Quashed

Srikanta Swain v. State of Odisha

Orissa HC10 Nov 2021CRLMC/2101/2019

Case brief

AI extract

What is this about?

This bench exercised jurisdiction under Section 482 Cr.P.C. to quash the order of cognizance in a criminal case involving matrimonial allegations. The court held that since the parties obtained a mutual decree of divorce and settled their dispute, continuing the criminal proceedings would serve no purpose, and quashing was necessary to secure the ends of justice.

What did the court decide?

The order of cognizance dated 12.5.2015 passed in G.R. Case No.1155 of 2014 and the subsequent criminal proceedings were quashed.

Srikanta Swain Vs State of Odisha — Matrimonial and Divorce | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CRLMC No.2101 of 2019

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(An application under Section 482 of the Criminal Procedure Code)

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Srikanta Swain and others …. Petitioners

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Mr.P.K. Nayak, Advocate -versus-

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State of Odisha and another …. Opp. Parties Mr. D.R. Parida, Addl. Standing Counsel

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Appeared in this case:

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For Petitioners : M/s.Mr. P.K. Nayak, S. Das, D. Das, S. Sahoo For Opposite Parties : Mr. D.R. Parida, ASC CORAM:

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JUSTICE R.K. PATTANAIK

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DATE OF HEARING : 26.10.2021 DATE OF ORDER : 10.11.2021

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This is an application under Section 482 Cr.P.C. at the behest of the petitioners seeking to quash the order of cognizance of offences directed by the learned J.M.F.C., Jajpur Road in G.R. Case No.1155 of 2014 emerging from Kalinga Nagar P.S. Case No.177 of 2014 on the grounds, inter alia, that in the meantime, the parties have had a settlement, consequent upon which, a mutual divorce is obtained vide C.P. No.244 of 2017 and in that, opposite party No.2 received permanent alimony of Rs.12.00 lac from petitioner No.1 and that such an action is absolutely necessary in the ends of justice.

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From the record, it is revealed that opposite party No.2 had lodged an F.I.R. against the petitioners, for which, Kalinga Nagar P.S. Case No.177 was registered under Section(s) 498-A/307/506/34 IPC and Section 4 of the D.P. Act, where after,

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investigation was completed and the learned court below in G.R. Case No.1155 of 2014 passed the impugned order dated 12.5.2015.

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As per the petitioners, petitioner No.1’s marriage was solemnized with opposite party No.2 in 2013 and thereafter, the parties lived together for a while but as per the allegations, the petitioner demanded Rs.15.00 lac from opposite party No.2, for which, disturbance in their family started. At last opposite party No.2 lodged the F.I.R. On the registration of a case, it led to the filing of the charge sheet (Annexure-2) and passing of the order of cognizance dated 12.5.2015(Annexure-3).

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Heard learned counsel for the petitioners, opposite party No.2 and learned counsel for the State.

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Learned counsel for the petitioners contends that opposite party No.2 and petitioner No.1 on account of a settlement being reached at filed a petition under Section 13(B) of the Hindu Marriage Act, 1955 for a decree of mutual divorce in the court of learned Judge, Family Court, Bhadrak in C.P. No.244 of 2017 as there was a remote chance of reunion. A copy of the petition filed in C.P. No.244 of 2017 is at Annexure-4 for the Court’s perusal. It is also contended that due to such a compromise between the parties, petitioner No.1 paid permanent alimony of Rs.12.00 lac to opposite party No.2. True copy of the money receipt in support of such payment being made to opposite party No.2 is at Annexure-5. The copies of the deposition of opposite party No.2 before the Judge Family Court as well as of petitioner No.1 are at Annexure-7 for the court’s reference. At last, copy of the order dated 16.4.2018 at Annexure-8 and consequential decree at Annexure-9 in C.P. No.244 of 2017 are pressed into service by the learned counsel for the petitioners in order to show that due to a compromise and settlement, a decree of mutual divorce was passed by the Family Court. While making the Court go through

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the materials on record, it is contended that jurisdiction under Section 482 Cr.P.C. needs to be invoked in order to quash the criminal proceeding pending before the learned court below in order to do complete justice between the parties.

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Petitioner No.1 and opposite party No.2 were present in Court on the date of hearing i.e. 26.10.2021. Truly attested copies of the Adhaar Cards were also produced before the Court in support of their personal identity. Both the parties claimed about the settlement and mutual decree of divorce having been obtained in C.P. No.244 of 2017.

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Learned counsel for the petitioners relied upon a decision of this Court in the case of Rajat Kumar Swain and others Vrs. State of Orissa and another reported in (2019) 76 OCR 240. It is contended that due to mutual divorce and decree passed by the learned Judge, Family Court, Bhadrak and having regard to the fact that the parties have settled their dispute and opposite party No.2 received permanent alimony of Rs.12.00 lac, the criminal proceeding pending before the learned court below should be brought to an end and as such, the order of cognizance dated 12.5.2015 passed in G.R. Case No.1155 of 2014 ought to be quashed in order to secure the ends of justice. This Court in decision (supra) referred to a judgment of the Supreme Court in the case of B.S. Joshi and others Vrs. State of Haryana reported in (2003) 25 OCR (SC) 99. Learned counsel for the petitioners also submits that on account of mutual divorce, it is obvious that opposite party No.2 would not agree to continue with the criminal proceeding and unless the order of cognizance dated 12.5.2015 is quashed, no fruitful purpose would be served to allow it to continue and therefore, in view of the ratio laid down in B.S. Joshi case, appropriate order in that respect should be passed in order to do ex debitio justicia.

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In a similarly situated case, wherein, wife had lodged the F.I.R. and a proceeding initiated under Section 498-A and other allied offences against the husband, the dispute between them was resolved and the parties agreed for mutual divorce and ultimately on account of such a settlement, the parties knocked the doors of the High Court for quashing the F.I.R., however, the matter was carried to the Supreme Court and the question was, whether, the High Court does have the power to quash the criminal proceeding exercising jurisdiction under Section 482 Cr.P.C. read with Article(s) 226 and 227 of the Constitution of India, especially, when the offences alleged are non-compoundable in nature. It is in the said context, the Supreme Court in B.S. Joshi case held and observed that extra-ordinary power under Section 482 Cr.P.C. and also Article 226 may be exercised in respect of categories of cases mentioned in Bhajan Lal judgment which is not exhaustive and also observed that Section 320 Cr.P.C. which is in relation to composition of offences with and without the sanction of the Court does not lay any prohibition to exercise such a power under Section 482 Cr.P.C. which of course depends on the facts and circumstances of each particular case.

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An offence may not be compounded exercising jurisdiction under Section 482 Cr.P.C., since because, when such composition of an offence is barred, inherent power cannot be exercised to do something which is prohibited in law. In other words, jurisdiction under Section 482 Cr.P.C. cannot be exercised to compound an offence which is non-compoundable in nature. But then, it cannot stand as a bar to exercise jurisdiction in order to quash the proceeding for the ends of justice. In B.S. Joshi case, the Supreme Court, even though found the offence to be non-compoundable, quashed the criminal proceeding in order to put at rest the dispute between the parties, who have readily agreed to withdraw from their conjugal life.

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Having regard to the settled position of law as enunciated in B.S. Joshi case by the Supreme Court and applying the above ratio to the present case and considering the fact that the parties have already obtained a mutual decree of divorce vide Annexure-8, no worthy purpose would be served to have the criminal proceeding continued before the learned court below vide G.R. Case No.1155 of 2014. The parties rather should be allowed to live and continue a happy and peaceful life post mutual divorce in order to facilitate them settling early in life. So to speak, the Court is of the considered view that it is a fit case where exercising the jurisdiction under Section 482 Cr.P.C., the criminal proceeding pending before the learned court below in G.R. Case No.1155 of 2014 and the order of cognizance dated 12.5.2015 passed therein arising out of Kalinga Nagar P.S. Case No.177 of 2014 should be quashed in order to secure the ends of justice and accordingly, it is ordered.

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In the result, the order of cognizance dated 12.5.2015 passed in G.R. Case No.1155 of 2014 pending before the file of learned J.M.F.C., Jajpur Road and also the proceeding is hereby quashed.

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12. The CRLMC is accordingly disposed of.

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Dated 9^th November, 2021/ KC Bisoi, Secy

Srikanta Swain v. State of Odisha

Case brief

What is this about?

What did the court decide?

Srikanta Swain v. State of Odisha

Case brief

What is this about?

What did the court decide?

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