MUKESH KUMAR WADHWA vs STATE OF ORISSA

S. K. SAHOO, J. Â

The petitioner Mukesh Kumar Wadhwa has filed this application under section 482 of the Criminal Procedure Code challenging the impugned order

dated 09.03.2009 of the learned S.D.J.M., Jharsuguda passed in G.R. No.1939 of 2008 in taking cognizance of offence under sections 506/34 of the

Indian Penal Code and section 6 of the Indecent Representation of Women (Prohibition) Act, 1986 (hereafter ‘1986 Act’) and issuance of

process against him. The said case arises out of Jharsuguda P.S.

Case No.724 of 2008. Mr. Bijaya Kumar Ragada, learned counsel for the petitioner submitted that as per the first information report lodged by the

victim on 31.12.2008 before the Inspector in charge, Jharsuguda police station, though the case was registered under sections 376(2)(g)/506 and

section 6 of the 1986 Act against the petitioner and others but during course of investigation, it was found that there are materials for commission of

offences under sections 376/506 against coaccused Brundaban Naik. So far as the petitioner and other coaccused persons are concerned, they were

charge sheeted under section 506 of the Indian Penal Code and section 6 of the 1986 Act. It is further submitted that the victim was serving in the

shop of the petitioner where the co-accused Brundaban Naik was also serving and when the petitioner came to know about the illicit relationship

between the victim and the co-accused Brundaban Naik, he asked the victim to leave the service for which a false case has been foisted against the

petitioner. It is further contended that the ingredients of offence under section 6 of 1986 Act are not attracted and though it is alleged in the 161

Cr.P.C. statement of the victim that the petitioner and others took her nude photographs in the camera and mobile phone but nothing was seized during

course of investigation to substantiate such aspect and therefore, it is a fit case where this Court should invoke its inherent power under section 482 of

Cr.P.C. to quash the impugned order of cognizance. Learned counsel for the petitioner placed the 161 Cr.P.C. statement of the victim as well as

charge sheet.Mr. Priyabrata Tripathy, learned Addl. Standing Counsel on the other hand supported the impugned order and contended that there is no

such palpable error in the order so as to be interfered with invoking inherent power under section 482 of Cr.P.C. In the first information report lodged

by the victim, it is mentioned that the petitioner and co-accused Brundaban Naik and others committed gang rape on her. However, in the 161 Cr.P.C.

statement, the victim alleged that it is only co-accused Brundaban Naik who committed rape on her.

So far as the petitioner and other co-accused persons are concerned, it is alleged that while the co-accused Brundaban Naik was committing rape on

her, the petitioner and others took nude photographs in the camera and mobile phone and when the victim prevented them, they threatened her with

dire consequence asking her not to inform the matter before anybody. During course of investigation, the Investigating Officer found the materials

under sections 376/506 of the Indian Penal Code against co-accused Brundaban Naik only. So far as the petitioner and other co-accused persons are

concerned, the Investigating Officer found materials under sections 506/34 of the Indian Penal Code and section 6 of 1986 Act and accordingly,

submitted charge sheet. Section 6 of 1986 Act deals with punishment for contravention the provisions under sections 3 or 4 of 1986 Act. Section 3 of

1986 Act prohibits advertisement or publication containing indecent representation of women in any form. Section 4 of 1986 Act prohibits of

publication or sending by post of books, pamphlets etc, selling, hiring, distributing and circulating any material that contains indecent representation of

women in any form.

During course of investigation, neither any mobile phone nor any camera nor any nude photographs of the victim were seized to substantiate the

accusation leveled by the victim against the petitioner. There is no material on record regarding any publication or any exhibition or any advertisement

relating to the alleged nude photographs of the victim. Similarly, there are also no materials which would attract the provision under section 4 of 1986

Act.Law is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the

uncontroverted allegations as made prima facie establish the offence. The Court can take into consideration any special features which appear in a

particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. The Court cannot be utilized for any

oblique purpose and where in the opinion of the Court, chances of ultimate conviction are bleak and no useful purpose is likely to be served by allowing

a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case can quash the proceedings even though it

may be at a preliminary stage.

The Inherent Jurisdiction under section 482 of Cr.P.C. though wide has to be exercised sparingly, carefully and with caution. Since there is no material

that the petitioner has contravened either the provisions of section 3 or section 4 of 1986 Act and nothing incriminating material was found from the

possession of the petitioner and except the statement of the victim, there is no material that any nude photographs were taken either by the petitioner

or by any of the co-accused persons, I am of the view that the ingredients of offence under section 6 of 1986 Act is not attracted. So far as the

offence under section 506 of the Indian Penal Code is concerned, the victim has stated about the threat given by the petitioner and others at the time

of occurrence and the accused persons telling her not to report the matter before police or else she would face dire consequence. Therefore, prima

facie case for taking cognizance of the offence under section 506 of the Indian Penal Code is made out. In view of the forgoing discussions, I am

inclined to quash the impugned order of taking cognizance under section 6 of the 1986 Act so far as the petitioner is concerned. This order will not be

a bar to proceed against the other co-accused persons for the offences as per the impugned order so also against the petitioner for the offence under

section 506 of the Indian Penal Code. Accordingly, the CRLMC application is disposed of. Â