Orissa High Court

Sabbir Ali Mandal And Another vs State Of Orissa on 5 April, 2023

                  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

-Versus-

State of Orissa ..... Opp. Party

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. 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

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 [email protected]

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 whether a cognizable offences is // 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