Quashed

Baisanar Naik v. State of Orissa

Orissa HC4 Jan 2023CRLMC/1886/2016

Case brief

AI extract

What is this about?

The High Court of Orissa allowed an application under Section 482 Cr.P.C. to quash criminal proceedings against petitioners who had eloped with the victim (OP No.3), subsequently married her with family consent, and raised children together. Noting the father's forgiveness and the implausibility of conviction due to the acquittal of a co-accused, the court held that continuing the trial would be a

What did the court decide?

Criminal proceedings as a whole against the petitioners in G.R. Case No. 55 of 2000, including the cognizance order, were quashed.

Baisanar Naik Vs State of Orissa — Quashing and FIR | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK

¶2

CRLMC NO.1886 of 2016

¶3

(In the matter of application under Section 482 of the Criminal Procedure Code, 1973.).

¶4

BAISANAR NAIK AND
ANOTHER PETITIONERS

¶5

-VERSUS-

¶6

STATE OF ORISSA AND OPS.
OTHERS
FOR PETITIONERS : MR. H.N.MOHAPATRA,
ADVOCATE
FOR OPPOSITE : MR. S.R. ROUL, ASC
PARTIES [O.P. NO.1]
MR. B.MOHAPATRA,
ADVOCATE
[O.P. NOS.2 & 3]
CORAM:
JUSTICE G. SATAPATHY
ORDER
04.01.2023
Order No.
08.
1. This is an application U/S.482 of Cr.P.C. by the
petitioners praying therein to set aside the Criminal

¶7

CRLMC No.1886 of 2016 Page 1 of 12

¶8

Proceeding pending against them in G.R. Case No. 55 of 2000 of the Court of learned S,.D.J.M. Athmallik including the order passed therein on 18.09.2000 taking cognizance of offences.

¶9

2. The facts appertaining to the case frescoes an unusual incident where the father who is OP No.2 in this case had lodged a FIR against the petitioners and two others before the O.I.C. Kishorenagar on 01.04.2000 for taking away his daughter in a vehicle on 19.03.2000 at about 6 P.M. towards Cuttack side in his absence and accordingly, Kishorenagar P.S. Case No. 16 of 2000 was registered and the matter was investigated into by the O.I.C. Kishorenagar P.S. who after arresting and forwarding the petitioner No.1, submitted charge sheet on conclusion of investigation against petitioner No.1 for offences U/Ss. 363/366-A/376 of IPC, against petitioner No.2 for offences U/Ss. 363/109 of IPC and against accused Pratap Sahu for offences U/Ss. 363/109 of IPC read with Section 3(i)(xii) SC & ST

¶10

Page 2 of 12

¶11

CRLMC No.1886 of 2016

¶12

(PA) Act by showing petitioner No.2 and accused Pratap Sahu as absconders. On finding prima facie case, the learned S.D.J.M., Athmallik took

¶13

cognizance of offences U/Ss. 363/ 366-A/376/109 of IPC r/w Section 3(i)(xii) SC & ST (PA) Act and accordingly, issued processes in the form of N.B.Ws against the absconding petitioner No. 2 and accused

¶14

Pratap Sahu.

¶15

3. On the above background, the petitioners

¶16

have challenged the criminal proceeding initiated against them for aforesaid offences including the cognizance order passed by learned S.D.J.M.

¶17

Athmallik in this case in the present CRLMC on the grounds that since the petitioner No.1 was in love with the victim-cum-OP No.3 as found by the I.O. while making seizure of love letters between them and after rescue of the victim, they got married to each other with the consent of the family members including that of the informant and now they are residing as husband and wife for long 22 years and

¶18

CRLMC No.1886 of 2016 Page 3 of 12

¶19

being blessed with two daughters and one son, out of whom, they got their eldest daughter married. 4. Mr. H.M.Mohapatra, learned counsel for the

¶20

petitioners and Mr.B.B.Mohapatra, learned counsel for OP Nos. 2 & 3 being present with petitioner No.1 and OP Nos. 2 & 3 jointly submits by enclosing joint affidavit sworn in by petitioner No.1 and OP No.3 and another affidavit sworn in by OP No.2 that the petitioner No.1(accused) and OP No.3 (victim) had already got married to each other around 22 years before and right now, they are residing happily and continuing their marital bliss by having three children, out of whom, the eldest daughter is 20 years old and has already been given in marriage, the second daughter is 14 years and the youngest one is the son aged about 10 years and they are/were accepted by their family members and society including the informant, who has also stated in his affidavit to have no objection for quashing of the criminal proceeding and the informant does not

¶21

CRLMC No.1886 of 2016 Page 4 of 12

¶22

want to proceed in this case. It is further submitted by them that co-accused Pratap Sahu has already been acquitted in a trial and in the aforesaid situation and developments, when there is absolutely no possibility of conviction of the petitioners, the present Criminal Proceeding against them is nothing, but an abuse of process of the Court which should be nipped at the bud by quashing the same to preserve the sanctity of the institution of marriage and prevent the wastage of valuable time of the Court. It is, accordingly, prayed jointly by learned counsel for the petitioners and OP Nos. 2 & 3 to quash the criminal proceeding against the petitioners in the interest of justice.

¶23

Mr . S.R.Roul, learned ASC, however, does not dispute about the subsequent developments of marriage of petitioner No.1 with OP No.3 and the children born to them out of their wedlock, but he opposes the prayer for quashing of the criminal proceeding against the petitioners on the ground of

¶24

CRLMC No.1886 of 2016 Page 5 of 12

¶25

settlement as one of the offences involved in this case is one U/S. 376 of IPC which is not only serious and grave offence but an offence against the society and such case cannot be quashed merely on account of settlement between the parties by getting themselves married. Leaned ASC accordingly, prays to dismiss the present CRLMC.

¶26

5 . At the threshold, before delving the matter on merit, this Court considers it appropriate to reiterate that the petitioner No.1 and OP Nos. 2 & 3 are present in the Court being duly identified by their respective learned counsels along with two affidavits referred to above. On being asked, OP No.2 being the informant and father of OP No.3 expressed remorse for lodging of FIR against the petitioners and he further reiterating the contents of the affidavit stated before this Court that in the meantime, OP No.3 has got married to petitioner No.1 as per their caste and custom and they are accepted by their society and now they are being

¶27

CRLMC No.1886 of 2016 Page 6 of 12

¶28

blessed with two daughters and one son out of their wedlock and he does not want to proceed in the aforesaid criminal case. Similarly, the petitioner No.1 and OP No.3 stated before the Court that they have already married to each other with consent and wish of their parents and are residing happily by enjoying their marital bliss and they are blessed with two daughters and a son, out of whom they have got their eldest daughter aged about 20 years married in the meantime. OP No.3 in particular stated that she was having love relationship with the petitioner No.1 at the time of lodging of FIR by her father and she had eloped with the petitioner No.1 around 23 years back and she had never alleged against the petitioner No.1 for committing any offence against her.

¶29

6 . Above being the situation at present, this

¶30

Court has called for a report from the Court in seisin of the Case i.e. learned S.D.J.M., Athmallik who by

¶31

letter No. 1162 dated 17.11.2022 has reported that

¶32

CRLMC No.1886 of 2016 Page 7 of 12

¶33

cognizance of offences was taken long back on 18.09.2000 and the case against co-accused Pratap Sahu was split up on 31.08.2010 and said coaccused Pratap Sahu was acquitted by learned Addl. Sessions Judge-cum-Special Judge, Angul vide judgment dated 23.03.2016 but the case against the present petitioners is pending before her Court for execution of NBWAs. This Court, however, is not oblivious of the legal position that cases concerning sexual act in terms of Section 375 of IPC cannot and shall not be compromised, but in the facts situation, especially when the FIR was lodged way back on 01.04.2000 and the IO while submitting charge sheet had stated about seizure of love letters of the victim and accused, it clearly appears to the Court that this is a case of elopement where the father being aggrieved with the conduct of her own daughter had proceeded against the boy with whom his daughter had eloped but with passage of time

¶34

and subsequent developments, the said father has

¶35

Page 8 of 12

¶36

CRLMC No.1886 of 2016

¶37

given approval of the marriage between his

¶38

daughter and the accused who by now had already

¶39

got the recognition and acceptance of the society for the matrimonial relationship and they while enjoying their marital bliss are blessed with daughters and son who are right now grown up and one of them has married. Above narratives clearly disclose a situation, where the petitioner No. 1 and OP No.3 had already travelled a long distance overcoming the adverse societal pressure and stigma and at this point of time, it is quite unfair and unreasonable as well as stigmatic for asking the petitioner No.1 to face the tribulation and rigmarole of trial on the accusation of rape of a girl who is his wife now and who denies to have been raped by her husband by admitting to have voluntarily joined with him long back and got married with him in the meantime.

¶40

7 . In the aforesaid developments of situation in which the elopement of a pair of boy and girl of tender age, one of them appears to be before her

¶41

CRLMC No.1886 of 2016 Page 9 of 12

¶42

marriageable age then around 22 years back had already crystallized into a relationship of marriage between them with procreation of children who are right now grown up. What would be the consequence of the criminal trial of the husband on the accusation of rape of his wife, more particularly when the aggrieved father who had lodged the FIR on 01.04.2000, had already given recognition of such marriage of his daughter by accepting the husband of his daughter as son-in-law with harmony and cordial relation, is not oblivious to any one and can be said with certainty that the ultimate chances of conviction of such person would not only be bleak but also is impossible and the criminal proceeding against such person in the above premises is nothing, but an abuse of process of Court. In Satish

¶43

Mehera Vrs. Delhi Administration and another;

¶44

1996 SCC (Cri) 1104 , the Apex Court has held in Paragraph-15 as follows:-

¶45

“But when the judgment is fairly certain that there is no prospect of the

¶46

CRLMC No.1886 of 2016 Page 10 of 12

¶47

case ending in conviction, the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under having pressure of workload.”

¶48

Similarly, in Madhavrao Jiwajiraoscindia and others Vrs. Sambhajirao Chandrojirao Angre and others; (1988) 1 SCC 692 , the Apex Court has been pleased to hold in Paragraph-7 that where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be solved by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case can also quash the proceeding even though it may be at preliminary stage.

¶49

8 . In view of the above analysis of facts and situation on the principles of law laid down by Apex Court in the decisions referred to above together with the grounds in which a criminal proceeding can be quashed U/S. 482 of Cr.P.C., it clearly appears to

¶50

CRLMC No.1886 of 2016 Page 11 of 12

¶51

the Court that the criminal proceeding against the petitioners would nothing but unnecessary harassment to the parties and the trial thereon would be a futile exercise of powers and further continuation of the criminal proceeding against the petitioners would amount to an abuse of process of law and, thus, to secure the ends of justice, such criminal proceeding is required to be quashed and accordingly, the criminal proceeding as a whole against the petitioners in this case is quashed.

¶52

Resultantly, the CRLMC is allowed to the extent indicated above on contest but in the circumstance, there is no order as to costs.

¶53

(G. Satapathy) Judge

¶54

Kishore

¶55

CRLMC No.1886 of 2016 Page 12 of 12

Baisanar Naik v. State of Orissa

Case brief

What is this about?

What did the court decide?

Baisanar Naik v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mamini Subudhi Vs State of Orissa

Manoj Ku.Behera Vs State of Orissa

Alekha Bihari Das Vs State of Orissa

Giridhari@Banamali@Dileswar Sahu Vs State of Orissa

Anil Meher Vs State of Orissa

Ananta Ku.Padhan Vs State of Orissa