BANAMALI ROUT Vs. STATE OF ORISSA AND ANR.

JUDGEMENT

(1.) Petitioner is the husband of informant Smt. Sanjulata Rout. On the basis of the F.I.R lodged by Smt. Rout, Basudevpur Police -Station Case No. 9 of 2000 was registered for the offence under Sec. 498 -A, I.P.C. and Sec. 4 of the Dowry Prohibition Act, 1961. The corresponding case in the Court of J.M.F.C. Basudevpur is G.R. Case No. 104 of 2000. Investigation was directed against ma Petitioner as well as his parents and elder brothers. On completion of investigation Final Form was submitted by the Investigating Officer. In the opinion of the Investigating Officer though the informant, her father and brother who were examined in course of investigation, supported the allegation of demand of dowry and the informant stated about the ill -treatment due to non -payment of dowry besides the factum of desertion. yet his investigation revealed that the informant was adamant and misbehaving in her attitude which consequentially led to voluntarily leaving the matrimonial home by her. The Investigating Officer further opined that all the articles presented during the marriage were returned to the informant under a zimanama executed by her father After perusal of that Final Form and the statement on record learned J.M.F.C., Basudevpur on 8.5.2000 passed the impugned order by taking cognizance of the aforesaid offence on the ground that the statements of the Informant and her father and brother disclose existence of a prima facie case for the said offences. Petitioner has thus prayed to quash the order of cognizance by invoking the inherent power on the ground that continuance of the criminal proceeding against him is abuse of process of Court inasmuch as the uncorroborated and inconsistent statement of the aforesaid three witnesses do not make out a prima fact case for the alleged offenses and learned J.M.F.C. should not have refused to accept the Final Form.

(2.) In course of argument, drawing attention of the Court to the statements of the informant, his father and brother, learned Counsel for the Petitioner argued that there is contradiction relating to the manner in which dowry of Rs. 20,000/ - was demanded, the factum relating to deserting the informant by the Petitioner and total absence of any particular relating to any ill -treatment meted to her by any of the accused persons. Accordingly, he prayed to quash the order of cognizance.

(3.) Petitioner also drew attention of the Court to a glaring circumstance that though on 6.5.2000 learned J.M.F.C. Basudevpur passed order to issue notice to the complainant to raise objection (Protest), if any, on the Final Form submitted by the Investigating Officer and notwithstanding that order on 8.5.2000 he suo motu advanced the case record and passed the impugned order. According to the Petitioner that gives the tale tell circumstance when no application was moved by the informant or the prosecution for advancing the record or to pass any order on the Final Form. In view of such contention of the Petitioner on 28.3.2001 this Court not only desired to peruse the record but also learned J.M.F.C. Basudevpur namely Sri B.K. Nayak was directed to submit a report explaining the circumstance which necessitated him to advance the case record and to pass the impugned order. After perusing his report on 7.5.2001 this Court being not satisfied about the circumstance explained in the report of the Magistrate and in course of heading not avoiding possibility of any adverse remark against Sri Nayak this Court thought it proper to afford an opportunity of hearing to Sri Nayak, J.M.F.C. as well. In response to that Mr. Nayak not only appeared personally on a date but also thereafter he engaged a counsel namely Sri Prasanta Kumar Mohanty (2) and associates to argue on his behalf. Learned Counsel appearing for Sri Nayak J.M.F.C advance argument requesting to accept the report submitted by Sri Nayak and in the alternative to excuse him for the lapses, if any, found in dealing with the case and passing the impugned order.