Sri Asutosh Mohapatra And Others vs Smt. Jyoti Panda @ Mohapatra And
2023 Latest Caselaw 3154 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    CRLMC No.2863 of 2017

             Sri Asutosh Mohapatra and others                ....      Petitioners
                                           Mr. Gautam Misra, Senior Advocate

                                     -versus-
             Smt. Jyoti Panda @ Mohapatra and     .... Opposite Parties
             another
                                           Mr. Bigyan Sharma, Advocate

                         CORAM:
                         THE CHIEF JUSTICE

                                          ORDER

Order No.                                11.04.2023
             Dr. S. Muralidhar, CJ.

07. 1. The present petition under Section 482 Cr.P.C. seeks the quashing of the order dated 15th March 2017 passed by the SDJM, Bhubaneswar in CMC No.706 of 2016 filed by the present Opposite Parties under Section 12 (1) of the Protection of Women from Domestic Violence Act, 2005 (PWDV Act). The petition also seeks the setting aside of a judgment dated 1st September 2017 passed by the Sessions Judge, Khurda at Bhubaneswar dismissing the appeal under Section 29 of PWDV Act thereby affirming the order dated 15th March 2017 of the SDJM dismissing the petition filed by the present Petitioners questioning the maintainability of the aforementioned CMC No.706 of 2016 on the ground of limitation. Inter alia, both the SDJM and the Sessions Judge took the view that the question of limitation was mixed question of fact and law which could be gone into only at the stage of trial.

2. The background facts are that Petitioner No.1 had married to Opposite Party No.1 on 6th July, 2007. A son was born on 23rd May, 2008. In the complaint filed under Section 12 (1) of the PWDV Act on 23rd November 2016, Opposite Party No.1 is silent about when she left the matrimonial home whereas according to the Petitioners she left matrimonial home some time in 2009.

3. Mr. Gautam Misra, learned Senior Advocate for the Petitioners, at the outset submits on instructions that he is pressing the present petition for quashing of CMC No.706 of 2016 only as far as Petitioner Nos.2 to 4 i.e., the father-in-law, mother-in-law and brother-in-law are concerned and not Petitioner No.1 who happens to be the husband of Opposite Party No.1.

4. Referring to the application under Section 12 (1) of the PWDV Act, Mr. Misra submits that the allegations as far as Petitioner Nos.2 to 4 are concerned are at best vague and unspecific and the entire petition has been made belatedly 9 years after Opposite Party No.1 left the matrimonial home. He refers inter alia to the decisions in Chandralekha v. State of Rajasthan (2013) 14 SCC 374, Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667, Seenivasan v. State (2019) 8 SCC 642 and Kahkashan Kausar v. State of Bihar (2022) 6 SCC 599.

5. Mr. Bigyan Sharma, learned counsel for Opposite Party No.1, on the other hand defends the impugned orders of the SDJM and Sessions Judge and submits that the question of limitation if any is a mixed question of fact and law and the parties could not avoid facing trial on that score. As far as the allegations against the Petitioners under PWDV Act are concerned, he submits that there

were allegations made against Petitioner Nos.2 to 4 which were specific although the exact dates on which such incidents occurred were not mentioned. He submits that the non-compliance of orders passed by the Court in proceedings under the PWDV Act would itself constitute an offence and therefore, the Court should not at this stage interfere with the proceedings under Section 482 Cr PC.

6. The above submissions have been considered. On a perusal of the order dated 15th March 2017, it is seen that baring the last paragraph of the order, it merely sets out all the contentions of the Petitioners and observes that since PWDV Act is a beneficial law intended to provide relief to a destitute lady and has retrospective effect "the cause of domestic violence can be better appreciated at the time of trial and not at the present stage".

7. As far as the judgment dated 1st September 2017 of the Sessions Judge is concerned, again it proceeds on the basis that all the contentions raised by the Petitioners "shall be gone through during the trial of the case and the same cannot be considered, entertaining a preliminary objection." That order also does not deal with the objection as regards the complaint under the PWDV Act being highly belated i.e. nearly 9 years after Opposite Party No.1 left the matrimonial home. A perusal of the application under the PWDV Act reveals that it is silent on when Opposite Party No.1 actually left the matrimonial home and what transpired during the 9 years till the filing of the complaint.

8. Mr. Sharma, learned counsel for Opposite Party No.1 volunteers that Petitioner No.1 husband had filed an application for divorce under Section 13 (i) of the Hindu Marriage Act, 1955 (CP No.234

of 2017) in the Family Court at Bhubaneswar on 25th March, 2017 after receiving the notice in the CMC No.706 of 2016. This still does not explain why Opposite Party No.1 had to wait for over 9 years to file the complaint under the PWDV Act in relation to events that transpired in 2007, 2008 and so on. In other words, there is no valid explanation offered anywhere in the complaint why the complaint was filed belatedly.

9. Secondly, specific to Petitioner Nos. 2 to 4 who are the "in- laws", the Court finds that in many of the paragraphs of the complaint, there are general allegations against all the 'in-laws' and no specific allegations pertaining to each of them. Importantly, many of the allegations are without any dates being mentioned and therefore, at best can be termed as vague and non-specific. The person drafting the complaint definitely did not keep in mind the requirement of law that the allegations have to be specific and when they concern several accused persons they have to be specific each of them.

10. In Chandralekha v. State of Rajasthan (supra), the Supreme Court while quashing the FIR pertaining to the in-laws observed that "the allegations are extremely general in nature. No specific role is attributed to each of the Appellants." It also noted that in the facts of the case, the complaint had been filed six years after the complainant left the matrimonial house. It was observed in the said case "in our opinion, such extraordinary delay in lodging the FIR raises grave doubt about the truthfulness of the allegations made by Respondent No.2 against Appellants 1, 2 and 3, which are, in any case, general in nature."

11. Again in Preeti Gupta v. State of Jharkhand (supra), while quashing a complaint under Section 498-A IPC against the relatives of the husband, the Court cautioned that such allegations "require to be scrutinized with great care and circumspection" and that "the tendency of implicating the husband and all his immediate relations is also not uncommon." The Court also reflected on the role of the Members of the Bar and observed that they have an obligation to ensure "that the social fibre of the family life is not ruined or demolished. They must ensure that the exaggerated versions of small incidents should not be reflected in the criminal complaints."

12. In Seenivasan v. State (supra), there were bald allegations made against the relatives of the husband and other family members. While quashing the complaint, the Court observed that if the proceedings were allowed to go on it would amount to an abuse of the process of the Court.

13. In Kahkashan Kausar v. State of Bihar (supra), again it is observed in para 17 as under:

"17. The abovementioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the

husband when no prima facie case is made out against them."

14. The above observations made in the context of Section 498-A IPC would be equally relevant to a petition under the PWDV Act. In the present case, the Court finds that as far as Petitioner Nos.2 to 4 are concerned, the allegations in the complaint are vague, not specific to each of them, and significantly, the complaint itself appears to be belated without any valid explanation for the delay in filing it.

15. For the aforementioned reasons, in light of the legal position explained in the aforementioned decisions, as far as Petitioner Nos.2 to 4 are concerned, this Court while setting aside the order dated 15th March 2017 of the SDJM, Bhubaneswar and the judgment dated 1st September 2017 of the Sessions Judge, Khurda at Bhubaneswar, quashes CMC No.706 of 2016 under Section 12 (1) of the PWDV Act. It is clarified that CMC No.706 of 2016 will continue against Petitioner No.1 and his contentions are left open to be urged at the appropriate stage in the trial court.

16. The CRLMC is disposed of in the above terms. Issue urgent certified copy of this order as per rules.

(Dr. S. Muralidhar) Chief Justice

S.K. Guin