Swadhin Pallei @ Swadhin Kishore vs State Of Orissa & Another
2023 Latest Caselaw 6808 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                    CRLMC No. 876 of 2022

  Swadhin Pallei @ Swadhin Kishore   ....             Petitioner
  Pallai
                       Mr. Sidharth Das, Advocate & Associate



                              -Versus-


  State of Orissa & Another             ....       Opposite Parties
                          Mr. Sitikanta Mishra, ASC for O.P.No.1
                                             None for O.P.No.2
            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:30.05.2023

1.

Instant petition under Section 482 Cr.P.C. is filed by the petitioner questioning the legality and judicial propriety of the criminal proceeding in connection with G.R.Case No.413 of 2012 pending in the file of learned SDJM, Koraput corresponding to Jeypore, Mahila P.S. Case No.26 of 2012 registered under Sections 498-A, 293,323,406 and 506 read with 34 IPC besides Sections 4 and 6 of the Dowry Prohibition Act.

2. As made to reveal from the record, the informant-opposite party No.2 lodged an FIR dated 26th July, 2012, as a result of which, Jeypore Mahila P.S. Case No. 26 was registered under the alleged offences. In the said FIR as at Annexue-1, opposite No.2 described about the details of the ill-treatment, she was meted out in the hands of the petitioner and other accused persons including her husband since her marriage in 2009. It has been alleged therein by the informant that the husband-accused barely few days after their marriage subjected her to mental cruelty so also her parents-in-law. The allegation in Annexure-1 implicates the

Swadhin Pallei @ Swadhin Kishore Pallai Vrs. State of Orissa & Another

petitioner, who happens to be the brother-in-law of opposite party No.2, besides his sister (informants' sister in-law). After the report was lodged, local police conducted investigation which finally resulted in submission of chargesheet against all the accused persons including the petitioner. The very initiation of the criminal prosecution vis-à-vis the petitioner is under challenge on the ground that he is not involved in the alleged ill-treatment and there has been no specific allegation against him in Annexure-1 either. In other words, according to the petitioner, the investigation was not properly conducted and mechanically the chargesheet was filed against him and therefore, the criminal proceeding in G.R. Case No.413 of 2012 is liable to be quashed.

3. Heard Mr. Das, learned counsel for the petitioner and Mr.Mishra, learned ASC for the State-opposite party No.1. No one appears for opposite party No.2 despite notice through paper publication.

4. Mr. Das, learned counsel for the petitioner submits that the allegation against the petitioner is not specific, inasmuch as, no specific role has been attributed to him with regard to the alleged ill-treatment claimed by the informant-opposite party No.2, the fact which was completely lost sight of while submitting the chargesheet. It is claimed that there is only a casual reference about the petitioner and with a general allegation that he has been implicated by opposite party No.2 and therefore, keeping in view the settled legal position, the criminal prosecution against him cannot be sustained in law. Mr. Das cited the following decisions, such as, Preeti Gupta and Another Vrs. State of Jharkhand and Another (2010) 7 SCC 667; Geeta Mehrotra & Another Vrs. State of UP & Another (2012) 10 SCC 741; K. Subba Rao Vrs. State of Telangana 2018 14 SCC 452 besides recent

Swadhin Pallei @ Swadhin Kishore Pallai Vrs. State of Orissa & Another

decision of the Apex Court in the case of Kahkashan Kausar @ Sonam & Others Vrs. State of Bihar & Others (2022) 86 OCR (SC) 81 to contend that unless and until there is specific role attributed against an accused, barely by accepting the allegations in the FIR, any such criminal action and prosecution would be unjustified and illegal, as in the present case, involving the petitioner, who is the brother in-law of opposite party No.2 and there has been no specific imputation against him which really warranted a criminal action.

5. On the contrary, Mr. Mishra, learned ASC for the State- opposite party No.1 submits that the criminal proceeding against the petitioner should not be quashed in view of the fact that after the FIR was lodged by opposite party No.2, an investigation was held and at last, the chargesheet was submitted. It is further submitted that evidence against petitioner was received during investigation, which is led to the submission of chargesheet against him. The nature of allegation vis-à-vis the petitioner shall have to be examined during inquiry and trial before the learned court below and therefore, the criminal proceeding against him should not be quashed in exercise of the Courts' inherent jurisdiction which is rarely invoked.

6. Annexure-1 is perused by the Court. As earlier mentioned the marriage between opposite party No.2 and accused husband took place in the year 2009 and at that time, the certain demands were allegedly made and fulfilled and according to opposite party No.2, thereafter, she was subjected to mental and physical torture by the in-laws. In fact, opposite party No.2 alleged that attempts were made to kill her on many occasions at the time when after marriage, she joined her accused husband and even thereafter.

Swadhin Pallei @ Swadhin Kishore Pallai Vrs. State of Orissa & Another

The question is, whether, the petitioner is liable for any criminal prosecution considering the allegation on record.

7. A sum and substance of the contention of Mr. Das, learned counsel for the petitioner is that the petitioner is the brother in- law of opposite party No.2 and he was in no way responsible for the alleged demand, ill-treatment and torture which is alleged in Annexure-1. It is claimed that the petitioner is the younger brother in-law and he is serving at Mumbai since long and at no point of time, he ever stayed with opposite party No.2 after the latter's marriage with his brother accused. Mr. Das submits that without any basis, the petitioner has been falsely implicated by opposite party No.2 which, thereafter, led to the filing of the chargesheet against him. In Kahkashan Kausar @ Sonam (supra), the Apex Court in absence of any specific role attributed to the accused persons therein held and observed that it would be unjust for them to face the prosecution and to go through the tribulations of a trial, especially, when general and omnibus allegations have been made. In K. Subba Rao (supra), the Supreme Court had also observed that the Court should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. According to the Apex Court, in the aforesaid decisions, the relatives of the husband should not be unnecessarily roped in on the basis of omnibus allegations unless specific instances of their involvement are alleged and prime facie made out. The Supreme Court in Geeta Mehrotra also shared a concern especially with regard to the allegations made in matrimonial dispute Case and held that there has been an outburst of such disputes in recent times. It is also observed therein that marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully; but little matrimonial skirmishes suddenly erupt which assume serious

Swadhin Pallei @ Swadhin Kishore Pallai Vrs. State of Orissa & Another

proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are helpless on their being arrayed as accused; there are many reasons which need not be mentioned for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process, the parties lose their young days in chasing cases in different courts etc.

8. If the above decisions are properly read and understood, the irresistible conclusion would be that if there is no specific allegation against any of the accused or the allegations are general or omnibus without any specific role being attributed against him or her, the criminal prosecution against the particular accused should be terminated. Applying the above law enunciated by the Apex Court to the fact of the present case, the Court is to find out and ascertain from Annexure-1 and other materials on record submitted along with the chargesheet, as to if, any such specific allegation stands against the petitioner who is stated to be the younger brother in-law of opposite party No.2.

9. Having perused the F.I.R. i.e. Anneuxre-1, the Court finds that though there is elaborate description about the ill-treatment of opposite party No.2 but nowhere any specific role is alleged against the petitioner. In fact, a common allegation has been made that on certain occasions, all the in-laws including the petitioner, did commit the mischief and subject her to mental and physical torture. The opposite party No.2 rather alleged physical abused against the parents-in-laws and also the ill-treatment received from her husband accused. There is also some allegation

Swadhin Pallei @ Swadhin Kishore Pallai Vrs. State of Orissa & Another

in the F.I.R against the sister in-law to the effect that she is also involved in ill-treating opposite party No.2. Whether the petitioner being the younger brother-in-law of opposite party No.2 had any role at the time of alleged dowry demand and thereafter, at any time misconducted himself and committed any kind of mischief with specific instances is not discernable from Annexure-1. Quite a common allegation has been made against the petitioner claiming that he was also involved with other in- laws including husband of opposite party No.2. From Annexure-1, it is made to suggest that opposite party No.2 joined her accused- husband stayed with him and also in-laws at Delhi and thereafter at Mumbai and during that time, she is claimed to have been ill- treated and assaulted. The chargesheet is however not submitted under Section 307 IPC considering the allegation of opposite party No.2 that attempts were made to kill her. The Court also referred to the CD and other material evidence as produced by the State in course of hearing. But perusal of it, the Court had difficulty to find out any specific instances involving the petitioner or could pinpoint role played by him in the ill-treatment of opposite party No.2 save and except general or casual references.

10. Taking into account the settled legal position as delineated by Apex Court in Kahkashan Kausar @ Sonam (supra) referring to its earlier judgments, the Court reaches at a logical conclusion that for such common, omnibus or general allegation against him, the prosecution which has been initiated and levied against the petitioner should not be allowed to survive and continue.

11. Accordingly, it is ordered.

12. In the result, the petition stands allowed. As a necessary corollary, the order of cognizance dated 1st May, 2013 and the proceeding in connection with G.R.Case No.413 of 2012 pending

Swadhin Pallei @ Swadhin Kishore Pallai Vrs. State of Orissa & Another

in the file of learned SDJM, Koraput corresponding to Jeypore Mahila P.S. Case No.26 of 2012 are hereby quashed vis-a-vis the petitioner.

(R.K. Pattanaik) Judge

kabita

Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: OHC,Cuttack Date: 30-May-2023 14:37:41