Bijay Kumar Biswal vs State Of Orissa & Another .... Opp. ...
2025 Latest Caselaw 930 Ori

Orissa High Court

Bijay Kumar Biswal vs State Of Orissa & Another .... Opp. ... on 7 July, 2025

Author: Chittaranjan Dash

Bench: Chittaranjan Dash

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                    CRLMC No. 3892 of 2016

  Bijay Kumar Biswal             ....                       Petitioner
                                         Mr.
                                          r. D.R. Bhokta, Advocate
                          -versus-

  State of Orissa & another      ....                     Opp. Parties
                                             Mrs. S. Mohanty, ASC
                                Mr. L. Pani, Advocate for O.P. No.2

                  CORAM:
 THE HON'BLE
         BLE MR. JUSTICE CHITTARANJAN DASH
                   Date of Judgment:07.07.2025

Chittaranjan Dash, J.

1. By means of this application, the Petitioner seeks the indulgence of this Court praying to quash the order of cognizance dated 09.06.2016 passed by the learned S.D.J.M., Koraput in 1CC Case No.02 of 2016, 2016 wherein, the Petitioner has been implicated in the offence under Sections 143/448/149 of IPC.

2. The background facts of the case are that on 14.09.2011, the complainant, Bijaya Laxmi Sahu, lodged a report at Sunabeda Police Station alleging that two years earlier, in the absence of her husband Baikunthanath Sahu, several individuals including Dandapani ni Swain and the present Petitioner,, Bijay Kumar Biswal, unlawfully entered their house at night by breaking the lock. It was alleged that Swain, accompanied by his son-in-law son law (the Petitioner) and others, continued to occupy the house despite the complainant's complaina objections. The genesis of the dispute, however, lies in a monetary transaction between Baikunthanath Sahu and Dandapani Swain.

Sahu had defaulted on instalments for a Housing Board quarter (MIG-1)

1) allotted to him, resulting in its cancellation in 2002.

Nonetheless, in 2008, to meet his brother's medical expenses, Baikunthanath accepted Rs. 92,000/-

92,000/ from Swain against a total consideration of Rs. 1,40,000/-

1,40,000/ and handed over possession of the quarter without disclosing the cancellation status. The agreement agreem was notarized, and the Petitioner,, as a witness and relative, signed the receipt. Swain later occupied the house, spent money on its repair through the Petitioner,, and conducted a housewarming ceremony. Years later, when property values rose, Baikunthanath Baikuntha allegedly demanded more money, which Swain refused, prompting the Sahu family to initiate police complaints, which were treated as civil disputes. The matter resurfaced through a private complaint leading to the cognizance order. This petition has therefore the been preferred to quash the said order, asserting that the dispute is essentially civil in nature and that the criminal proceedings amount to an abuse of the process of law.

3. Mr. Bhokta, learned counsel for the Petitioner submitted that the entire case stems from a property dispute between private parties, and the allegations made in the complaint, even if accepted in their entirety, do not disclose the commission of any criminal crimin offence by the Petitioner. It was contended that the Petitioner, being the son-in-law law of one of the accused and a local contractor, was merely a witness to a notarised transaction between the complainant's husband and Dandapani Swain and had no role in any alleged trespass or intimidation. Mr. Bhokta asserts that the dispute revolves around possession and consideration relating to a Housing Board quarter, which had already been cancelled due to

default in payment. Counsel further pointed out that the police, pol after thorough investigation, submitted a Final Report categorising the matter as a "Mistake of Law" due to lack of material and witness support. He submits that despite this, the complainant filed a private complaint after an unexplained delay of four four years, which was entertained without due regard to the earlier findings. Mr. Bhokta finally submits that the complaint is nothing but a civil grievance being given a criminal colour, and the continuation of proceedings against the Petitioner amounts to abuse abuse of the process of law, warranting interference under Section 482 Cr.P.C.

4. Ms. Mohanty, learned counsel for the State opposed the petition and submitted that the allegations made in the complaint disclose the commission of cognizable offences, including criminal trespass and intimidation, and that the learned Magistrate was justified in taking cognizance based on the materials available before him. She argued that the complainant has consistently alleged unlawful entry into her premises and forcible occupation occu by the accused persons, including the present Petitioner, and such allegations are sufficient at the stage of cognizance to proceed with trial. Ms. Mohanty further contended that the delay in filing the complaint may be attributed to the complainant's complainant's unsuccessful attempts to seek police intervention, and such delay alone should not defeat the case at the threshold. She also submitted that the veracity of the allegations, the role of the Petitioner, and the nature of the dispute are all matters for trial, trial, and the petition under Section 482 Cr.P.C. seeking quashment at a premature stage ought not to be entertained.

5. Upon perusal of the case record, it is evident that the entire case arises out of a dispute surrounding Quarter No. MIG-1 MIG of the Housing Board ard Colony, Sunabeda, which was initially allotted to one Baikunthanath Sahu, husband of the complainant, by the Orissa State Housing Board in 1998. Despite paying the initial down payment, Baikunthanath failed to pay further instalments, leading to cancellation lation of the allotment in 2002. Notwithstanding this, he continued in possession of the house without clearing dues. Subsequently, in September 2008, to meet medical expenses for his ailing younger brother, Baikunthanath received ₹92,000/-

₹92,000/ from one Dandapani ani Swain as part of a ₹1,40,000/- consideration, relinquishing possession and handing over keys of the house to Swain. A notarised acknowledgement was executed, signed by both parties and witnessed by others, including the present Petitioner, who is Swain's 's son-in-law.

son law. The material on record reveals that Swain, facing retirement and needing accommodation, shifted into the quarter in September 2009. Prior to this, a group comprising Swain, the Petitioner, Petitioner, and others had visited the house to assess repair costs.

sts. When Swain misplaced the key and the complainant refused to provide a duplicate, the lock was broken to gain entry. Swain then occupied the house, undertook repairs, reconnected utilities, and organized a "Griha Pratistha" ceremony attended by local residents esidents and even, as claimed, members of the complainant's family. It also emerges that the Petitioner,, being a local contractor, had invested around ₹60,000/- to repair the complainant's current residence in MIG-2 MIG 2 as part of an oral understanding for the remaining consideration.

6. It is also relevant to note that Baikunthanath remained silent for nearly two years after Swain's occupation. Only after a rise in the property's value did he demand an additional ₹1 lakh from Swain, which was declined. This triggered triggered a series of police complaints by Baikunthanath and the complainant, culminating in a report dated 14.09.2011 that led to the present proceeding. Upon investigation, the police concluded the matter was civil in nature and filed a Final Report dated 31.08.2012 31.08.2012 categorizing the case as a "Mistake of Law" under Sections 143/448/149 IPC, owing to absence of material evidence or corroborating witnesses. Despite the Final Report, the complainant filed a complaint in 2016, four years later, alleging identical facts, without explaining the delay. Based on this, the learned S.D.J.M., Koraput, took cognizance on 09.06.2016 for offences under Sections 294, 447, 448, 506, and 34 IPC. This order forms the subject of challenge in the present petition.

7. The complaint, when when viewed in its entirety along with the police report and supporting materials, reflects that the crux of the dispute is the possession and transfer of a residential quarter, involving monetary transactions, informal agreements, and failure to fulfil Housing sing Board obligations. The incident regarding breaking the lock and entry into the house appears to be part of the transactional chain between Baikunthanath and Dandapani Swain, where the Petitioner was only a witness and an assisting relative. There is nothing othing to indicate any criminal intent or independent overt act attributable to the Petitioner.. In fact, his role, as per the record, appears limited to assisting in repairs and witnessing a monetary transaction between close relatives.

8. The Supreme Court has has consistently held that the power under Section 482 Cr.P.C. can and should be exercised to quash proceedings where the allegations are manifestly absurd, civil in nature, or intended to harass. The Hon'ble Apex Court in its decision in the matter of Statee of Haryana vs. Bhajanlal reported in 335, has laid down the following guidelines for 1992 Supp(1) SCC 335, exercise of power under Section 482:-

482:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable non cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the

concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

And further held in Naresh Kumar & Anr. Vs.. The State of Karnataka & Anr. reported in 2024 LiveLaw (SC) 228 -

"6.

6. In the case of Paramjeet Batra v. State of Uttarakhand (2013) 11 SCC 673, this Court recognized that although the inherent powers of a High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly, yet the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature. This is what was held:

"12. While exercising its jurisdiction under Section 482 of the Code Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings proceedin to prevent abuse of process of the Court."

(emphasis supplied) Relying upon the decision in Paramjeet Batra (supra), this Court in Randheer Singh v. State of U.P. (2021) 14 SCC 626, observed that criminal proceedings cannot be taken recourse to as a weapon weapon of harassment. In Usha Chakraborty & Anr. v. State of West Bengal & Anr. 2023 SCC OnLine SC 90, relying upon Paramjeet Batra (supra) it was again held that where a dispute which is

essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure."

Procedure.

9. In the instant case, the allegations of criminal trespass and intimidation are not only stale being raised years after the alleged incident but are also unsupported by any material that could establish mens rea or any criminal intent on the part of the Petitioner.. The complainant has offered no explanation for the inordinate delay of four years in filing the complaint after the police had already submitted a Final Report categorising categori ing the matter as a mistake of law. Despite this, the learned Magistrate proceeded to take cognizance without examining the earlier police findings or considering the civil complexion of the dispute, which appears app to stem from an aborted housing transaction and post-facto post facto grievances.

A perusal of the Final Form further reveals that the core issue relates to disputes over ownership and occupation of a quarter allotted by the Housing Board, Board specifically involvingg non-payment non of instalments, cancellation of allotment, and informal agreements concerning possession. The allegations that the accused, including the Petitioner,, forcibly entered the premises do not disclose any criminal motive but rather relate to a contested contested claim of possession following a monetary transaction. In this background, the Court below ought to have carefully scrutinised scrutini ed the factual matrix before entertaining a criminal complaint in what is, at its core, a civil dispute.

10. In view of the foregoing foregoing discussion, this Court finds it pertinent to reiterate that the extraordinary power under Section 482 Cr.P.C. is to be exercised with caution and circumspection.

However, such power must be invoked when it becomes necessary to prevent manifest abuse of the process of the Court or to secure the ends of justice, especially where the allegations are demonstrably absurd, inherently improbable, or intended to harass. In the case at hand, the material placed on record and the sequence of events clearly reveal that the dispute arises out of a failed transaction involving a Housing Board property and is predominantly civil in nature. The complainant, after a prolonged silence and following adverse police findings, sought to revive the matter by clothing it with criminal allegations, without any foundational basis or specific material implicating the present Petitioner.

11. As a result, this Court is of the considered opinion that the continuation of the criminal proceeding against the Petitioner would amount to an abuse abuse of the process of law. No prima facie case is made out so far as the Petitioner is concerned, and his prosecution in this context would be unwarranted.

12. Accordingly, the Criminal Miscellaneous Case is allowed. The order of cognizance dated 09.06.2016 passed by the learned S.D.J.M., Koraput in 1CC Case No.02 of 2016, so far as it relates to the present Petitioner, is hereby quashed. Needless to say, this Court has not expressed any opinion on the merits of the case and all other grounds taken by the defence defence in the annexures are left open.

(Chittaranjan Dash)

Bijay

Location: HIGH COURT OF ORISSA Date: 08-Jul-2025 18:06:49