Dr. Deepak Padhi & Another vs State Of Odisha And Another
2023 Latest Caselaw 6536 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                    CRLMC No.2026 of 2017

  Dr. Deepak Padhi & Another            ....            Petitioners
                                Ms. Deepali Mahapatra, Advocate


                              -Versus-


  State of Odisha and Another            ....      Opposite Parties
                                          Mr. T.K. Mahapatra, SC
                           And
                     CRLMC No.568 of 2016

  Dr. Deepak Padhi & Others             ....            Petitioners
                                Ms. Deepali Mahapatra, Advocate


                              -Versus-


  State of Odisha                        ....        Opposite Party
                                          Mr. T.K. Mahapatra, SC

            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:19.05.2023

1.

Since the parties are common, both the petitions stand disposed of by the following order.

2. CRLMC No.568 of 2016: Instant petition under Section 482 Cr.P.C is at the behest of the petitioners challenging the impugned order dated 6th January, 2016 under Annexure-5 passed by the Court of learned S.D.J.M., Berhampur in connection with G.R. Case No. 468 of 2015, whereby, the cognizance of the offences under Sections 498(A), 406 and 506 read with 34 of the I.P.C and Section 4 of the D.P. Act was taken on submission of the chargesheet vide C.S. No. 97 dated 28th December, 2015 on the

ground that no any offence of cruelty is prima facie established all the more when the F.I.R. was lodged almost after twelve year from the date of marriage between petitioner No.1 and the informant.

3. CRLMC No. 2026 of 2017: In the instant case, the husband petitioner No.1 of the informant besides another, namely, petitioner No.2, who is alleged to be the live-in partner of petitioner No.1 have challenged the order of cognizance dated 15th May, 2017 passed in G.R. Case No. 108 of 2017 by the court of learned S.D.J.M., Berhampur and also to quash the entire proceeding on the grounds stated and for the fact that petitioner No.1 cannot be chargesheeted once again under Section 498-A IPC, he having been already chargesheeted for the said offence in G.R. Case No. 468 of 2015 and furthermore, offence under Section 494, I.P.C is not proved since there has been no second marriage between them.

4. In both the above cases, the informant (opposite party No.2) in CRLMC No. 2026 of 2017 lodged the F.I.Rs. alleging cruelty against petitioner No.1 and the latter's parents (petitioner Nos. 2 and 3 in CRLMC No. 568 of 2016). It has been alleged by the informant-wife of petitioner No.1 that she was subjected to mental and physical torture after her marriage held on 5th December, 2003. It is also alleged in the F.I.R. dated 4th May, 2015 (G.R. No. 468 of 2016) that from 2004 and onwards, she was subjected to abuse and ill-treatment in the hands of petitioner No.1 and her mother-in-law (petitioner No.3) and thereafter in 2006, petitioner No.1, to her utter surprise, filed MAT Case No. 46 of 2006 seeking divorce and dissolution of their marriage which was dismissed by the Family Court and also thereafter, by this Court, whereafter, she was continuously threatened over telephone and was also informed about the petitioner No.1s'

marriage with another woman. With such allegation, the F.I.R. was lodged, later to which, Berhampur Mahila P.S. Case No. 37 was registered under Sections 498-A, 494, 506, read with Section 34 I.P.C besides Section 4 of the D.P.Act. After the investigation was over, the petitioners (husband and parents-in-law) were chargesheeted under Section 498-A, 406, 506 read with Section 34 I.P.C besides Section 4 of the D.P. Act vide C.S. No. 97 dated 28th December, 2016.Thereafter, the informant lodged another F.I.R. vide Annexure-4 (G.R. Case No. 108 of 2017) alleging about an incident dated 23rd January, 2017, whereupon, Berhampur Mahila P.S. Case No. 4 dated 25th January , 2017 was registered under Sections, 498-A, 323, 506 read with 34 of the I.P.C. which also resulted in submission of chargesheet, consequent upon which, the learned S.D.J.M., Berhampur by order dated 15th May, 2017 (Annexure-6) took cognizance of the offences against the petitioners ( husband and live-in partner )

5. As against the above backdrop, it has been challenged by the petitioners that neither in G.R. Case No. 468 of 2016, mental cruelty is prima facie established since the F.I.R. was lodged almost after twelve years from the date of marriage nor a case under Section 498-A I.P.C can be made out on the strength of the second F.I.R., i.e. Annexure-4 for the learned Court below having taken cognizance of the said offence earlier in connection with G.R. Case No. 468 of 2015 and that apart, a case under Section 494 I.P.C is not proved at all in absence of any proof of second marriage.

6. Heard Ms. Mohapatra, learned counsel for the petitioners and Mr. Praharaj, learned Standing Counsel for the State-opposite parties besides Mr. Biswal, learned counsel for opposite party No.2 in CRLMC No. 2026 of 2017.

7. Ms. Mohapatra, learned counsel for the petitioners submits that the informant-wife alleged ill-treatment and the F.I.R was lodged on 4th May, 2015 which was almost after twelve years from the date of her marriage with petitioner No.1-husband. It is contended that if there was any such ill-treatment, as alleged in Annexure-1 (FIR dated 4th May, 2015), the informant could have lodged the report long before, however, much after her marriage in 2003, the case has been registered with false allegations made against the husband and parents-in-law. In other words, according to Ms. Mohapatra, learned counsel for the petitioners, the F.I.R. was lodged in 2015 by the informant as a counterblast to the divorce proceeding with false allegations. While contending so, Ms. Mohapatra cited a decision of the Apex Court in Rasmi Chopra Vrs. State of U.P and Another (2019) 15 SCC 357 while advancing an argument that the learned Court below fell into serious error in taking cognizance of the offence under Section 498-A I.P.C at the first instance when the F.I.R. was lodged after twelve years and thereafter, when the F.I.R dated 25th January, 2017 was lodged, inasmuch as, cognizance of the offence under Section 498-A I.P.C could not have been taken for the second time when the allegation of mental cruelty and torture was alleged earlier.

8. Apart from the above decision, Ms. Mohapatra relied on the following decision in Kartik Chandra [email protected] Kartik Chand Majhee and Others Vrs. State of Jharkhand and Another (2018) 13 SCC 747 to submit that since the informant lodged the F.I.Rs and initiated the criminal action which is manifestly attended with malafide or with a motive to wreak vengeance against petitioner No.1 in particular, inherent jurisdiction under Section 482 Cr.P.C. should be exercised to quash the impugned order of cognizance. Two more decisions, such as, Varala Bharath Kumar and Another Vrs. State of Telangana and Another (2017) 9 SCC 413 and

Shakson Belthissor Vs. State of Kerala and Another (2009) 14 SCC 466 have been referred to by Ms. Mohapatra to contend that it is a fit case for exercising extra-ordinary jurisdiction to quash the impugned orders and also the criminal proceedings.

9. Mr. Praharaj, learned Standing Counsel submits that after the F.I.R. was lodged by the informant-wife, there has been investigation held by the local police and thereafter, chargesheets have been submitted, which prima facie established allegations made against the husband-petitioner No.1 and others. It is also contended that the learned Court below has taken cognizable offence in respect of the chargesheets submitted for and in connection with different cause of action and hence, should not be interfered with.

10. Mr. Biswal, learned counsel for the informant-opposite party No.2 (for CRLMC No. 2026 of 2017) submits that though there has been F.I.R in the first case lodged in 2015 which was after about 10 to 12 years from the date of marriage between the informant and husband-accused, notwithstanding the fact that the latter initiated the divorce proceeding, the former since suffered the mental cruelty in the hands of petitioner No.1, rightly, therefore, on submission of chargesheet, the learned court below has taken cognizance of the offences. Furthermore, according to Mr. Biswal lodging the F.I.R in 2015 much after 2003 cannot be ground to quash the impugned order of cognizance and also the criminal proceeding. While contending so, Mr. Biswal cited a decision of the Madras High Court in the Case of Nakkeeran @ Jeroan Pandy Vrs. State and Another to justify lodging the F.I.R. in 2015. It is submitted that due to the mental trauma, the informant had to suffer on account of extra-marital relationship of petitioner No.-1, an offence under 498-A I.P.C is well made out. In support of the contention that an offence under Section 498-A

I.P.C is established, Mr. Biswal also relies on a decision of the Apex Court in KV Prakash Babu vs. State of Karnataka AIR 2016 SC 5430. Referring to the essential ingredients of Section 498-A I.P.C, it is also contended by Mr. Biswal that an offence of cruelty is proved when there has been mis-conduct on the part of petitioner No.1 and in-laws in that regard.

11. Inherent jurisdiction under Section 482 Cr.P.C. is to be exercised to advance the cause of justice. The scope and ambit of such power for quashing of criminal proceeding has been considered by the Apex Court on many occasions. In Mihir Kumar Vrs. State of U.P. (2017) 13 SCC 369, the Apex Court considered the powers and limitation in exercise of such extra-ordinary jurisdiction and held and observed that it may be invoked to prevent abuse of process of any Court or otherwise to secure the ends of justice. In State of Kerala Vrs. K. Mutuswamy (1997) SCC (Crl.)404, the Apex Court held that a proceeding may be quashed if a conclusion reached at that the same would be an abuse of process of the Court. At the same time, it has been held that the Court cannot permit the prosecution to go on if the case falls in one of the categories illustrated and enumerated in the State of Haryana and Others Vrs. Choudhury Bhajan Lal and Others 1992 Supp.(1)SCC 335. In the above decisions, the Apex Court held that the judicial process is a solemn proceeding, which cannot be allowed to be converted into an instrument of oppression and harassment and when there are materials which indicates that a criminal proceeding is manifestly attended with malafide and is maliciously instituted with an ulterior motive, power under Section 482 Cr.P.C may be exercised. The decisions in Rashmi Chopra, Varala Bharath Kumar and Shakson Belthissor (supra) relied on by Ms. Mohapatra, learned counsel for the petitioner are in the realm of exercise of inherent jurisdiction of Section 482 Cr.P.C. referring to which it is contended that since the first F.I.R.

was lodged with a long delay in 2015, the learned Court below fell into serious error in taking the cognizance of the offences and likewise vide Annexure-6, after the Second F.I.R was lodged. It is also contended that the learned Court below could not have taken cognizance of offence under Section 498-A I.P.C once again on the strength of the chargesheet in the second case. The offence under Section 494 I.P.C as according to Ms. Mohapatra is also not established as no proof of second marriage was placed on record before the learned Court below along with the chargesheets.

12. The first FIR is lodged on 1st May, 2015 with the allegation of cruelty against the petitioners (husband and parents-in-law). Ms. Mahapatra submits that the marriage between the informant and husband accused was held on 6th December, 2003 and sometime, thereafter, in the middle of 2004, the former returned to her parental home and in the meanwhile, a divorce proceeding was initiated by the latter in 2006. It is contended that almost after twelve years, the FIR was lodged by the informant-wife in 2015. As regards the second FIR, it is related to an incident dated 23rd January, 2017 during which informant alleged that she was assaulted physically by the petitioners. It is made to reveal from Annexure-3 in CRLMC No.2026 of 2017 that for the same incident, opposite party No.2 therein approached Airfield PS with counter allegation against the informant. In so far as the contention of Ms. Mahapatra that the second FIR dated 25th January, 2017 was not to be maintained in view of the first FIR lodged in 2015 is challenged by Mr. Biswal by stating that both the incidents are different and hence, rightly, it was entertained and after investigation, even led to submission of chargesheet. It is settled law that for a single incident, if there are more than one FIRs lodged, the second is to be clubbed with the first one being treated as a statement under Section 162 Cr.P.C. In the instant case, for separate incidents, FIRs have been lodged and therefore,

the chargesheets filed in both the cases were accepted by the learned court below. In fact, Ms. Mahapatra, learned counsel for the petitioners submits that the first FIR was lodged with inordinate delay and the essential ingredients of the offences are not made out, in particular, for the offence under Section 498-A IPC and apart from above, the chargesheet for the same offence for the second time is not tenable in law. The first FIR and statements of the informant and others have been referred to suggest that no case is cruelty established. According to the Court, leaving aside the delay as the first FIR was lodged in 2015 by itself cannot be held as a solitary ground to reject the claim of cruelty. Under what circumstances and with such delay, the first FIR was lodged is a matter to be examined by the learned court below especially for an offence under Section 498-A IPC since a cruelty may be mental with continuous cause of action. The informant since allegedly abandoned, as according to her, it might be alleged that she was under constant stress for the conduct of the accused husband, who filed a divorce proceeding and was allegedly staying with another lady. So, therefore, delay may not be always fatal when the allegation is of metal cruelty. However, the Court is to refrain itself from reaching at any such conclusion on cruelty which should be left open for examination during enquiry and trial. One additional ground is raised by the petitioners that there is no cruelty or ill-treatment to the informant on account of dowry demand and hence, an offence under Section 498-A IPC is not made out. Such contention of Ms. Mahapatra received resistance from Mr. Biswal by referring to decision in K.V. Prakash Babu (supra). There is no denial to the fact that a willful misconduct which is likely to cause injury to a woman whether mental or physical as per the Explanation (a) to Section 498-A IPC would amount to cruelty. In the case at hand, the informant since alleged ill-treatment both mental and physical

which continued till such time when she noticed another woman in the life of her husband, it could well be said that there was cruelty suffered all through. So, being aware of the fact that cruelty is not made out only for any unlawful demand, an offence under Section 498-A IPC may still be alleged when the misconduct endangers mental or physical health of a woman. Notwithstanding delay in lodging of the first FIR, it would not be justified to reject the allegation of cruelty of the informant at the threshold. Merely referring to the FIR and couple of statements, it would also be unjustified to jump to a conclusion that an offence under Section 498-A IPC not to have been made out.

13. So far as the second FIR is concerned, the learned court below has once again taken cognizance of the offence under Section 498-A IPC, which in the considered view of the Court, was unnecessary, as in any case, the husband-accused stands chargesheeted for the said offence in connection with the first FIR. As to the partner of the accused-husband, she stands chargesheeted for the second incident and for other offences. Being a chargesheet already in place from the first FIR, to frame the accused-husband once again for an offence under Section 498- A IPC is not sustainable. With respect to the offence under Section 494 IPC, the Court does not have the comfort to go through the entire of the materials to find out whether the accused-husband married for the second time during the subsistence of the first marriage although there has been some evidence brought forth to show that he was found staying with another woman. In the first FIR, the informant alleged relationship of the accused husband with a woman and likewise she had found the latter staying with a lady when she had been to Bhubaneswar, whereafter, the second FIR was lodged. It has been denied by the accused- husband by claiming that the lady with whom he was found staying happens to be his live-in partner. Admittedly there is no

evidence about any such second marriage. As earlier stated, the Court does not have the benefit of the entire evidence submitted along with the chargesheet. If there is no second marriage, no offence under Section 494 IPC would be made out which may also be examined by the learned court below during enquiry and trial, if the accused-husband is not discharged for the same. Considering the totality of the facts and circumstances of the case, the Court reaches at a logical conclusion that inherent jurisdiction is not to be exercised to set at naught both the proceedings except to the extent and in relation to Section 498-A IPC corresponding to G.R. Case No.108 of 2017. The ground with regard to territorial jurisdiction is left unanswered and unattended to leaving the petitioners in CRLMC No. 2026 of 2017 to work out the remedy as available under law.

14. Hence, it is ordered.

15. In the result, CRLMC No.2026 of 2017 stands allowed in part. Consequently, the impugned order dated 15th May, 2017 passed in G.R. Case No.108 of 2017 is set aside vis-à-vis offence under Section 498-A IPC only and not the remainder. As to CRLMC No.568 of 2016, the same stands dismissed as a whole. However, the petitioners in both the cases are allowed the liberty to plead for discharge during enquiry on any such specific grounds which in the event applied for and moved, it shall be considered by the learned S.D.J.M., Berhampur according to law without being influenced by any of the observations made herein above.

(R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 20-May-2023 11:51:51 Balaram/Tudu