Pinky @ Bhagyalaxmi Behera vs State Of Odisha And Another
2023 Latest Caselaw 954 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                     CRLMC No.1482 of 2021

  Pinky @ Bhagyalaxmi Behera                 ....               Petitioner
                                            Mr. R.K. Routray, Advocate


                                 -Versus-


  State of Odisha and Another                ....  Opposite Parties
                                              Mr. P.K. Rout, AGA
            Mr. P.C. Behera&Mr. K.C.Sahoo, Advocates for OP No.2
            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:30.01.2023


1.

The petitioner sister-in-law has knocked the doors of the Court challenging the criminal proceeding initiated at the instance of opposite party No.2 corresponding to G.R. Case No.116 of 2017 arising out of Madhupatna P.S. Case No.9 of 2017 pending in the file of learned J.M.F.C.(City), Cuttack on the grounds inter alia that such prosecution unless interfered with would amount to miscarriage of justice and hence, for the said purpose, inherent jurisdiction under Section 482 Cr.P.C. is required to be exercised.

2. Opposite party No.2 lodged the FIR, a copy of which is at Annexure-1, with the allegations against her accused husband, who not only ill-treated her but also left her deserted in the year 2016 when both were staying at a place in the State of Tamil Nadu. Annexure-1 having been received, Madhupatna P.S. Case No.9 dated 23rd January, 2017 was registered under Sections 498- A, 323, 294, 506 read with 34 IPC.

3. It is being alleged by the petitioner that she had been falsely roped in despite having no specific role played by her towards the ill-treatment of opposite party No.2 which is alleged in

Pinky @ Bhagyalaxmi Behera Vrs. State of Odisha and Another

Annexure-1. That apart, attention of the Court is drawn to the fact that opposite party No.2 is not the legally wedded wife of the petitioner's brother which has been declared so by a decree of a Family Court. In fact, a copy of the judgment dated 12th February, 2021 passed in C.P. No.102 of 2019 by the learned Judge, Family Court, Cuttack as at Annexure-2 is referred to by the petitioner while denying the marital status of opposite party No.2 with her brother. On the aforesaid ground and also challenging the status of opposite party No.2 referring to the decree of the Family Court, the petitioner claims that the criminal proceeding as against in G.R. Case No.116 of 2017 pending before the learned court below should be quashed in the interest of justice.

4. Heard Mr. R.K. Routray, leaned counsel for the petitioner and Mr. P.K. Rout, learned AGA for the State.

5. While advancing the argument, Mr. Routray, learned counsel for the petitioner placed reliance on the following decisions, such as, Kahkashan Kausar @ Sonam and Others Vrs. State of Bihar (2002) 86 OCR (SC) 81; Geeta Mehrotra & Another Vrs. State of U.P. & Another (2012) 10 SCC 741 besides State of Haryana and Others Vrs. Choudhury Bhajanlal and Others AIR 1992 SC 604 which is with regard to the exceptions carved out for exercising inherent jurisdiction for quashing of the criminal proceedings. Apart from the above, Mr. Routray cited the decisions in Rajni and Others Vrs. State of U.P. and Another (Case No.17667 of 2016) dated 16th October, 2019 of the Allahabad High Court; Ramkumar Sarathe Vrs. State of M.P. (M. Cr. C. N. No.15859 of 2017) dated 23rd January, 2018 of the M.P. High Court; and Smt. Hemalatha A.C. Vrs. State of Karnataka and Another (Criminal Petition No.7977 of 2016) dated 9th September, 2019 of Karnataka High Court to contend that applying the principles laid

Pinky @ Bhagyalaxmi Behera Vrs. State of Odisha and Another

down and discussed in the aforesaid decisions, no prima facie case is made out against the petitioner and therefore, the criminal proceeding against her should to be quashed in order to prevent abuse of process of the law.

6. Mr. Rout, learned AGA, on the other hand, contends that the allegations in the FIR stand directed against the petitioner's family with regard to an incident which took place after opposite party No.2 was deserted by the principal accused and when she had to approach them for shelter and sustenance and at that point of time, the alleged overt acts were committed and hence, a prima facie case made out against the petitioner.

7. According to opposite party No.2, as revealed from the FIR (Annexure-1), she is married to the brother of the petitioner which had taken place for about four years by the time when the report was lodged and also gave birth to a male child but thereafter, her husband deserted. The alleged incident happened when opposite party No.2 somehow managed to reach to the family of the petitioner where it is being alleged that the petitioner and others threatened her with dire consequences and assaulted them for which she had to leave the place out of fear and as a result, she received a head injury and her sister and mother sustained injuries as well.

8. The question is, whether, the petitioner did play any role towards ill-treatment meted out to opposite party No.2 for which a case under Section 498-A IPC is said to have been committed by her even by considering and accepting the contents of Annexure-1 at its face value?

9. In Ch. Bhajanlal (supra), the Apex Court enunciated the law and laid down the principles for exercising the inherent jurisdiction with illustrations and conclusion that if the

Pinky @ Bhagyalaxmi Behera Vrs. State of Odisha and Another

uncontroverted allegations made in the FIR or in the complaint as well evidence collected in support of the same do not disclose commission of any offence, the proceeding in respect thereof may have to be quashed invoking Section 482 Cr.P.C. It has also been held therein that if the allegations are inherently improbable or there is any express legal bar or for that matter, a criminal proceeding is manifestly attended with malafide or ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge, under such circumstances, extra-ordinary jurisdiction should be exercised in order to do complete justice. More relevant for the present case is the decision in Kahkashan Kausar @ Sonam (supra), wherein, the Apex Court did have the occasion to consider flip side of the criminal prosecution especially involving and unnecessarily roping in the in-laws of the accused husband, when the allegations are general and omnibus. Mr. Routray, learned counsel for the petitioner has in fact heavily relied on the aforesaid decision by contending that the petitioner being the sister-in-law of opposite party No.2 is similarly circumstanced and hence, the proceeding as against her is to be terminated. The Family Court's decree is also cited as a piece of evidence to claim that opposite party No.2 not to be the legally wedded wife of the petitioner's brother so declared in C.P. No.102 of 2019 by the Family Court.

10. None represented opposite party No.2 when the matter was called.

11. Whether the decree of the Family Court has been challenged or set aside at the behest of opposite party No.2 could not be ascertained due to her absence before this Court. Hence, the Court proceeded on the premise that such an ex-parte decree in C.P. No.102 of 2019 still stands good vis-a-vis status of opposite party No.2 whereby she has been declared as not being the

Pinky @ Bhagyalaxmi Behera Vrs. State of Odisha and Another

legally married wife of the principal accused. Even assuming otherwise, when opposite party No.2 was in the company of the brother of the petitioner and both lived as husband and wife, in so far as the allegation of ill-treatment to her is concerned, there has to have some evidence on record. In fact, on a cursory glance of Annexure-1, the Court finds that the petitioner and others of her family are alleged of having abused and threatened opposite party No.2 during an incident when the latter had approached them for help and support. Can such conduct of the petitioner be said as sufficient to reach at a decision that she was guilty of mental cruelty and physical torture as is being alleged by opposite party No.2 in Annexure-1? It is not known to the Court as to if the petitioner has been chargesheeted for the alleged offence. No any copy of the chargesheet is made available to the Court. Anyhow the Court is to take a call with regard to sustainability of the criminal action considering the allegations contained in the FIR. The petitioner has brought to the notice of the Court with regard to FIRs lodged by her mother against opposite party No.2 registered as Madhupatna P.S. Case No.188 of 2018 corresponding to G.R. Case No.1719 of 2019 and Lalbag P.S. Case No.282 of 2019 which corresponds to G.R.Case No. 1843 of 2019 pending before the court of learned J.M.F.C.(City), Cuttack and S.D.J.M.(Sadar), Cuttack respectively, copies of which are at Annexure-4 series. It shows that the parties have been in litigating terms since 2017 and onwards as the subsequent events, for which the mother of the petitioner lodged the FIRs, did take place in 2019. As against the above background facts, the challenge to the criminal proceeding vis-a-vis the petitioner has to be examined referring to Annexure-1.

12. Even assuming for the sake of argument about existence of a relationship between the principal accused and opposite party

Pinky @ Bhagyalaxmi Behera Vrs. State of Odisha and Another

No.2, the Court is to find out and ascertain if at all any offence has been committed by the petitioner. In Kahkashan Kausar @ Sonam (supra), the Apex Court deprecated the roping in of the in- laws in criminal prosecution at the drop of a hat when there is insufficient evidence or having omnibus allegation. In Rajni and Others (supra), keeping in view the charges levelled against some of the in-laws and considering the statement of the victim under Section 161 Cr.P.C., arrived at a conclusion that there is no nexus between the demand with reference to dowry and hence, held that continuance of the proceeding as against them would be an abuse of the process of law. In Smt. Hemalatha A.C. (supra), in absence of any material or specific instances of cruelty, it was held therein that no offence under Section 498-A IPC is made out. In Ramkumar Sarathe (supra), a similar question arose and therein the chargesheet and criminal proceeding was quashed on an additional ground of absence of territorial jurisdiction of the local court.

13. In the instant case, the primary allegation is against the principal accused for the ill-treatment meted out to opposite party No.2 when she was deserted by him. The complaint against the petitioner is that she and other family members assaulted and threatened opposite party No.2 during and in course of an incident for which Annexure-1 was lodged. On a reading of the report lodged by the victim, the Court finds no any allegation of any cruelty levelled against the petitioner except the excess she alleged to have committed during the occurrence. So, having regard to the settled law laid down by the Apex Court in Kahkashan Kausar @ Sonam and Geeta Mehrotra (supra) besides other authorities referred to herein before, the Court is of the conclusion that an offence under Section 498-A IPC is prima facie not made out against the petitioner. Even assuming her to be the

Pinky @ Bhagyalaxmi Behera Vrs. State of Odisha and Another

sister-in-law, the Court is also of the view that the petitioner did play no role nor any specific instance of ill-treatment has been pleaded or alleged by opposite party No.2 save and except the excess committed during the incident when the victim had been to their house seeking support after the principal accused abandoned her. However to claim that the allegations of opposite party No.2 are to be rejected in its entirety would be unjustified. The conclusion would only be confined to the allegations of torture and the offence under Section 498-A IPC as against the petitioner, whose involvement and individual and specific participation has never been revealed by opposite party No.2.

14. Accordingly, it is ordered.

15. Consequently, the CRLMC stands allowed in part to the extent indicated. Consequently, the criminal proceeding in G.R. Case No.116 of 2017 arising out of Madhupatna P.S. Case No.9 of 2017 pending in the file of learned J.M.F.C.(City), Cuttack is hereby quashed only for the offence under Section 498-A IPC vis- a-vis the petitioner.

(R.K. Pattanaik) Judge

U.K. Sahoo