K.S. Vishwanath and ors. Vs. State of Orissa and anr. - Court Judgment

Excerpt:
criminal - dowry demand - proceeding - quashing of - opposite party no. 2 was subjected to misbehavior, torture and negligence by petitioners - petitioners demanded dowry from opposite party no. 2 - - fir lodged by opposite party no. 2 against petitioners - charge sheet submitted in trial court - proceeding started in trial court against petitioners - hence, present application under section 482 of cr.p.c. for quashing of proceeding - held, no material on record that there was any demand of dowry by petitioners - no material on record to show that cause of action ever arose within jurisdiction of trial court - proceeding is quashed - application allowed - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 2 several steps were taken for effective service of notice on her and when that failed even publication of the notice was made in the daily newspaper and in spite of that she did not appear. after leading a happy conjugal life for about a month at bangalore she suffered the misbehaviour, torture and the negligence at the hands of the petitioners at bangalore. her father being not able to meet their demand wanted to make a settlement through discussion and on 31st august, 1992 in the house of the petitioners they were taken badly at the cost of humiliation to her father and herself. she was tortured by her husband by not having sexual cohabitation and having good relationship with the complainant. all efforts by her parents and relations for settlement failed because of stubborn attitude of the petitioners and that petitioner no. 3 is well placed in the service being in an executive post in wipro industry. for example, when it has been asserted by her that the marriage is not an outcome of any love affair nor because of the proposal being initiated from her and her parents side it does not appear to sense why her father reluctantly and under a compelling circumstance conceded to the demand of gold ornaments weighing 20 tolas. mishra further argues that at the stage of taking cognizance for the offences since the court is concerned with existence of a prima facie case a meticulous examination of the aforesaid aspect as urged by the petitioner is impermissible both for the cognizance taking magistrate as well as for the superior courts. 1568.) the apex court have propounded that the order of cognizance can only be interfered with when the facts alleged are found to be inherently improbable or suffer from fundamental legal defects, or due to absence of prima facie case and the like. therefore, it is clearly readable that no part of the cause of action relating to ill-treatment or torture on account of alleged demand of dowry arose at bhubaneswar.p.k. tripathy, j.1. in this application under section 482, cr.p.c. petitioners who are the accused persons in g.r. case no. 3036 of 1992 pending in the court of s.d.j.m., bhubaneswar have prayed to quash the proceeding i.e., the said g.r. case. 2. at the out set it may be mentioned that the informant having been added as opposite party no. 2 several steps were taken for effective service of notice on her and when that failed even publication of the notice was made in the daily newspaper and in spite of that she did not appear. learned standing counsel, however, addressed the court on behalf of the state of orissa and opposed to the aforesaid prayer of the petitioners. 3. according to the allegation, the undisputed relationship between the petitioners and the opposite party is that petitioner no. 3 is the husband of opposite party no. 2 and petitioners 1 and 2 are her parents-in-law. another relevant factor may be noted here that this court wanted to know about the consequence of annexure-2, the f.i.r. lodged by the opposite party no. 2 on 2.9.1992 at bangalore, mr. s. k. padhi, learned counsel for the petitioners, on instructions, states today that though the petitioners were allowed to go on anticipatory bail thereafter there is no further information about the criminal case, if any, registered in the local magistrate's court, but according to the information the matter was before a dowry prevention cell at bangalore. 4. complainant alleged that being allured with her performance in dance and the feature petitioner no. 3 initiated the proposal for marriage at gandhinagar in gujarat. by then he being unknown to her she advised him to make contact with her father at bhubaneswar. as alleged, at the first instance, petitioners 1 and 2. who are permanent resident of bangalore, did not agree for inter-caste marriage, but petitioner no. 3 requested her to wait for a few months and subsequently on the invitation of petitioners 1 and 2 her father went and finalised the marriage proposal which was subsequently performed in a grand manner at bhubaneswar spending about four lakhs rupees. after leading a happy conjugal life for about a month at bangalore she suffered the misbehaviour, torture and the negligence at the hands of the petitioners at bangalore. as alleged, she was also deprived of cohabitation by petitioner no. 3 and perhaps the aforesaid reaction was because she was a professional dancer and moving to different places to stage her performance. till 31st august, 1992 she had come to bhubaneswar and returned to bangalore twice after spending sometime in her parent's house and in the meantime at bangalore she was insisted for bringing a dowry of rs. 70.000/- and torture and ill-treatment continued for non-fulfilment of that dowry demand. her father being not able to meet their demand wanted to make a settlement through discussion and on 31st august, 1992 in the house of the petitioners they were taken badly at the cost of humiliation to her father and herself. alleging the aforesaid facts the f.i.r. (annexure-2) was lodged by opposite party no. 2 before the superintendent of police, dowry cell, office of the d.g. and i.g. of police, bangalore on 2.9.1992 which was received there on 10.9.1992. after returning to bhubaneswar, on 9.9.1992 another f.i.r. was filed by her before the dig of police, h.a. and d.d. orissa, cuttack. in that f.i.r. (annexure-5) in addition to the aforesaid allegations opposite party no. 2 added the allegation that at the time of marriage there was a demand for gold ornaments weighing 50 tolas, but her father conceded to 20 tolas besides the journey expenses of the grooms party and lodging and boarding at bhubaneswar. another allegation was also added in that f.i.r. that in the month of january, 1992 she had come to bhubaneswar with her husband (petitioner no. 3) and stayed here for four days and that during that period they visited the native place of her parents and after being aware of nine acres of cultivable land being possessed by her parents petitioner no. 3 demanded through opposite party no. 2 for one car and one flat at bangalore by selling a portion of the said landed property. she further alleged that her father reluctantly agreed to give a cash of rs. 1,00,000/- (one lakh) and after return to bangalore and during her stay at bangalore till april, 1992 petitioners 1 and 2 insisted upon her to bring the dowry amount for car and flat. on the basis of the said f.i.r. g.r. case no. 3036 of 1992 in the court of s.d.j.m., bhubaneswar was registered out of the capital police station case no. 622 of 1992. after completion of investigation the officer-in-charged of the said police-station submitted the charge-sheet (annexure-6) with the following note under column no. 7. 'during her stay at bangalore, the accused persons in cols. 2 and 4 tortured her in many way, for non-fulfilment of demand of dowry of a car and building at bangalore. she was tortured by her husband by not having sexual cohabitation and having good relationship with the complainant. as the father of the complainant unable to fulfil the demand of one house and car at bangalore, the complainant was tortured by all the accused persons and lastly driven out from the house on 30.8.1992.' petitioners have filed annexure-1 the judgment in m.c.no. 643 of 1992 of the court of principal judge, family court, bangalore which goes to show that the suit for dissolution of marriage by decree of divorce was instituted by petitioner no. 3 and on 28th day of september. 1993 the said suit was decreed ex parte because of non-participation of opposite party no. 2. in paragraph 3 of that judgment learned judge, family court, bangalore has reflected the pleadings of petitioner no. 3 in which it is stated that the marital relationship was smooth till february, 1992, but thereafter opposite party no. 2 behaved irrationally and dealt with petitioners cruelly. a finding is recorded in that judgment that on 31.8.1992 opposite party no. 2 with her father went to the house of the petitioners and came back to bhubaneswar along with all her belongings. 5. annexure-3 is a xerox copy of the application under section 9 of the hindu marriage act (true copy attested). that application was filed by opposite party no. 2 in the court of subordinate judge, bhubaneswar against petitioner no. 3. that application as per the verification portion was signed and filed on 28th day of september, 1992. in that application she has stated that after the marriage they lived at bangalore and when ill-treatment and torture was unbearable in april, 1991 she came back to bhubarveswar. on the assurance of the petitioners on 15th october, 1991 she returned to bangalore and when they continued their past behaviour of ill-treatment, on 20th february, 1992, she again came back to bhubaneswar. all efforts by her parents and relations for settlement failed because of stubborn attitude of the petitioners and that petitioner no. 3 is well placed in the service being in an executive post in wipro industry. drawing attention of this court to the contents of the application, learned counsel for the petitioner states that in annexure-3 there was no allegation of dowry or torture on account of non-fulfilment of payment of dowry. 6. this court has taken the effort to narrate the facts in detail in the aforesaid manner only for the purpose of indicating that the complainant opposite party no. 2 is not consistent in her allegations against the petitioners and the reasons forthcoming in the shape of allegations are not clear and sometimes beyond the comprehension of commonsense. for example, when it has been asserted by her that the marriage is not an outcome of any love affair nor because of the proposal being initiated from her and her parents side it does not appear to sense why her father reluctantly and under a compelling circumstance conceded to the demand of gold ornaments weighing 20 tolas. similarly, when the allegation goes to show that the relationship between the parties became constrained one month after the marriage in the year 1990 and there is no assertion of any reconciliation between the parties or improvement in the relationship the allegations in the f.i.r (ext. 5) that in the month of january, 1992 she made a pleasure trip to bhubaneswar with her husband suffers from improbability. in that manner improbabilities are many which cannot be ignored while considering the question of existence of a prima facie case. 7. be that as it may, the contention of the petitioners is that according to the allegations in the f.i.r. except the alleged incident of january, 1992 where her husband was said to have approached through her for a car and a flat the remaining part of the occurrence, as alleged, took place at bangalore. even the above quoted portion from the charge-sheet shows that after a due investigation, the investigating officer in g.r.case no. 3036 of 1992 also came to the same conclusion. in view of such glaring facts learned counsel for the petitioners strongly urges that s.d.j.m., bhubaneswar lacks territorial jurisdiction to take cognizance of the offences which allegedly occurred at bangalore. 8. learned standing counsel mr. aswini mishra, while not disputing to the position of law and the aforesaid contention of mr. s. k. padhi. learned counsel for the petitioners that for the incident at bangalore, s.d.j.m., bhubaneswar has no jurisdiction to take cognizance and try the case, argues that it reveals from the f.i.r. (annexure-5) that in january, 1992 part of cause of action arose at bhubaneswar when there was demand made by the husband for a car and a flat. according to him the aforesaid allegation is prima facie borne out from the statement of opposite party no.2 and her parents who have been examined by the investigating officer in the said g.r. case. mr. mishra further argues that at the stage of taking cognizance for the offences since the court is concerned with existence of a prima facie case a meticulous examination of the aforesaid aspect as urged by the petitioner is impermissible both for the cognizance taking magistrate as well as for the superior courts. the contention of mr. mishra is appreciable in a general way because that is the ratio propounded by the apex court in series of decisions (see the cases of smt. nagawwa v. veeranna, air 1976 s.c. 1947 and hareram satpathy v. tikaram, air 1968 s.c. 1568.) the apex court have propounded that the order of cognizance can only be interfered with when the facts alleged are found to be inherently improbable or suffer from fundamental legal defects, or due to absence of prima facie case and the like. at the cost of repetiti6n it may be noted here that the allegation of demand of dowry at bhubaneswar was introduced only in the f.i.r. at bhubaneswar about a week after lodging the f.i.r at bangalore. opposite party no. 2 is quite an educated lady leading a public life as a professional dancer and a lecturer for some time and therefore she cannot be equated with an illiterate or rustic woman. the allegations of demand of dowry at bhubaneswar is also conspicuously absent in any other application made by her either before any authority or any court. apart from that, the allegation of demand of dowry is not at all prominently present in that allegation inasmuch as according to her petitioner no. 3 after seeing the landed properties of her father expressed the desire to have, a flat at bangalore and a car and that in that respect the demand was made soon after their returning to bangalore and she suffered the torture thereof at bangalore. therefore, it is clearly readable that no part of the cause of action relating to ill-treatment or torture on account of alleged demand of dowry arose at bhubaneswar. once that be so, the s.d.j.m., bhubaneswar lacks territorials jurisdiction to take cognizance and to try and punish the alleged offenders. the statutory provision in the code of criminal procedure, 1973 is abundantly clear in that respect. 9. the aforesaid discussion leads this court to the conclusion that the allegations of demand of dowry by petitioner no. 3 at bhubaneswar as mentioned in annexure-5 is an after-thought development made by opposite party no. 2 to bring the matter within the jurisdiction of the court at bhubaneswar. even if that aspect shall be overlooked then also the allegation, as levelled, goes to show that save and except an approach to the opposite party no. 2 at bhubaneswar there was no demand of the said properties, in its true sense, at bhubaneswar and the demand of dowry and the ill-treatment as alleged was made at bangalore as per the allegations. as rightly argued by learned counsel for the petitioners and not controverted by learned standing counsel, the attempt of the opposite party no. 2 is to harass the petitioners by dragging them to face a criminal prosecution by running from bangalore to bhubaneswar. mr. padhi, thus argues that it is an exemplary case where to save the proceeding from abuse of process of court, this court should invoke and exercise inherent power. for the reasons already indicated, this court finds legal force and genuineness in the said contention. the above discussions and findings also shows that learned s.d.j.m. bhubaneswar lacks territorial jurisdiction to take cognizance, frame charge and to try the offenders'. hence it is a fit case where the inherent power is invoked and exercised to quash the criminal proceeding vide g.r. case no. 3036 of 1992. 10. accordingly, the g.r. case no. 3036 of 1992 of the court of s.d.j.m., bhubaneswar is quashed by invoking the provision in section 482 of the code of criminal procedure, 1973 and consequentially the application under section 482 of the said code is allowed.