MAMTA TRIPATHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioners Mamta Tripathi and Bharat Bhusan Sethi have filed this application under section 482 of the Code of Criminal Procedure challenging the impugned order dated 11.07.2017 passed by the learned S.D.J.M., Bhubaneswar in C.T. Case No.3728 of 2016 in taking cognizance of offences under sections 341, 342, 323, 294, 504, 506 read with section 34 of the Indian Penal Code and issuance of process against them. The said case arises out of Chandrasekharpur P.S. Case No.349 of 2016.

(2.) On 22.08.2016, one G.S. Rath, President, The Arcon Retreat Owners' Welfare Association (hereafter in short 'Association') lodged the first information report before the Inspector in charge of Chandrasekharpur police station alleging therein that on 21.08.2016 while the General Body Meeting of the Association, which is a registered body was going on in the community hall of the Society under the Presidentship of the informant and in presence of the Secretary, Treasurer and other members and also the staff of the Association, at the final phase, the petitioner no.1 Mamta Tripathi started speaking in a louder tone with aggressiveness accusing one Tusar Behera. When the Secretary of the Association namely Padmanav Sahoo tried to intervene, the petitioner no.2 Bharat Bhusan Sethi, who is the husband of the petitioner no.1 rose from his seat and shouted to Sri Tusar Behera as well as the Secretary Sri Sahoo and threatened them with dire consequence challenging the decisions taken by the previous as well as present Managing Committee. In spite of the request of the informant to both the petitioners to remain seated and to calm down, there was no effect, for which the informant adjourned the meeting and requested the members to disperse. The petitioner no.1 was shouting and creating nuisances in the hall accusing some other members using filthy languages and bolted the door of the hall from inside and stood at the exit gate. The petitioner no.2 also exhibited similar attitude and both the petitioners did not allow anybody to come out of the hall even though the informant requested the petitioners to allow him and others to go out of the hall. The petitioner no.1 obstructed them and told that she would not open the door and allow anybody to go out unless the matter is sorted out. The petitioner no.1 also became more furious and rushed towards the informant and pushed him. It is further alleged that the petitioners also indulged in similar type of activities in the past abusing the previous President and Secretary of the Association and disturbing the meeting. It is stated that both the petitioners prevented the informant, the Secretary and the Treasurer of the Association to discharge their responsibilities by exhibiting uncivilized conduct.

(3.) Mr. Bijoy Anand Mahanti, learned Senior Advocate appearing for the petitioners challenging the impugned order contended that the investigation has been conducted in a perfunctory manner and without examining the petitioners and recording their statements, charge sheet has been submitted. It is further stated that since during course of investigation, the mandate of section 41-A of Cr.P.C. has not been followed and notice of appearance has not been issued to the petitioners, which all the actions taken by the police as well as the Court becomes null and void and liable to be quashed in view of the decision of the Hon'ble Supreme Court in case of Arnesh Kumar Vs. State of Bihar, 2014 58 OCR 999 (SC) which was followed by a single Judge of Patna High Court in case of Gauri Shankar Roy Vs. State of Bihar,2015 22 RCR(Cri) 495 and a Division Bench of Delhi High Court in case of Amandeep Singh Johar Vs. State of N.C.T., 2018 2 Crimes(HC) 601. It is further submitted that the entire dispute between the parties emanates from illegal and arbitrary usurpation of power by a group of people who fraudulently registered the Association under the Societies Registration Act, 1860 as a cultural and charitable society though they are in fact running the same as Apartment Owners' Society, which is mandatorily registerable under the Odisha Apartment Ownership Act, 1982 which was subsequently amended in 2015. It is further submitted that there has been delay in lodging the F.I.R. and the ingredients of the offences under which the charge sheet has been submitted are not attracted and there was civil litigation between the parties for which the first information report was lodged and since the criminal proceeding has been instituted maliciously, therefore, invoking the inherent powers of this Court under section 482 of Cr.P.C., the impugned order and the entire criminal proceeding in C.T. Case No.3728 of 2016 should be quashed.