DAMODAR MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two applications are inter-linked and are disposed of by this common order.

(2.) Criminal Revision No. 103 of 1997 has been filed by Damodar Mishra questioning correctness of order dated 13-6-1997 passed by the learned Sub-Divisional Judicial Magistrate, Puri (in short, 'SDJM') in C.R. case No. 97 of 1996 corresponding to Puri Town P.B. case No. 26 of 1996 recalling the order relating to cognizance of offences punishable under Ss. 406/506 of the Indian Penal Code, 1860 (in short, 'IPC') allegedly committed by opposite party Nos. 2 to 5, and coming to the conclusion that in respect of Dhadi Rana (opposite party No. 6) there was no material to proceed for the alleged commission of offence punishable under S. 498-A/506, IPC.In Criminal Misc. Case No. 2281 of 1997 the accused persons have questioned correctness of said order. After cognizance, process has been issued to accused persons for alleged commission of offences punishable under Ss. 498-A/420 read with S. 34, IPC, and under S. 4 of the Dowry Prohibition Act, 1961 (in short, the 'Dowry Act'). Prayer is made to quash the prosecution and cognizance dated 13-6-1997.

(3.) The background in which the impugned order came to be passed is as follows :Damodar's daughter Sunanda was married to Umakanta, the third son of accused Trilochan and Shantilata on 23-1-1995. Accused Prasanna Kumar Mishra was the mediator of the marriage, Certain articles were given as dowry on the demand made by the groom and his relatives. It was not known to the bride's family that Umakanta was a diseased person suffering from Portal hypertension and damaged lever and kidney and his spleen had been removed by operation in All India Institute of Medical Sciences, New Delhi on 12-1-1988. After 20 days of marriage, Umakanta became unconscious and in coma stage was admitted in the S.C.B. Medical College Hospital, Cuttack on 23-2-1995. Thereafter he continued to be treated in the said hospital for certain periods and ultimately breathed his last on 3-11-1995 due to hepatic coma. Sunanda was ill-treated by the accused persons, was subjected to various types of physical and mental cruelties and demand for dowry continued. With the dowry articles received from the bride's family, accused persons got Dipti, daughter of accused Trilochan, married on 20-4-1995. By playing a dirty trick and in a deceitful manner accused persons managed to get Umakanta married to Sunanda. After death of Umakanta, tortures were continued being afraid that Sunanda may take recourse to Court of law, object was to drive sense of fear to her heart. She was forced to sign on five blank papers. Lot of valuables were taken by force from her. There was even an attempt to burn her by pouring kerosene and leakage of gas. However, she was rescued by her father on 6-1-1995. The accused persons did not return the articles they had taken and promised to give them back on 26-11-1995 at Bhubaneswar. But they did not keep the promise. On 10-12-1995, accused Laxmi-kanta was found out at Cuttack, and he promised to return all the articles to Sunanda on 24-12-1995. When she was accompanied by her father, elder brother and others went to his place of stay at Cuttack on 24-12-1996, there was physical assault on her for which written report was lodged at Cantonment Police Station and Station Diary Entry No. 864 dated 24-12-1995 was recorded. Finding no other alternative, an FIR was lodged in Puri Town P.S. on 17-1-1996 by Damodar Misra which was registered in respect of offences alleged to have been convicted under Ss. 498-A/420 read with S. 34, IPC and S. 4 of the Dowry Act. It was registered as P.S. case No. 26 of 1996 corresponding to G.R. Case No. 97 of 1996. In the said case charge-sheet was submitted by the Human Rights Protection Cell, Orissa. When there was delay in making the search and seizure of the concerned articles, the Human Rights Protection Cell, Orissa, transferred the aforesaid case from Puri Town P.S. for its own investigation and charge-sheet was submitted as referred to above. Learned SDJM, Puri took cognizance of the offences on 27-11-1996. four accused persons, namely, Trilochan, Shantilata, Laxmikanta and Rama-kanta did not appear in the Court of S.D.J.M., Puri, but filed Crl. Misc. Case No. 56 of 1996 purportedly under S. 482 of the Code of Criminal Procedure, 1973 (in short, the 'Code') challenging the cognizance taken. In the said case, the informant Damodar was not impleaded as a party. In the case this Court directed the learned SDJM, Puri to consider the prayer of the accused persons keeping in view the guidelines indicated by the Apex Court in K. M. Mathew v. State of Kerala, (1992) 3 OCR 66 : (1992 Cri LJ 3779). An application was filed by the accused persons for recalling the order of cognizance in the Court of S.D.J.M. and it was heard at length on several dates. On 13-6-1997 order was passed in which the earlier order relating to offences punishable under Ss. 406/506, IPC was varied in respect of all the accused persons, and in respect of accused Dhadi Rana, who was charged with the offences punishable under S. 498A and 506, IPC.