DHARMENDRA SINGH Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this petition under S. 402, Cr. P.C. the petitioners have prayed to quash the order dated 29-3-1997 passed by the learned S.D.J.M., Talcher in G.R. Case No. 361of 1993 taking cognizance of the offences under S. 498-A, I.P.C. and under S. 4 of the D.P. Act.

(2.) The facts of the case are as follows :- The opposite party No. 2 namely, Smt. Jashomati Kour was given in marriage to one Raju alias Rajendra alias Harbindar Singh in the year 1991 according to Sikh customs and rites and after their marriage they lived happily for about a year. It is alleged that thereafter the parents and brother of Harbindar demanded a cash of Rs. 40,000/- and a Hero Honda motor cycle as dowry. When she expressed the inability of her father to meet the demand of the family members of her husband, they ill-treated her and drove her out from their house on 30-4-1992 while she was carrying two months. Having been driven away from her matrimonial home she took shelter in her father's house. While she was there a female child was born to her. But no one of the family of her husband took any care of her or her child and they did not even come to see the child. The father of the opposite party No. 2 conveyed a Panchayat and on the intervention of the gentry Harbinder took her back to his house. But again after a few days they renewed the demand and for non-fulfilment of the same, her husband along with his parents and another brother assaulted her and did not give her food. On 20-7-1993 she was assaulted and was threatened to be killed by pouring petrol on her. On 21-7-1995 morning when the opposite party No. 2 wanted to go back to her father's house, her husband along with his family members forcibly removed the ornaments from her body whereafter she came and took shelter in her father's house and lodged the F.I.R. in the Colliery Police Station which was registered as P.S. Case No. 120 of 1993 for the offences under S. 498-A, I.P.C. and under S. 4 of the O.P. Act. The police after investigation filed final report stating the case to be a mistake of fact. On receiving the notice of the report, the opposite party No. 2 filed a protest petition before the learned S.D.J.M. on receiving which the learned S.D.J.M. took cognizance of the offences, enquired into the case and examined the witnesses as envisaged under S. 202, Cr. P.C. While the case was pending at the stage of enquiry under S. 202, Cr. P.C., the complainant on 17-3-1997 filed a petition to condone the delay on the ground that she being in distress and helpless condition in her father's house could not examine all her witnesses within the stipulated period. The learned Magistrate considering the materials on record, found that there are materials to make out a case under S. 498-A and under S. 4 of the D.P. Act and took cognizance of the aforesaid offence against the accused persons and directed for issuance of process against them including the two petitioners. He also disposed of the petition filed on 17-3-1997, condoning delay. Being aggrieved by the aforesaid order, the petitioners who are two of the accused persons in the aforesaid case before the learned S.D.J.M., have filed this petition.

(3.) According to the petitioners since it is alleged that the offences were committed on 30-4-1992 and lastly on 20-7-1993 taking of cognizance of the same after expiry of three years from the date on which the alleged offences are said to have been committed is barred by limitation as prescribed under S. 468(2)(c), Cr. P.C. It is also contended that the order passed by the learned S.D.J.M., condoning the delay without hearing the petitioners is illegal. It is further contended that since the learned Magistrate has failed to consider the question of limitation before taking cognizance of the offences, the order passed by him condoning the delay subsequent to taking of cognizance is illegal. The learned counsel of the petitioners therefore contended that the impugned order is without jurisdiction and is liable to be quashed. The learned counsel of the opposite party No. 2, on the other hand, argued in support of the impugned order. There is no dispute that on the information lodged by the present opposite party No. 2, Colliery P.S. Case No. 120 of 1993 was registered and the police after investigation filed the final report. Having come to know about the filing of final report, opposite party No. 2 filed a protest petition on 9-5-1994 on the same allegations. It is an accepted position that such a protest petition is in the nature of a complaint and should be dealt with in accordance with the provisions of Chapter XV of the Criminal Procedure Code. On receiving such a petition the Magistrate is to examine the complainant on solemn affirmation and thereafter either process should be issued under S. 204, Cr. P.C. or for adequate reasons an inquiry may be ordered under S. 202, Cr. P.C. and if sufficient ground is not made out, the complaint may be dismissedunder S. 203, Cr. P.C. In the instant case, on receiving the complaint the learned Magistrate without recording the statement of the complainant as required under S. 200, Cr. P.C. posted the case for inquiry under S. 202, Cr. P.C. Therefore, a question arises whether the omission to examine the complainant on oath is an illegality or a mere irregularity. Such a question came up for consideration before this court in Mahabir Prasad Agarwala v. State, reported in (1957) 23 Cut LT 395 : (1958 Cri LJ 63), and this court held that omission to examine the complainant on solemn affirmation on a protest petition may prejudice the complainant but it cannot prejudice the accused. It is merely on irregularity. Here in the instant case the complainant and her witnesses have been examined on solemn affirmation in course of inquiry under S. 202, Cr. P.C. and their statements are available to the petitioners for the purpose of cross-examining the witnesses. The petitioners, thereafter, cannot urge that the omission has in any way prejudiced them. So non-examination of the complainant on oath as required under S. 200, Cr. P.C. being an irregularity cannot vitiate the proceeding.