1 has observed as under:- “if the Petition U/S. 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and is whether a cognizable offences // 8 // disclosed or not is required to be considered. However, thereafter, when the statements are recorded, evidence is collected and the charge- sheet is filed after conclusion of investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial.” 8. A conspectus of material produced by the Petitioners in this case which is in the form of photo copy of certified copy of FIR and the law laid down by Apex Court in Kaptan Singh (Supra) and taking into account the failure of Petitioners to satisfy this Court, by producing the other materials collected by the Investigating Agency for filing the charge-sheet against the Petitioners, to prima facie suggests about their implication on omnibus and // 9 // general allegation, this Court is unable to accede to the contention of the Petitioners that their implication in this case is only on the basis of general and omnibus allegation. However, the Petitioners can raise those points at appropriate stage of the case by taking the trial Court through the materials evidence. 9. In the net result, the CRLMC stands dismissed on contest, but in the circumstance there is no order as to costs. JUDGE …………….………….. G.SATAPATHY, Orissa High Court, Cuttack The 5th April, 2023, Priyajit