An Application Under Section 482 ... vs State Of Odisha
2023 Latest Caselaw 8879 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                           CRLMC No. 2630 of 2023

       An application under Section 482 of Code of Criminal Procedure,
       1973.
                                  ---------------

AFR    Suryakanta Bhutia and another                 ......    Petitioners

                             -Versus-

       State of Odisha                              ......   Opposite Party


       Advocate(s) appeared in this case:-
       _________________________________________________________________

         For Petitioners     : Mr. S.C. Mohapatra, Sr. Advocate.
                               With M/s. S.Mohapatra, M.R.Mohapatra

          For Opp. Party     : Mr. S.K. Mishra,
                               Additional Standing Counsel

       _________________________________________________________________

       CORAM:
            JUSTICE SASHIKANTA MISHRA

                                 JUDGMENT

9th August, 2023

SASHIKANTA MISHRA, J.

The petitioners have been arrayed as accused

persons along with others in G.R. Case No. 3 of 2023 pending

before the learned J.M.F.C.(Cog Taking), Dhenkanal under

Sections 498-A/302/304-B/34 IPC and Section 4 of the

Dowry Prohibition Act. In the present application filed under

Section 482 of Cr.P.C., they seek to challenge the order dated

02.05.2022 issuing process against them.

2. The facts of the case, briefly stated are that one

Kirti Chandra Mahakhud lodged a complaint before the IIC of

Hindol Road Police Station on 01.01.2023 alleging therein

that his daughter had been killed by her in-laws including

her husband after being subjected to mental and physical

cruelty in connection with demand for dowry. This led to

registration of Motanga P.S. Case No. 2 of 2013 under

Sections 498-A/302/304-B, 34 IPC read with Section 4 of the

D.P. Act. The husband of the deceased, his father, mother,

two elder brothers and younger brother were shown as

accused persons. Petitioner No.1 is the elder brother of the

husband of the deceased and petitioner No.2 is his younger

brother. It is alleged that the deceased was married to one

Ratikanta Bhutia on 07.07.2021 and at the time of marriage,

as per demand of her in-laws, cash of Rs.1,00,000/- along

with all other ornaments and items were gifted as dowry.

However, the in-laws continued to demand further dowry.

The husband of the deceased frequently quarrelled with her

for which she used to come back and reside in her

matrimonial home on some occasions. Ultimately on

01.01.2023, the informant received information that his

daughter had died. In course of investigation, it was found

that the deceased had died because of asphyxia caused by

strangulation. Upon completion of investigation, charge sheet

was submitted against all the accused persons. In the

meantime, on the prayer of the I.O., non-bailable warrant of

arrest was issued against the present petitioners.

3. After considering the materials on record, the

Court below by order dated 02.05.2022 found prima facie

materials to take cognizance of the aforementioned offences.

By the same order the Court below also issued process

against the accused persons and noted that non-bailable

warrant had already been issued against the petitioners.

Being aggrieved the petitioners have approached this Court

with prayer to quash the NBW pending against them.

4. Heard Mr. S.C. Mohapatra, learned Senior Counsel

along with Mr. P. Mohapatra learned counsel for the

petitioners and Mr. S.K. Mishra, learned Additional Standing

Counsel for the State.

5. Mr. Mohapatra would argue that taking of

cognizance and issuance of process is not an empty

formality. The Magistrate ought to have applied his judicial

mind to see whether issuance of process against the accused

persons was justified. Referring to the FIR and the statement

of the witnesses recorded by the I.O. under Section 161 of

IPC., Mr. Mohapatra would further contend that there is not

a whisper of allegation against the present petitioners and all

the allegations have been made in general and omnibus

manner to rope in all the family members of the husband of

the deceased. No specific overt act has been attributed to

either of the petitioners. According to Mr. Mohapatra

therefore, issuance of process against the present petitioners

is entirely illegal. In support of his contention, he has relied

upon some case laws namely, Kans Raj v. State of Punjab,

reported in (2000) 5 SCC 207; K. Subba Rao vs. The State

of Telengana (Criminal Appeal No. 1045 of 2018, decided on

21.08.2018); Kailash Chandra Agrawal v. State of U.P.,

reported in (2014) 16 SCC 551, Kahkashan Kausar v. State

of Bihar, reported in (2022) 6 SCC 599. Mr Mohapatra has

also relied upon the decision of this Court in the case of

Babaji Charan Barik vs. State, reported in (1994) 7 OCR 91.

6. Per contra, Mr. Mishra would argue that it is too

premature to conclusively hold whether the accused persons

are innocent or not. The FIR as well as the statements of the

witnesses recorded by the I.O. would go to the show that all

the family members of the husband of the deceased had

subjected her to physical and mental cruelty in connection

with demand for dowry on several occasions. Therefore,

taking cognizance of the offences and issuing process against

the accused persons cannot be faulted with.

7. In order to appreciate the contentions put forth

before this Court it is felt proper to first refer to the FIR

allegations. Reading of the FIR would show that according to

the informant, despite payment of cash of Rs.1,00,000/- and

other articles at the time of marriage "all the accused

persons" demanded further dowry. It was specifically alleged

that her husband used to assault her on several occasions

due to which she used to come and reside in her house and

on being convinced by her husband she would again go back

to her in-laws house. It is evident that nothing specific has

been alleged in so far as the present petitioners are

concerned. In the statements recorded by the I.O. under

Section 161 of Cr.P.C. also nothing has been stated by

Jharana Mahakud, mother of the deceased, the informant or

the other witnesses against the present petitioners. On the

contrary, four independent witnesses have been examined,

all of whom have stated that the deceased had a four month

old son, who frequently fell ill. It was the reason for discord

between her and her husband. One Haladhar Rout has also

referred to the quarrel between the husband and wife while

the child was being taken to the hospital in his Auto-

rickshaw. Thus, this Court finds considerable force in the

submission of Mr. Mohapatra that in so far as the present

petitioners are concerned nothing specific has been alleged

against them. Of course, the same cannot be said of the

husband of the deceased or the father in-law and mother in-

law.

8. Coming to the case laws cited by Mr. Mohapatra,

the case of Kahkashan Kausar (supra) also challenge was

made to the order of conviction. In the case of Babaji Charan

Barik (supra), this Court was deciding an appeal arising out

of conviction. The aforesaid decisions are therefore not

applicable to the case at hand. In the case of Kailash

Chandra Agrawal (supra) however the Apex Court observed

the following under paragraphs 8 and 9:

"8. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj v. State of Punjab [Kans Raj v. State of Punjab, (2000) 5 SCC 207 : 2000 SCC (Cri) 935] , it was observed: (SCC p. 215, para 5) "5. ... A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."

The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.

9. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of the court's process, quashing jurisdiction can be

exercised. Reference may be made to K. Ramakrishna v. State of Bihar [K. Ramakrishna v. State of Bihar, (2000) 8 SCC 547 : 2001 SCC (Cri) 27] , Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and Asmathunnisa v. State of A.P. [Asmathunnisa v. State of A.P., (2011) 11 SCC 259 : (2011) 3 SCC (Cri) 159]."

9. In the judgment rendered in K. Subba Rao

(supra), the Apex Court made the following observations.

"Criminal proceedings are not normally interdicted by us at the interlocutory stage unless there is an abuse of process of a Court. This Court, at the same time, does not hesitate to interfere to secure the ends of justice. See State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335. 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. See Kans Raj v. State of Punjab & Ors. (2000) 5 SCC 207 and Kailash Chandra Agrawal and Anr. v. State of Uttar Pradesh & Ors. (2014) 16 SCC 551."

10. It is debateable whether close family relations as

the brother of the husband of the deceased can be described

as „distant relatives‟. Nevertheless, this Court is of the view

that taking of cognizance and issuance of process are two

separate and distinct acts. In the former case, the Court

takes judicial notice of the offences that are alleged to have

been committed. In the latter however, the Court decides to

issue process against persons whom it thinks to have been

involved in the alleged occurrence, prima facie. It is trite that

an order issuing process cannot be issued mechanically. It

requires proper application of the judicial mind on the part of

the Court to be subjectively satisfied that the materials on

record do justify issuance of process against any particular

person. To such extent therefore, the impugned order

becomes vulnerable inasmuch as the same does not reflect

any such application of mind having been made by the

learned Magistrate. Since law requires the Magistrate‟s

subjective satisfaction to be recorded before issuing process,

any order passed to the contrary would not be tenable in the

eye of law. This Court however, observes that on the prayer of

the I.O. NBW has already been issued against the petitioners

even prior to the order taking cognizance and issuance of

process. Therefore, ends of justice would be best served if the

petitioners surrender before the Court below in obedience to

the non-bailable warrant of arrest and move for bail. In so far

as the order issuing process is concerned, this Court deems

it proper to interfere therewith by quashing the same in so

far as the same relates only to the present petitioners with

further direction to the learned Magistrate to consider the

point afresh strictly on the basis of the materials produced by

the prosecution.

11. The CRLMC is therefore disposed of in terms of the

observations made hereinabove.

...............................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 9th August, 2023/A.K. Rana/Deepak

Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication

Date: 09-Aug-2023 19:07:17