Orissa High Court

Sayad Sibgatullah @ Sifka vs State Of Orissa And Another on 27 January, 2023

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                 CRLMC NO.2726 of 2016

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

  Sayad Sibgatullah @ Sifka         .... Petitioner
  Tullha

                         -versus-

  State of Orissa and another       ... Opposite Parties
                                    .



  For Petitioner         :   Mr. G.Mukherji,
                             Sr. Advocate


  For Opposite           :   Mr. S.S. Pradhan, AGA
  Parties                    [O.P. No.1]
                             Mr. S.A.Nayeem,
                             Advocate[O.P.No.2]

     CORAM:
                   JUSTICE G. SATAPATHY

               DATE OF HEARING :10.01.2023
               DATE OF JUDGMENT:27.01.2023


G. Satapathy, J.

1. The petitioner seeks the indulgence of the

Court to quash the order passed on 02.07.2012 by

learned S.D.J.M.(S), Cuttack in G.R. Case No. 419 of

2011 taking cognizance of offences U/Ss.

448/294/506 of IPC under Annexure-3 and

consequently, the entire criminal proceeding arising

thereof.

2. Facts giving rise to this CRLMC in precise are

on 11.04.2011 OPNo.2 lodged an FIR against the

petitioner and his brother before the I.I.C.

Cantonment P.S. alleging therein that on 11.04.2011

at about 3.45 P.M. in the afternoon, while she being

the president of their organization was discussing

with the administrator of WAKF Board in his

chamber for issue relating to maintenance of

divorcee (Talaki) women, all of a sudden the sons of

the administrator namely, Sifka Tulla and Aheshan

Tulla along with seven to eight others by entering

into such chamber abused her in filthy language by

saying ("SALI BEDHEI GHODAGHEI THOTHE SALI

KIYEH KAHILA YEH CASERE MUNDA PURAIBAKU")

and the two brothers by saying as to why she was

pocking her nose on this issue pushed and pulled her

wearing apparels and when she protested, both of

them pushed and pulled her by holding tuft of her

hair and gave fist and kick blows. At this time, on

the commotion of the informant, the divorcee

women coming in front of the office raised hullah

and thereafter, they (two brothers and their

associates) pressed her(informant) neck and when

she shouted by saying "MARIGALI MARIGALI", they

jointly abused and threatened her to kill.

On the above FIR of OPNo.2, Cantonment P.S.

Case No. 39 of 2011 was registered and the matter

was investigated into by a SI of Police who

submitted charge sheet against the petitioner for

offences punishable U/Ss. 448/294/506 of IPC under

which cognizance was taken by impugned order.

Feeling aggrieved with the impugned order, the

petitioner has knocked the door of this Court in this

CRLMC for the relief indicated supra.

3. In the course of hearing of CRLMC, learned

counsel for the petitioner and State have filed

separate written note of submission along with

citations in addition to their oral submissions, but

none appears for OPNo.2 despite having appeared

through a learned counsel earlier.

4. Mr.G.Mukherjee, learned Senior Counsel for

the petitioner in course of argument has submitted

that the allegations on record do not disclose the

necessary ingredients for commission of offence

U/Ss. 448/294/506 of IPC and he, accordingly,

prayed to quash the impugned order as well as the

criminal proceeding against the petitioner by further

submitting that when the uncontroverted allegations

made in the FIR or complaint and evidence collected

in support of the same do not disclose commission

of any offence and make out a case against the

accused and where the allegations made in the FIR

and complaint are so absurd and inherently

improbable on the basis of which, no prudent person

can ever reach just conclusion that there is sufficient

grounds for proceeding against the accused, the

Court can terminate such proceedings by exercising

inherent power. In support of his contention, learned

Senior Counsel for the petitioner has relied upon the

case in State of Haryana and Others Vrs. Ch.

Bhajan Lal and Others; (1992) Supp (1) SCC

335.

4.1 In reply, Mr.S.S.Pradhan, learned AGA by

taking into the facts of the case submits that the

allegations on record disclose the necessary

ingredients of the offence with which the petitioner

has been alleged and finding prima facie case

against the petitioner, the learned S.D.J.M.(S),

Cuttack has taken cognizance of offences by the

impugned order and, therefore, the criminal

proceeding cannot be said to be an abuse of process

of Court. On the aforesaid submissions, the learned

AGA prays to dismiss the CRLMC.

5. In adverting to the rival submissions, there

appears no dispute about the grounds in which the

criminal prosecution can be quashed which has been

succinctly laid down by Hon'ble Apex court in

Bhajan Lal(supra) which is a locus classicus in

itself and the grounds enumerated in Paragraph-102

of the judgment for quashing of criminal cases are

reproduced as under for clarity:-

"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not primfacie constitute any offence or make out a case against the accused.

(2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate,

as contemplated under section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) to the institution and continuation of the proceedings and/are where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.

                 (7) Where a criminal proceeding is
            manifestly    attended     with   malafide
            and/are     where    the   proceeding     is

maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

In this case, the petitioner has taken the

refuge of ground No.3 for quashing the criminal case

against him and, therefore, on proceeding to

scrutinize the materials placed on record to ascertain

whether allegations made in the FIR or complaint

and the evidence collected in support of the same

disclose the commission of any offence and make

out any case against the petitioner, it appears that

the essence of ingredients of Section 294 of IPC

rests and starts with "whoever, to the annoyance of

others" but a careful perusal of FIR and statement of

witnesses as produced by the petitioner never

discloses such ingredient that the obscene words

uttered by the petitioner had caused annoyance to

anybody and thereby, the ingredients of Section 294

of IPC is never made out by the prosecution papers.

Since the place of occurrence as revealed from the

case was the Chamber of father of the petitioner

thereby, the entry of the petitioner into such

Chamber cannot amount to house trespass, unless

his father is aggrieved with such entry of the

petitioner and that too, such entry shall be with

intention to commit crime. It is, therefore, very clear

that the unrebutted allegation as appearing in the

FIR and statement of the witnesses recorded U/S.

161 Cr.P.C. do not prima facie disclose commission

of any offence either U/S. 294 or 448 of IPC nor the

ingredients of such offences are found out from the

material allegations on record.

6. On coming back to the next offence i.e.

offence U/S. 506 of IPC, it appears that there are

some allegations against the petitioner for

threatening the informant as emerging from the FIR

and statement of witnesses but law is very well

settled on this point that mere outburst of some

words of threatening without causing alarm in the

mind of sufferer would not perse attract the offence

U/S. 506 of IPC. For clarity, the ingredients of

criminal intimidation as found in Section 503 of IPC

is extracted below:-

(i) There must be an act of threatening to another person.

(ii) Such threatening must be intended to cause an injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested.

(iii) Such threatening must be with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit

to do any act which that person is legally entitled to do.

7. It is no doubt found out from the perusal of

allegations on record that the petitioner had

extended threatening to the victim by use of word

but nowhere in the record, it has been stated by the

informant or any other witness that such threatening

caused alarm in their mind. Mere threat extended by

the petitioner to the informant as alleged without

causing alarm in her mind would not perse

constitute the offence of criminal intimidation.

8. A careful analysis and reading of allegations

on record and accepting the same at their face value