Orissa High Court
Jayanta Kumar Dash @ Litu vs State Of Orissa And Another on 3 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1947 of 2021
Jayanta Kumar Dash @ Litu .... Petitioner
Mr.Devashis Panda, Advocate &
Mr. S. Panda, Advocate
-Versus-
State of Orissa and Another .... Opposite Parties
Mr. S.S.Mohapatra, ASC
Mr. J.P. Behera, Advocate for O.P. No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:03.07.2023
1.
Instant petition under Section 482 Cr.P.C. is at the behest of
the petitioner challenging the criminal proceeding in connection
with CT(S) No.94 of 2018 and its continuance before the court of
learned Sessions Judge, Dhenkanal on the grounds inter alia that
the FIR and other materials on record do not make out a prima
facie case against him and particularly with respect to an offence
punishable under Section 376(2)(n) IPC for which he has been
charged with besides Section 328 and 506 IPC and Sections 66-E
and 67-A IT Act 2000 which is, therefore, to be quashed in
exercise of the Court's inherent jurisdiction.
2. The FIR was lodged by the informant on 4th March 2018
alleging therein the mischief committed by the petitioner as
against the victim daughter. In fact, the events and circumstances
leading to the lodging of the FIR (Annexure-1) have been
described therein by the informant mother. Later to the FIR
lodged and on completion of investigation, a chargesheet under
the alleged offences was submitted against the petitioner,
Jayanta Kumar Dash @ Litu Vrs. State of Orissa and Another
consequent upon which, charge was framed and trial started.
Later to the commencement of trial, referring to the evidence of
the victim and other materials with subsequent developments, the
entire proceeding pending before the learned Sessions court has
been challenged by the petitioner demanding that it is needed to
be quashed in the interest of the justice.
3. Heard Mr. Panda, learned counsel for the petitioner, Mr.
Mohapatra, learned counsel for the State besides Mr. Behera,
learned counsel for the party No.2.
4. After the FIR was lodged by the informant, Gondia PS Case
No. 36 dated 4th March 2018 was registered under Sections
292(A), 354(C) and 506 IPC and Sections 66-E and 67-A IT Act
but finally, the chargesheet was submitted for an offence under
Section 376(2)(n) IPC as well. Thereafter, the learned court below
framed the charge for all the offences including Section 376(2)(n)
IPC. The prosecution of the petitioner particularly for an offence
of rape punishable under Section 376(2) (n) IPC is challenged on
the ground that it is not prima facie made out as against the
background facts especially considering the consensual
relationship between the parties and that the victim declined to
be medically examined and her marriage with the petitioner in
the meantime. Whether with the allegations on record and
framing of a charge under section 3762(j)(n) IPC and later to the
commencement of the trial, inherent jurisdiction under section
482 Cr.P.C should at all with exercised to quash the proceeding
on any such grounds raised.
5. Mr. Panda, learned counsel for the petitioner cited the
following decisions, such as, Ramawatar Vrs. State of MP
(Criminal Appeal No.1392 of 2011) decided on 25th October
2021; Ramgopal and Another Vrs. State of U.P. dated 29th
Jayanta Kumar Dash @ Litu Vrs. State of Orissa and Another
September, 2021 (Criminal Appeal No.1489 of 2012) besides
Ananda D.V. Vrs. State and Another (Criminal Appeal No.394-
395 of 2021) disposed of by order dated 12th April, 2021 to
contend that extra-ordinary jurisdiction of this Court is required
to be exercised in the best interest of the parties notwithstanding
the commencement of trial for the reason that after settlement of
the dispute, the petitioner and opposite party No.2 have married
and happily leading their conjugal life at present. It is further
submitted that there is no bar or any kind of restriction in the
exercise of inherent jurisdiction under Section 482 Cr.P.C. at any
stage of the criminal proceeding and even during the pendency of
appeal, if it is really needed to do complete justice to the parties
involved. Referring to the decision in Ramawatar (supra), it is
contended that powers under Section 482 Cr.P.C. and Article 142
of the Constitution of the India are exercisable even at the stage
of posed-conviction. The decision in Ramgopal (supra) is placed
reliance on by Mr. Panda to submit that the criminal proceeding
before the learned court below wherein trial has commenced
should be brought to an end and terminated considering the
special circumstances and in particular, the marriage having taken
place between the parties in order to ensure stability in their
marital life irrespective of the nature of one of the offences
alleged is punishable under Section 376(2)(j)(n) IPC. Similarly,
referring to the order in Ananda D.V. (supra), the quashing of the
criminal proceeding against the petitioner is insisted upon, as in
the said case, the parties had resolved their dispute after
registration of the FIR and eventually got married. An additional
citation in Sudhira @ Biswa Pratap Dalei and Another Vrs. State
of Odisha and Another decided in CRLMC No.1077 of 2021 and
disposed of on 24th August, 2021 is submitted, wherein, the case
was registered under Section 376(2)(n) IPC with other allied
offences including Sections 6 and 7 of the POCSO Act and therein,
Jayanta Kumar Dash @ Litu Vrs. State of Orissa and Another
the victim apparently left her parental house and joined the
company of the accused and subsequently on attaining her
majority married the latter. So, therefore, leaving aside other
grounds, the contention is that continuance of the prosecution in
C.T.(S) No.94 of 2018 should be quashed against the petitioner in
view of the subsequent development of his marriage with
opposite party No.2 and for the fact that both are staying
together and leading a happy and peaceful conjugal life.
6. Mr. Mohapatra, learned ASC for State on the contrary
submitted that the allegations against the petitioner are serious in
nature which includes rape alleged by opposite party No.2 and in
the meantime, the trial has commenced and even the victim was
examined and therefore, under the aforesaid circumstances, the
criminal proceeding pending before the learned Sessions court
should not be quashed more so when the major offences are non-
compoundable in nature. In other words, it is contended that
considering the gravity of the offences alleged, it is not a fit case
where inherent jurisdiction should be exercised and if allowed to
happen, it would have an adverse influence on the society at
large and while advancing such an argument, Mr. Mohapatra
cited the decision of the Apex Court in the case of Parbatbhai
Aahir @ Parbatbhai Bhimsinhbhai Karmur and Other Vrs. State of
Gujarat AIR 2017 SC 4843, wherein, it has been held that power
under Section 482 Cr.P.C. and while dealing with the plea that
the dispute has been settled, the Court must have due regard to
the nature and gravity of the offence. It is further observed
therein that heinous and serious offences involving mental
depravity or offences, such as, murder, rape and dacoity cannot
appropriately be quashed though the victim or her family has
settled the dispute since such offences are not private in nature
but have a serious impact upon the society and for that matter,
Jayanta Kumar Dash @ Litu Vrs. State of Orissa and Another
the decision to continue with the trial in cases of such nature is
founded on the overriding element of public interest in punishing
persons of serious offences. Hence, it is submitted that as the
petitioner is facing trial for an offence of rape, even if the parties
have married in the meantime by itself cannot be a ground to
quash the prosecution in view of the legal position enunciated
Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur (supra).
7. The submission of Mr. Behera, learned counsel for opposite
party No.2 is recorded.
8. Admittedly, the petitioner is now facing trial for the charged
offences which includes Section 376(2)(j)(n) IPC. A copy of the
charge heads dated 5th August, 2019 is at Annexure-2. The FIR
(Annexure-1) was lodged by the mother of opposite party No.2.
As per the FIR, the petitioner appears to be a distant relation of
the informant. In the said FIR, it has been alleged that the
petitioner was responsible in breaking the marriage proposal and
engagement of the informant's daughter which was to he held on
8th March, 2018. In fact, Annexure-1 made to suggest that the
petitioner was against the alleged proposal and marriage of
opposite party No.2 as he was in a relationship with the latter. As
per the informant, which is revealed from Annexure-1, the
petitioner committed further mischief in sharing some personal
objectionable photographs of opposite party No.2 with the
would be bridegroom. With the above allegation, Gondia P.S.
Case No.36 was registered. As such, there was no case under
Section 376(2) IPC initially registered which was added later on.
As stated, the trial has already commenced. A copy of the
deposition of opposite party No.2 examined on 15th October,
2019 as P.W.2 is at Annexure-3. In support of the claim of
marriage between the parties, an affidavit sworn by opposite
party No.2 dated 18th October, 2021 is placed on record along
Jayanta Kumar Dash @ Litu Vrs. State of Orissa and Another
with a copy of Marriage Certificate dated 28th September, 2021
and the identify proof, such as, copies of the Aadhar cards duly
signed by both the parties. As against the aforesaid backdrop, the
question is, when the petitioner is facing trial for an offence under
Section 376(2)(j)(n)IPC, whether, the criminal prosecution against
him pending before the learned Sessions court should be quashed
in view of his marriage with opposite party No.2?
9. It is well settled law that the jurisdiction under Section 482
Cr.P.C. is not fettered with any restriction. To meet extra-
ordinary situations, the inherent power may be invoked to do
substantial justice. Even if an offence is non-compoundable, the
same shall not stand as a bar for the Court from exercising the
jurisdiction if it is really required to secure the ends of justice. If
there is a remote possibility of an outcome in favour of the
prosecution due to certain developments taking place involving
the parties, under such circumstances, it would not be unjustified
if the power conferred under Section 482 Cr.P.C. is exercised to
quash the criminal proceeding. It depends on the facts and
circumstances of each particular case to decide whether inherent
jurisdiction should at all be exercised. To blindly express inability
to such exercise of power merely for the reason that a serious
offence is involved is not a pragmatic approach. At times, special
circumstances demand exercise of inherent power the purpose
being to do and deliver justice to the parties even where any
offence is serious and non-compoundable in nature. If there is a
relationship between the parties; or the victim said to have
eloped with the accused leading to the registration of a case for
an offence of rape and/or under the POCSO Act; or where after a
consensual relationship, an allegation of sexual mischief is made
by the victim, when her marriage with the accused did not
materialize initially but at the end as against the above
Jayanta Kumar Dash @ Litu Vrs. State of Orissa and Another
background, marriage has taken place with the differences settled,
the Court does not find any reason as to why inherent jurisdiction
should not be exercised. If in such situations, the prosecution
would be allowed to continue, the same would definitely result in
immense inconvenience and hardship to the parties, who are
settled and and leading a happy marital life. It may be that in case
the prosecution continues after the marriage between the accused
and victim, there may be a remote possibility of any conviction as
the latter is unlikely to depose against the former. But in other
cases, where the offences are such and the dispute between the
parties even though settled, it would not be appropriate for the
Court to exercise inherent power quashing the criminal
prosecution. In other words, where under special circumstances,
some of which have been illustrated herein before, if the dispute
is settled between the parties resulting in their marriage, the Court
is of the humble view that it should not shot its eye and deny
exercising inherent power.
10. In Ananda D.V. (supra), the Apex Court considering the
marriage between the parties, quashed the FIR since the dispute
was fully resolved. This Court in Jayanta Kumar Dash @ Litu
(supra), having regard to the fact that the victim, a minor by the
time of alleged occurrence, since eloped with the accused and
subsequently, married him, exercised the jurisdiction under
Section 482 Cr.P.C. and quashed the proceeding pending before
the Special court. In Ramawatar (supra), the Supreme Court
discussed in detail about the manner in which jurisdiction under
Section 482 Cr.P.C. should be exercised and finally quashed the
criminal proceedings which involved an offence under the SC&ST
(PoA) Act so as to do complete justice between the parties and
reiterated therein that such power is exercisable at post-conviction
stage. Similar is the view expressed by the Supreme Court in
Jayanta Kumar Dash @ Litu Vrs. State of Orissa and Another
Ramgopal (supra). In so far as the authority in Parbatbhai Aahir
@ Parbatbhai Bhimsinhbhai Karmur (supra) is concerned, a
general law has been laid down that in serious offences like rape,
murder, dacoity etc. power under Section 482 Cr.P.C. is not to be
exercised. It does not mean that under circumstances such as
marriage between the parties even after a failed or disturbed
relationship, such jurisdiction cannot at all be exercised which is
not to be deduced as a ratio of the aforesaid decision. Under the
circumstances, some of which have been outlined before though
not exhaustive, keeping in view the special situations, according
to the Court, extra-ordinary power may be exercised so as to
advance real justice. It is no doubt that cases involving offences of
grievous nature committed in a given set of facts unlike the
illustrated ones, the Court is not to invoke such jurisdiction since it
would impact the society. But in befitting cases, where its exercise
is really needed to do complete justice, compromise and
settlement of dispute resulting in marriage between the parties
even involved in a strained relationship may be a justifiable
ground to bring an end to the prosecution and terminated.
11. In the instant case, indisputably, the marriage has taken place
between the parties. The victim has filed an affidavit to that effect
stating that she is presently leading a settled marital life. From
Annexure-1, it is made to suggest that in some manner both the
parties developed relationship after their brief encounter. Of
course, the petitioner alleged to have committed certain mischief
when the marriage of opposite party No.2 was proposed
elsewhere perhaps as a reaction to it. The petitioner is not an
outsider but distantly related to the informant as disclosed in
Annexure-1. After marriage of the victim was fixed at another
place, the petitioner did the mischief and was allegedly
instrumental in breaking the former's engagement. Though the
Jayanta Kumar Dash @ Litu Vrs. State of Orissa and Another
conduct of the petitioner is condemnable but as it seems, the
same was while encountering an adverse situation. Nevertheless,
Court does not in any manner approve such conduct of the
petitioner. But, at the same time, considering the circumstances
and subsequent marriage, the Court is also of the view that the
prosecution needs termination to ensure peace and stability in the
lives of the parties. Before parting with, the Court has gone
through the nature of evidence deposed by opposite party No.2
which is on record. Under the special circumstances and having
regard to the settled position of law discussed above, the Court
does feel that it is a fit case where inherent jurisdiction should be
exercised in the best interest of the parties.
12. Accordingly, it is ordered.
13. In the result, the petition stands allowed. As a necessary
corollary, the criminal proceeding in connection with CT(S)
No.94 of 2018 pending before the learned Sessions judge,
Dhenkanal corresponding to G.R.Case No.222 of 2018 arising out
of Gondia PS Case No. 36 dated 4th March, 2018 is hereby
quashed vis-à-vis the petitioner for the reasons discussed herein
before.
(R.K. Pattanaik)
Judge
Signature Not Verified
Digitally Signed Tudu/Roji
Signed by: THAKURDAS TUDU
Reason: Authentication
Location: OHC,CTC
Date: 04-Jul-2023 21:04:58
