KAMADEV NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two petitions have been filed to quash the criminal proceedings in G.R Case No. 223 of 1993 under sections 366 and 376 read with section 34 I.P.C. on the file of the learned S.D.J.M. Banki arising out of Baideswar P.S. Case No. 74 of 1993 dated 11.11.1993. The petitioner Kabita Swain in Criminal Misc. Case No. 177 of 1994 is said to be the victim in the aforesaid case and the petitioners in Criminal Misc. Case No. 158 of 1994 are the accused persons.

(2.) The facts giving rise to the filing of these two petitions may be briefly stated. Kabita Swain aged about 18 years is a resident of village Kalyanpur situated near Bhubaneswar. On 5.11.1993 she went to Kalapathar to the house of her friend to bring back certain articles which she had given but not finding her friend she was to return to her house in a bus. She waited in the bus stand but found no conveyance to her misfortune. While she was there in a thoughtful mood, one Bijaya Kumar Banka, the informant in the above proceeding came to her rescue and left her in the house of one Dilip Kumar Patra of Nuasahi to pass the night. While the girl was there in that house, the petitioners in Criminal Misc. Case No. 158 of 1994 forcibly took her in a trekker and allegedly committed rape on her in succession. When first information report containing these facts was lodged at Baideswar Police Station the aforesaid case was started and investigation proceeded. In course of investigation the alleged victim Kabita Swain was medically examined but no sign of rape was noticed, but in her statement before the police and also in her statement before the learned S.D.J.M., Banki recorded under section 164 of the Code of Criminal Procedure, 1973 (for short, the Code') she corroborated the statement given in the F.I.R. At a later stage, the said Kabita Swain filed a complaint in I.C.C. No. 110 of 1993 in the court of the learned S.D.J.M., Banki alleging that on 15.11.1993 one Duryodhan Sahu with whom she had developed love-intimacy brought her to Baideswar Police Station along with some police officials giving hope to marry her by registration and prevailed upon her to give statements before the police as well as before the Magistrate implicating the petitioners in Criminal Misc. Case No. 158 of 1994 that they kidnapped and committed rape on her. It was further alleged that the said Duryodhan Sahu was a close friend of Bijaya Kumar Banke, the informant in the aforesaid G.R. Case and that being apprehensive of disruption of the marriage proposal she had to give such statements before the police as well as before the Magistrate as tutored by Duryodhan Sahu. It was also alleged that the petitioners in Criminal Misc. Case No. 158 of 1994 neither kidnapped nor committed rape on her and that the said Duryodhan Sahu played treachery on her by the refusing to marry her either by registration or by regular customary form. She has also filed an affidavit sworn in before an Executive Magistrate denying all the allegations contained in the F.I.R leading to the initiation of the aforesaid G.R. Case and ultimately filed the petition to quash the criminal proceeding in the aforesaid G.R. Case. The petitioners in Criminal Misc. Case No. 158 of 1994 who are accused persons in the aforesaid G.R. Case have also filed the petition to quash the said criminal proceeding mainly on the allegation that the allegations in the F.I.R. in the G.R. Case were all diametrically opposite to the allegations contained not only in the complaint petition but also in the affidavit sworn in by the alleged victim girl before the Executive Magistrate.

(3.) With the above facts, it is to be considered whether the criminal proceeding in the aforesaid G.R. Case is liable to be quashed by exercising powers vested in this Court under section 482 of the Code. Section 482 of the Code is a statutory recognition of the inherent powers of the High Court. Such inherent powers can be exercised when it is necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The only restriction in exercise of such power is not to override any express provision in the Code or express bar of law envisaged in any other provisions of the Code. The power to be exercised under that section being in its nature extraordinary ought to be used sparingly with a view to be real and substantial justice for the administration of which alone the courts exist. In State of Karnataka v. L. Muniswamy & Ors.,