MD KHALILUR RAHAMAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner has moved this Court for quashing of charge-sheet filed against him in G.R. Case No. 78/84 pending in the court of the S.D.J.M., Kendrapara under Sections 506 and 294 IPC in which N.B.W. has been issued against him. Bereft of details, the facts are that the petitioner had married the daughter of opposite party No. 2 on 6-2-78, but however the couple had fallen apart and since 1979 the wife is living in her parental home and had instituted O.S. No. 94/82 in the Court of the Subordinate Judge, Kendrapara for maintenance. There was some allegation of the petitioner having been assaulted and harassed by opposite party No. 2 at Cuttack for which he instituted ICC Case No. 277/83 in the Court of the C.J.M., Cuttack against the opposite party No. 2 and similarly an F.I.R. was also lodged by opposite party No. 2 before the O.I.C., Kendrapara P. S. out of which the G.R. Case No. 78/84 has arisen. During the pendency of the mutual cases between the parties, a compromise was reached amongst them at the instance of some respectable people including the Circle Inspector himself, a copy of which has been filed in this Court showing the parties to have agreed to withdraw or take steps for withdrawal of all cases against each other trial of the petitioner giving Talaq to the daughter of opposite party No. 2 and thereafter both of them becoming free to marry again and also of relinquishment of any claim by opposite party No. 2 against the petitioner. It is the petitioner's case that although in view of such compromise he has already withdrawn the complaint case instituted by him, yet the G.R. Case against him was not dropped and charge-sheet in the case has been filed against him under Sections 506 and 294 IPC for which he has been compelled to move this Court.

(2.) Mr. Y. Das, learned counsel for the opposite party No. 2, while admitting the facts as above has pointed out that since an offence under Section 294 IPC is not compoundable, charge-sheet could not but have been filed against the petitioner though he has very candidly submitted that opposite party No. 2 has no desire to continue the prosecution against the petitioner. It is his further submission that the compromise in respect of an offence under Section 294 IPC was itself hit by Section 23 of the Contract Act and hence the prosecution so far as that Section is concerned cannot be dropped though the prosecution under Section 506 IPC can be held to have been covered by the compromise. On such premises, he submits that even the power under Section 482 Cr. P.C. cannot be invoked to quash the case so far as Section 294 IPC is concerned.

(3.) While it is without doubt that an offence under Section 294 IPC is not compoundable and an agreement reached to that effect is not enforceable in a court of law, I do not agree with the submission of Mr. Das that a prosecution which ex facie appears to this court to be an abuse of the process of the court and would degenerate itself to be a weapon of harassment should it continue, would yet leave this court powerless to stifle it at the commencement. From the facts as narrated, it is apparent that all the disputes between the parties have subsided long back and even the petitioner and his wife are divorced. Even the Circle Inspector of Police was himself a party to the agreement reached between the parties. In view of such circumstances continuance of prosecution under Section 294 IPC would not achieve any beneficial result nor would be in aid of either achieving any social or public justice which is the main aim of a criminal prosecutions have been quashed by invoking the inherent powers of court on account of long delay at the investigation stage, authority, for which is available in AIR 1971 SC 1367, Chajoo v. Radhey, (1979) 47 Cut LT 126 (P. Chiranjivi v. Principal, M.K.C.G. Medical College), (1981) 52 Cut LT 473, Harekrushna Mahatab v. Republic of India and (1985) 1 Orissa LR 558, (Jogendra Mahanta v. State of Orissa). There is inherently no infirmity in invoking the same principle to be applied to the present case and hence since I am convinced that continuance of the prosecution would not achieve any tangible result, the same is hereby quashed.