Dharitri Mishra vs State Of Orissa And Others
2023 Latest Caselaw 3542 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

              CRLMC NO.1104 of 2017

 (In the matter of application under Section 482 of the
 Criminal Procedure Code, 1973).

 Dharitri Mishra                   ...         Petitioner
                        -versus-

 State of Orissa and Others        ...   Opposite Parties


 For Petitioner         : Mr. B. Nayak, Advocate


 For Opposite Parties : Mr. S.S. Pradhan, AGA
                        Mr. S.R. Mohapatra,
                        Advocate (O.Ps.1-12)

      CORAM:
               JUSTICE G. SATAPATHY

           DATE OF HEARING :04.04.2023
           DATE OF JUDGMENT :17.04.2023

G. Satapathy, J.

An application U/S.482 of Cr.P.C.

filed by the petitioner by way of this CRLMC prays to

direct issuance of summons against O.P.Nos.2 to 12

in I.C.C. No. 889 of 2017 along with four accused

persons charge-sheeted in Cuttack Mahila P.S. Case

No.132 dated 17.09.2014 corresponding to G.R. Case

No.1538 of 2014 of the Court of learned S.D.J.M.,

Cuttack.

2. The short facts involved in this case arise out of

an FIR lodged by the petitioner against her husband,

in-laws and others numbering 15 persons before the

IIC, Mahila P.S., Cuttack alleging therein against

them for subjecting her to torture and cruelty for

demand of dowry, causing miscarriage of her

pregnancy as well as assaulting and threatening her

and also specifically against her brother-in-law for

ravishing her and, accordingly, the investigation

ensued, which culminated in submission of charge-

sheet only against husband, brother-in-law, father-in-

law and mother-in-law, but not against the other

persons named in the FIR. However, the learned

S.D.J.M., Cuttack after going through the materials

placed on record took cognizance of offences

U/Ss.498-A/376/506/406/34 of IPC read with Section

4 of D.P. Act and issued summons to the above four

charge sheeted accused persons. Feeling aggrieved

with non-submission of charge-sheet against

O.P.Nos.2 to 12, the petitioner filed a protest petition

in shape of complaint against O.P.Nos.2 to 12 in

1.C.C. Case No.899 of 2017 in the Court of learned

S.D.J.M., Cuttack, who by an order passed on

20.01.2017, dropped the complaint by holding it to

be not maintainable. Aggrieved by such order, the

petitioner has approached this Court in the present

CRLMC for the relief indicated in the preceding

paragraph.

3. In the course of hearing of CRLMC, Mr. Balaram

Nayak, learned counsel for the petitioner submits that

although the petitioner has filed an FIR against 15

persons, but the Investigating Officer had only

submitted charge-sheet against four persons leaving 11

accused persons without any proper

investigation/reasons and the learned S.D.J.M., Cuttack

has fallen in error while taking cognizance of offences,

agreeing with the police report submitted U/S.173(2) of

Cr.P.C. and not issuing notice to O.P.Nos.2 to 12.

Learned counsel for the petitioner further submits that

the petitioner being the informant has right to be

noticed and heard before dropping of the proceeding

against some of the accused persons, who have been

arraigned as accused persons for the act done on the

informant, but the learned S.D.J.M., Cuttack having not

issued notice or heard the informant, has passed the

order ignoring to issue summons to O.P.Nos.2 to 12,

who are liable for the offences committed upon the

informant and, therefore, the learned S.D.J.M., Cuttack

having failed to comply the mandate of law, may be

directed to issue summons to O.P.Nos.2 to 12 to face

the trial in the case.

4. On the other hand, Mr. S.S. Pradhan, learned

AGA, however, submits that the learned S.D.J.M.,

Cuttack has not committed any illegality and after

taking into account the materials on record, the learned

S.D.J.M., Cuttack has acted judicially to issue notice

upon the accused persons prima facie responsible for

the commission of offences. Learned AGA accordingly

prays to dismiss the CRLMC.

5. Mr. S.R. Mohapatra, learned counsel appearing

for O.P.Nos.2 to 12, however, reiterating the

submission advanced by the learned AGA, further

submits that in a matrimonial case, there is a

tendency of over implication of the in-laws by the

wife and in this case, the materials on record

squarely disclose the anxiety of the informant to

implicate innocent persons, who are either distant in-

laws or had nothing to do with the dispute between

the informant and the accused persons and the

learned S.D.J.M., Cuttack thereby, has passed the

order taking cognizance of offences and issuing

processes against those persons, who are primarily

responsible for the overt act upon the petitioner. On the

aforesaid submission, Mr. S.R. Mohapatra, learned

counsel for the O.P.Nos.2 to 12 prays to dismiss the

CRLMC.

6. The main grievance of the petitioner in this case

is that no notice was served upon the informant,

while the Magistrate took cognizance of offences and

summoned four accused persons leaving O.P.Nos.2 to

12, but such notice emanates for obvious reason for

providing an opportunity of being heard to the

informant who sets the machinery of investigation

into motion by filing the FIR has a right to know the

result of investigation. No doubt the informant has

not being noticed in this case, but she after knowing

the fact that the learned Magistrate had left out to

summons O.P.Nos.2 to 12 had filed protest petition in

the form of complaint against O.P.Nos.2 to 12 which

was dropped by the learned S.D.J.M., Cuttack in the

impugned order after hearing the learned counsel for

the complainant and the learned Asst. Public

Prosecutor. It is not in dispute that the learned

S.D.J.M., Cuttack on receipt of charge sheet had not

issued notice to the informant while taking

cognizance of offences and issuing summons to the

four accused persons leaving 11 accused persons, but

the very purpose for which the notice is required to

the informant has of course being exhausted by the

informant in the form of filing complaint and getting

an opportunity of being heard in the

proceeding/complaint against O.P.Nos.2 to 12 by the

Court and therefore, the purpose of notice to the

informant has otherwise been fulfilled.

7. This Court is conscious of the principle as laid

down by the Apex Court in Bhagwant Singh Vrs.

Commissioner of Police and another; AIR 1985

SC 1285 wherein apart from observing that when the

Magistrate to whom a report is forwarded

U/S.173(2)(ii) decides not to take cognizance of

offence and to drop the proceeding or takes the view

that there is no sufficient ground for proceeding

against some of the persons mentioned in the FIR,

the Magistrate must give notice to the informant and

provide him an opportunity to be heard at the time of

consideration of the report, the Apex court has

further observed in Paragraph-5 as follows:-

"5. The position may, however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Criminal P.C.,1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice lo the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the

exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report."

8. The principle as has been laid down by the Apex

Court in Bhagwant Singh(supra) for the situation

that may arise before a Magistrate on receipt of

report forwarded by the Officer-in-Charge of Police

Station under sub-section (2)(i) of Section 173 is

extracted as under:-

"one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding, or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the

report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156."

It is, therefore, very clear that the Court

receiving the police report U/S. 173 has three

alternative options in the aforesaid two situations.

One is when the police submits charge sheet against

the accused persons and other is when the police

submits final report on account of not finding any

prima facie materials against the accused persons. In

both the situations, the Magistrate has power to

agree or disagree with the police report and to adopt

one of the options as provided alternatively, but while

dropping a proceeding against the accused persons

on receipt of the police report, the Magistrate has to

give a notice to the informant and if the informant so

desires, he/she has to be heard before dropping the

proceeding. Additionally, Section 319 of the Code of

Criminal Procedure, 1973 confers power to proceed

against other persons appearing to guilty of offences.

9. On coming back to the contention of O.P. Nos.

2 to 12, experience shows that in large number of

cases of matrimonial disputes, the offence U/S. 498-A

of IPC is grossly misused against the in-laws in the

society to harass them with rigmarole of the trial

procedure and sometimes those relatives who might

not have met the woman (bride) or do not live with

her are also roped in by way of omnibus/general

allegation which in common parlance means that

allegation leveled on all the accused persons are the

same or general which is a situation wherein one fails

to ascertain the role played by each accused for

committing offence. In such situation the very object

and purpose of Section 498-A of IPC which is meant

to prevent cruelty inflicted upon a woman by her

husband or in laws, are defeated, when the penal

section is used to settle once personal vendetta

against the husband and his relatives.

10. In this regard this Court considers it profitable

to refer to the decision in Kahkashan Kausar @

Sonam Vrs. State of Bihar; (2022) 6 SCC 599

wherein the Apex Court while considering general and

omnibus allegations in matter relating to dowry death

and cruelty has reminded the duty of the Court as

follows:-

"The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out."

In the above decision, the Apex Court has also held

thus:-

"The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to

ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection."

11. In Geeta Mehrota and another Vrs. State

of Uttar Pradesh and another; (2012) 53

OCR(SC) 1257, the Apex Court while quashing the

proceeding has observed that family members of

husband were shown as accused by making casual

reference to them. In the same judgment, it is held

that a large number of family members are shown in

the FIR by making casual reference and without

allegation of active involvement in the matter, taking

cognizance of offences in the same matter was

considered to be not justified.

12. In the case at hand, there appears no dispute

about informant lodging an FIR against the husband

and 14 others, out of whom, five are described as in

laws, but the I.O. after conclusion of investigation has

submitted charge sheet against husband, brother-in-

law, father-in-law and mother-in-law. On receipt of

charge sheet and after being prima facie satisfied, the

learned S.D.J.M. took cognizance of offences and

issued process against these four charge-sheeted

accused persons prior to the passing of the impugned

order on 20.01.2017 dropping the complaint and in

the meanwhile, around six years have elapsed. This

Court, therefore, considers that the case must have

been committed to the Court of Sessions and

proceeding thereon must have been followed up. In

such situation, although the CRLMC has been filed in

the year 2017, but the petitioner has never tried to

get the matter listed by way of mentioning for early

disposal of the case and the learned counsel for the

petitioner having failed to apprise the Court about the

present stage of the case, it cannot be considered

proper to direct summoning opposite party Nos. 2 to

12 afresh in the protest petition at such lapse of time,

when such other efficacious remedies are available to

the petitioner under law, which of course subject to

fulfillment of requirement of law.

13. A careful consideration of the matter would

reveal that although notice has not been issued to the

informant to know about the status of investigation,

but the informant having filed a protest petition in the

form of complaint after knowing that the police has

left the name of O.P. Nos. 2 to 12 in the charge sheet

and therefore, the very purpose of contention raised

on behalf of the petitioner having already been

availed of, right now the proceeding in the criminal

case should not be brought to the stage of

consideration of police report for taking cognizance of

offence by hearing the informant after more than six

years of dropping of the complaint instituted by the

informant on knowing about the police has not charge

sheeted O.P. Nos. 2 to 12 on her FIR. It is also

matter of common experience that exaggerated

version of the incident is reflected upon in a large

number of complaints which is manifestation of over

implication of in-laws in a very large number of

cases. Nevertheless, the husband, brother-in-law and

parents-in-law have been charge sheeted in this case,

but the petitioner wants to rope some more people

who are distant relatives of the husband of the

petitioner. In such situation, when the case must

have been committed to the Court of Sessions and

trial should have been ensued thereon and the

petitioner, therefore, may resort to other provisions

of law as available to her in case there is any ring of

truth in her allegation against the other accused

persons who are left out in this case and the same

has to be judged on the parameter of the specific

provisions of law by the Court in seisin of the case,

but at such length of time, this Court is not in favour

of directing the learned SDJM, Cuttack who might not

be in seisin of the case to summon O.P. Nos. 2 to 12

as accused persons in this case, more particularly

when the police has not charge sheeted them and the

Court by the impugned order has refused to summon

them after hearing the informant and State.

14. In the result, the CRLMC stands dismissed on

contest, but in the circumstance there is no order as

to costs.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 17th of April, 2023/Subhasmita