Gayadhar Bala Vs. Smt. Tilottama Bala and Balaram Das - Court Judgment

Excerpt:
criminal - cognizance - quashing of - section 316 of indian penal code, 1860 (ipc) - petitioner prosecuted under section 316 of ipc - petitioner sought recalling of cognizance order before trial court - rejected - hence, present writ application - held, allegation on petitioner that he killed his quick unborn child - concerned witness stated in her initial statement that she was examined by doctor on police requisition but no such assertion has been made by her in complaint or no supportive document was produced or attempted to be produced in court below at any stage till completion of enquiry - trial court also did not call for report from concerned police station if in alleged year, there was any report made by complainant's mother and if so what was result of that report -there is no controversy that offence under section 316 of ipc is exclusively triable by court of session - thus enquiry undertaken by trial court was to be invalid - linking evidence is lacking to find out truth in complainant's allegation that such occurrence took place in alleged year - court quashed order of cognizance - writ allowed - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - he further states that a prima facie case is well made out against the petitioner and opposite party no. at this stage it may be highlighted that the principle of law is well settled that at the stage of taking cognizance a magistrate is not required to meticulously examine the statement on record but to take a broad view of the above materials available in the case record. the principle of law is also well settled that if the ingredients of the offences are made out, then a magistrate should take cognizance of the offence and issue process against the accused unless such allegations are patently absurd or inherently improbable. besides that, the narration of facts does not inspire confidence disclosing the normal human conduct of the victims as well as the alleged culprits relating to the allegation of causing death of quick unborn child. the aforesaid allegation that a father killed his quick unborn child on the ground of non-payment of dowry as back as in the year 1982 which was complained of in the year 1994 is found to be inherently improbable on the part of a mother.p.k. tripathy, j.1. learned counsel for the petitioner files the certified copy of the order sheet dated 13.5.1997 in i.c.c. no. 465 of 1994 of the court of s.d.j.m., bhadrak so also the initial statement of the complainant along with a note of submission.2. petitioner challenges order dated 21.7.1998 of the learned s.d.j.m. when petitioner's application to recall the order of cognizance for the offence under section 316, i.p.c. was refused. heard further argument. this application under section 482., cr. p.c. is disposed of at the stage of hearing on admission after hearing at length learned counsel for both the parties.3. allegation made in the complaint is that in 'ashadha', 1981 she married the petitioner and while she was pregnant, in 1982 'bhadraba' she was forced by the petitioner to abort the child who was nine months old in mother's womb. though she refused, petitioner with co-accused applied bisi kathi (a method to abort or to cause miscarriage) and caused death of the quick unborn child. in that connection she was treated for seven days in government hospital at bhadrak. her mother also lodged report with the local police and she was also examined by the doctor on police requisition. the further allegation is that at the time of marriage in the year 1981 petitioner had demanded a dowry of rs, 1,500/- (rupees one thousand five hundred) which complainant's father had not paid and for that the petitioner applying deceitful means and on the pretext of securing loan got a sale deed executed and registered by her father showing sale of ac. 1.50 decimals of land. in the year 1992 when she could come to know about that fraudulent transaction, she requested the petitioner to return the land and therefore she was ill-treated by assault and denial of food besides threatening of kill -her if dowry amount would not be paid. in that respect when petitioner throttled her neck with a view to kill her, she escaped from his clutches and came away to her parents' house. the village gentlemen considered that incident and the dispute and directed the petitioner to pay to the complainant rs. 30,000/- (rupees thirty thousand) as compensation for the aforesaid land. petitioner went on deferring the payment and he refused on the previous day of filing the complaint, so she was bound to take shelter of the court. the complaint was signed on 27.10.1994.4. learned counsel for the petitioner states that on the basis of an absurd allegation which is infested with unexplained delay, the complainant-opp. party initiated i. c. c. no. 465 of 1994 complaining committing of the offence under sections 498a and 316, i.p.c. by the petitioner. learned counsel for the petitioner after placing the contents in the complaint, initial statement of the complainant and the statements of the witnesses recorded in the enquiry under section 202, cr.p.c. states that the aforesaid allegation is not creditworthy to take any action whatsoever much less an order of cognizance. learned counsel for the opposite party-complainant, on the other hand, argues that the offence under section 316, i.p.c. is punishable with imprisonment for 10 years, therefore, section 468, cr.p.c. does not prohibit taking of cognizance of that offence on the ground of delay. he further states that a prima facie case is well made out against the petitioner and opposite party no. 2 for the offence under section 316, i.p.c. accordingly, he defends the impugned order.5. upon consideration of the aforesaid argument and perusal of the impugned order besides the complaint and the statements of the complainant and the witnesses this court finds that the case at hand is a bright example of superfluous approach to the facts which learned s.d.j.m. has made. to justify the aforesaid comment, this court points out to the glaring circumstances which go to show that on the basis of such statements cognizance of the offence could not have been taken. at this stage it may be highlighted that the principle of law is well settled that at the stage of taking cognizance a magistrate is not required to meticulously examine the statement on record but to take a broad view of the above materials available in the case record. the principle of law is also well settled that if the ingredients of the offences are made out, then a magistrate should take cognizance of the offence and issue process against the accused unless such allegations are patently absurd or inherently improbable. even if all the aforesaid principles are applied in favour of the complainant, yet no action is required to be taken on the basis of the complaint with the aforesaid allegation, because only vogue assertions have been made on the body of the complaint relating to demand of dowry, torture on that account. besides that, the narration of facts does not inspire confidence disclosing the normal human conduct of the victims as well as the alleged culprits relating to the allegation of causing death of quick unborn child. in other words, the aforesaid allegation not only suffers from absurdity but also inherent improbability. the delay of a decade is another reason which should have been properly appreciated while considering the vague allegation of abortion/causing miscarriage.6. in the complaint the opposite party made assertion that she married petitioner no. 1 in the year 1981 'ashadha' and she conceived in the year 1982 without giving any particulars about the month of conception. she also narrated about the ill-treatment to her all throughout till the date of termination of pregnancy by miscarriage in the month of bhadraba' 1982. she did not state anything in the complaint that the said occurrence was witnessed by anybody much less by her parents.(witness nos. 4 and 5) or by any witness including dinabandhu mahalik, indramani nayak and upendranath nayak (witness nos. 1 to 3 respectively). witness no. 3 has stated that witness no. 1 dinabandhu mahalik is the gramarakhi. witness no. 1 narrated about the miscarriage having occurred at 10. p.m. inside the jungle which is one kilometre away from the house of the petitioner. the parents of the complainant (witness nos. 4 and 5) stated that on the date of the occurrence they got information from witness no.l about the said miscarriage at about 8 p.m. they did not state which was the spot of the occurrence, i.e., whether it was the house or the jungle. on the other hand, each of witness nos. 2 and 3 stated that while returning from the market at about mid- night they heard the cry of the complainant and when they entered into the house of accused no. 1 they saw the conduct of miscarriage, i.e., the complainant lying with bleeding and a dead child was lying there inside the house. when witness no. 2 has not stated about presence of anybody else except himself and witness no. 3 besides some other persons at the spot of occurrence at any time during his presence, witness no. 3 stated about presence of witness no. 2 and none else, whereas witness nos. 4 and 5 stated that all of them (witness nos. 1 to 5) were present at the spot and they witnessed that complainant was lying with bleeding along with a dead child and both the accused persons were present there. witness no. 5 also did not state anything in her statement that after the miscarriage complainant was either hospitalised or if the matter was reported to police. the complainant is absolutely silent as to why she did not take recourse to law at that time in the year 1982. she has also not narrated about the manner of ill-treatment from the date of cruelty in 1981 till 1992. no document has been filed or particulars thereof has been given regarding the fraud allegedly practised by the petitioner in obtaining the sale deed. all the aforesaid circumstances are not looked as a matter of searching for contradiction but to find the absurdity and vagueness in the allegations which have been made after a decade from the alleged date of the occurrence.the aforesaid allegation that a father killed his quick unborn child on the ground of non-payment of dowry as back as in the year 1982 which was complained of in the year 1994 is found to be inherently improbable on the part of a mother. though stated in her initial statement that she was examined by the doctor on police requisition but no such assertion has been made by her in the complaint or no supportive document was produced or attempted to be produced in the court at any stage till completion of the enquiry under section 202, cr.p.c. learned s.d.j.m. also did not call for a report from the concerned police station if in 1982 there was any report made by the complainant's mother and if so what was the result of that report.7. there is no controversy that the offence under section 316, i.p.c. is exclusively triable by the court of session. thus the enquiry undertaken by learned s.d.j.m. was to be in confirmity with the proviso to sub-section (2) of section 202, cr.p.c. as noted above, the aforesaid link evidence is lacking to find out truth in complainant's allegation that such an occurrence took place in the year 1982.8. the allegation made by the complainant regarding aborting the child is due to non-payment of rs. 1,500/- (rupees one thousand five hundred) by her father towards dowry. such an allegation does not come within normal human conduct. be that as it may, it could be of some worth if the allegation would have been brought to the notice of the police or court within a reasonable time after the alleged occurrence. in that matter, as it emerges, not only the gramarakhi (witness no. 1) but also two school teachers (witness nos. 2 and 3) kept quiet in spite of seeing such ghastly crime committed by the accused persons. for the sake of discussion, it can be considered that those three witnesses might not have tried to involve themselves in the affairs of the complainant and her husband but what happened to the complainant and her parents to suppress that incident for about a decade there is no answer, much less reasonable answer to that question either in the complaint or in their statements. does that lacuna in the complaint and the conduct of the complainant still credible to inspire confidence those aspects were not at all considered by learned s.d.j.m. while considering the question of issue of process against the accused persons. at the cost of repetition, it be noted that the manner of allegation and the narration of events suffers from improbable human conduct besides absurdity in the said allegation. learned s.d.j.m. did not try to look to such inherent lacuna and passed order most mechanically by taking cognizance of offence and issue of process against the accused persons for no valid reason.9. under the given facts and circumstances, this court is inclined to invoke the inherent power to quash the order of cognizance. accordingly, the order of cognizance in i.c.c. no. 465 of 1994 of the court of s.d.j.m. bhadrak is quashed, and the criminal misc. case is accordingly allowed.