NISAKAR SWAIN & ORS Vs. SUKANTI SWAIN

JUDGEMENT

(1.) The petitioners have challenged the order dated 11.06.2004 passed by the learned S.D.J.M., Jajpur in I.C.C. Case No. 138 of 2004 in taking cognizance of offences punishable under sections 352/427/506/34 of the Indian Penal Code.

(2.) The prosecution case as per the complaint petition filed by the opp. party Smt. Sukanti Swain, in short, is that the occurrence in question took place on 08.05.2004 and there was previous dispute between the parties and on the date of occurrence while the opp. party was proceeding to fetch water carrying an earthen pot in front of her house, at that point of time the petitioner no.2 Pramila Swain called petitioner no.1 Nisakar Swain and petitioner no.3 Saroj Kumar Swain. The petitioner no.3 caught hold of the tuft of the hair of the opp. party and petitioner no.1 Nisakar Swain threatened the opp. party with dire consequences holding a Katuri (bill hook, chopper) and also abused her. As the petitioner no.3 pulled the hair of the opp. party, she became semi-naked. The petitioner no.2 gave a kick blow to the earthen pot of the opp. party as a result of which it broke down for which the opp. Party stated to have sustained a loss of Rs.10/- (ten only).

(3.) Considering the submissions raised by the respective parties and on perusal of the materials available on record, particularly the averments made in the complaint petition, it appears that there is no specific grave and serious accusation against the petitioner no.2 Pramila Swain. The main allegation seems to be against the petitioners nos. 1 and 3 and therefore, it would not be expedient and in the interest of justice to permit a prosecution to continue against the petitioner no.2. It is the requirement of law that the Magistrate should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process. It seems that the learned Magistrate has failed in its duty while issuing process against the petitioner no.2 and therefore, unless the proceeding against her is quashed, she has to undergo further harassment of litigation for a number of years in future which she has already undergone. I am of the view that the criminal prosecution against the petitioner no.2 is nothing but malafide, vexatious and therefore, there is every justification for interference by this Court. Since the ingredients of the offences under sections 352/427/506 are not attracted against the petitioner no.2 Pramila Swain, invoking the inherent power under section 482 Cr.P.C., I am inclined to quash the proceeding against her.