Nrusingha Charan Pati And vs State Of Orissa And Another
2023 Latest Caselaw 13098 Ori

    IN THE HIGH COURT OF ORISSA AT CUTTACK
                CRLMC NO. 4078 of 2023

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

   Nrusingha Charan Pati and   ...                   Petitioners
   another
                      -versus-
   State of Orissa and another        ...     Opposite Parties

   For Petitioners            : Mr. G.M. Rath, Advocate

   For Opposite Parties        : Mrs. S.R. Sahoo,
                                 Mr. B. Pujari, Advocate
                                 (for O.P. No.2)

        CORAM:
                   JUSTICE G. SATAPATHY

            DATE OF JUDGMENT : 19.10.2023


G. Satapathy, J.

1. This application U/S 482 Cr.P.C. by the

petitioners seeks to quash the order passed on

23.08.2023 and 29.09.2019 by the learned

S.D.J.M.(S), Cuttack in G.R. Case No.1818 of 2018

and consequently, the entire criminal proceeding

arising there from.

2. It is clarified that in the aforesaid case,

cognizance was taken by an order passed on

29.09.2019, whereas discharge petition of the

petitioners was rejected by the learned S.D.J.M.(S),

Cuttack by an order passed on 23.08.2023, but the

petitioners had also approached this Court for

quashing of the cognizance order passed on

29.09.2019 in CRLMC No. 4045 of 2022, which was

disposed of as withdrawn on 30.08.2023. It is,

however, strange but true that the petitioners

through their counsel Mr. Gouri Mohan Rath, who was

the same counsel for the petitioners in CRLMC No.

4045 of 2022 have furnished the following certificate,

<the aforesaid CRLMC was disposed of as withdrawn

with liberty to refile as per order dated 30.08.2023=

but in fact <no liberty was granted to the petitioners

to refile= in the aforesaid order passed by this Court

on 30.08.2023.

3. The facts are precise that petitioners are the

father-in-law and mother-in-law of the informant-

cum-bride and the petitioners were charge sheeted in

Cuttack Mahila P.S. Case No. 93 of 2018 for offence

U/S 498-A/ 294/ 506/34 of the IPC read with Section

4 of D.P. Act and cognizance was taken by one of the

impugned order passed on 29.09.2019 for the self

same offences. The petitioners, however, file a

discharge petition in the learned trial Court after

disposal of CRLMC No. 4045 of 2022 and the same

was rejected by way of the other impugned order

passed on 23.08.2023. Being aggrieved with the

aforesaid orders, the petitioners have approached this

Court in the CRLMC.

4. In the course of hearing, Mr. G.M. Rath,

learned counsel for the petitioners submits that the

proceeding against the co-accused sister-in-law has

been quashed by this Court in the CRLMC No. 410 of

2020 and the petitioners stand on similar footing, but

the learned trial Court by ignoring the aforesaid facts,

had refused to discharge the petitioners in the

aforesaid criminal case. Mr. Rath further submits that

the criminal proceeding against the petitioners are

nothing but an abuse of process of Court, since no

offence is made out against the petitioners and the

ingredients of offences for which cognizance has been

taken are prominently absent in the allegation

against the petitioners. Mr. Rath accordingly, prays to

quash the impugned orders and criminal proceeding

against the petitioners.

On the other hand, Mr. B. Pujari, learned

counsel appearing for O.P. No.2 submits that

although the petitioners had challenged the impugned

order taking cognizance of offence and criminal

proceeding against them, but the same having been

turned down by this Court in CRLMC No. 4045 of

2022, which was disposed of as withdrawn by the

petitioners, the petitioners cannot question the

criminal proceeding and order taking cognizance of

offences again. It is further submitted by Mr. Pujari

that the petitioners although had challenged the

criminal proceeding and order taking cognizance of

offence in CRLMC No. 4045 of 2022, but they

withdrew it on 30.08.2023, which was three months

after quashing of the criminal proceeding against

their own daughter in CRLMC No. 410 of 2020 on

01.06.2023 and thereby, they having been aware of

such order passed in CRLMC No. 410 of 2020 which

was filed by their daughter for the selfsame relief,

clearly intimating therein to the Court for having no

objection with regard to continuance of the criminal

proceeding against them and others, this Court

quashed the proceeding against the daughter of the

petitioners and the petitioners, thereby, cannot

question the present criminal proceeding against

them. Mr. B. Pujari, accordingly, prays to dismiss the

present CRLMC. Learned counsel for the State,

however, supporting the impugned order of rejection

of discharge petition of the petitioners submits that

there is no error in the impugned order warranting

any interference by this Court in exercise of power

U/S 482 Cr.P.C.

5. After having considered the rival

submissions upon perusal of record, it appears that

the F.I.R. was lodged against the petitioners and

others on 25.09.2018 and after investigation,

accordingly, charge sheet was placed against the

petitioners and others on 05.04.2019, whereupon

cognizance of offence was taken on 29.09.2019, but

in the first round of litigation, the petitioners have

challenged the criminal proceeding and order taking

cognizance of offences in the year 2022 in CRLMC No.

4045 of 2022, which was disposed of as withdrawn,

but no liberty was granted to the petitioners to refile

any application U/S 482 Cr.P.C.

6. The petitioners cannot deny of having

knowledge of disposal of CRLMC No. 410 of 2020,

which was filed by their daughter on 01.06.2023, but

even after knowing the disposal of the aforesaid

proceeding against their daughter, the petitioners in

their wisdom did not continue to challenge the

criminal proceeding against them and the order

taking cognizance of offence by withdrawing their

application U/S 482 of Cr.P.C. in CRLMC No. 4045 of

2022.

7. In quashing the criminal proceeding against

the sister-in-law of the informant in CRLMC No. 410

of 2020, this Court inter alia has observed the

following:-

11. xx "It is, however, made clear that the criminal proceeding against rest of the accused persons having been not challenged and the learned Senior Counsel in the course of argument has clearly submitted to have no objection, if the criminal proceeding continues against the rest of the accused persons, the criminal proceeding may continue against the rest of the accused persons".

8. When can a Magistrate discharge the

accused person(s) in a trial of warrant case has been

provided in Section 239 of the Cr.P.C., which clearly

lays down that if, upon considering the Police report

and the documents sent with it U/S 173 of the Cr.P.C.

and making such examination, if any, of the accused

as the Magistrate thinks necessary and after giving

the prosecution and the accused an opportunity of

being heard, the Magistrate considers the charge

against the accused to be groundless, he shall

discharged the accused and record his reason for so

doing. It therefore, clearly appears that while

discharging the accused, the Magistrate has to record

his reasons, but refusing to discharge, the Magistrate

may not record his reasons, however, he has to

prima facie be satisfied in such situation that the

charge against the accused is not groundless. It is

also equally settled that at the time of consideration

of charge, the Magistrate is not required to hold a

mini trial to assess the probative value of the

materials collected by the prosecution by way of

roving and fishing enquiry. Law is also well settled

that charge can be framed against the accused on

grave suspicion, but not on mere suspicion. It is to be

reminded that this Court has no occasion to go

through the entire materials placed on record in the

aforesaid case since the petitioners have only

produced a photocopy of the F.I.R., charge sheet

together with statement of witnesses, but while

considering the discharge petition, the learned trial

Court must have the privilege of going through the

other materials such as documents and case diary.

Besides, the learned counsel for the petitioners could

not point out any defect in the impugned order

rejecting the discharge petition of the petitioners.

9. In the aforesaid facts and circumstance,

especially when the petitioners have not approached

the Court with clean hands willfully furnishing an

incorrect certificate stating therein to have been

granted the <liberty to refile= which was never

granted to the petitioners and the petitioners having

voluntarily relinquishing to challenge the order of

cognizance of offence and the criminal proceeding by

withdrawing their application U/S 482 Cr.P.C. in

CRLMC No. 4045 of 2022 even after acquiring

knowledge about the criminal proceeding against

their daughter in the present case to have been

quashed in CRLMC No. 410 of 2020 and keeping in

view the reasoning assigned by the learned

S.D.J.M.(S), Cuttack in the impugned order rejecting

the discharge petition of the petitioners and on going

through the materials made available to this Court by

the petitioners, this Court does not find any error

apparent in the impugned order passed by the

learned S.D.J.M.(S), Cuttack refusing to discharge

the petitioners so as to warrant interference in the

present CRLMC.

10. In the result, the CRLMC stands dismissed

on contest, but in the circumstance, there is no order

as to costs.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 19th day of October, 2023/S.Sasmal

Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL

Location: High Court of Orissa Date: 19-Oct-2023 15:51:12