{"id":127877,"date":"1994-11-17T00:00:00","date_gmt":"1994-11-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balabhadra-prasad-das-and-anr-vs-state-of-orissa-on-17-november-1994"},"modified":"2018-02-21T20:00:23","modified_gmt":"2018-02-21T14:30:23","slug":"balabhadra-prasad-das-and-anr-vs-state-of-orissa-on-17-november-1994","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balabhadra-prasad-das-and-anr-vs-state-of-orissa-on-17-november-1994","title":{"rendered":"Balabhadra Prasad Das And Anr. vs State Of Orissa on 17 November, 1994"},"content":{"rendered":"
Orissa High Court<\/div>\n
Balabhadra Prasad Das And Anr. vs State Of Orissa on 17 November, 1994<\/div>\n
Equivalent citations: 1995 CriLJ 1284<\/div>\n
Author: A Pasayat<\/div>\n
Bench: A Pasayat<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 A. Pasayat, J.  <\/p>\n
 1. In this application under Section 482 of the Code of Criminal Procedure, 1973 (in short, the ‘Code’) a prayer has been made by Balabhadra Prasad Das and Smita Das, petitioner Nos. 1 and 2 respectively, for quashing the proceeding in G. R. Case No. 676 of 1993 pending in the Court of Sub-divisional Judicial Magistrate, Balasore.\n<\/p>\n
 2. Background facts as portrayed by them are as follows:\n<\/p>\n
  First information report was lodged by Shri Manmohan Panda (opposite party No. 3 in this application) alleging that while petitioner No. 2 had gone to appear at the Final M. A. Examination in K. K. S. Women’s College, Balasore, she was kidnapped by force and enticed by deceitful means by petitioner No. 1 and was forcibly taken away with ulterior intention and was secretly and wrongfully confined. It was further alleged that the kidnapping and wrongful confinement had taken place under the abetment of petitioner No. 1’s father Kunja Behari Das and younger brother her and husband. The 1st respondent took the custody of the petitioner’s mother and retained her at the family house against the said mother’s will. She never allowed any of the relations including themselves to see their mother. Respondents 2 and 3 are the employees of the 1st respondent and they watch their mother from being met by any of the relatives. Even death news could not be conveyed to their mother. Their mother-in-law Kulanthaisamy Gounder died on 26-10-1993 and the petitioners went to their mother’s; place of confinement for reporting the said death. But, they saw all the doors closed and after much shouting, respondents 2 and 3 came shouting back to them to go out from the place. After sufficient waiting they left the places. It happened likewise also when Ramayee Ammal, the brother’s wife of the petitioner’s mother and Doraisamy, son of the younge brother of petitioner’s mother, died and the said news was sought to be conveyed. The 1st petitioner gave complaint to the police. However, the police has not taken any action. The 2nd petitioner, along with Meenakshi, the sister of the petitioner’s father filed a habeas corpus petition in W.P. No. 15425 of 1991. There, the petitioner’s mother was never produced before this court and in a stage managed manner she was produced before the Magistrate, before whom, she said that she was staying along. This cannot be correct since the respondents have confined her. Now two years have passed since then. The 1st respondent is no longer a resident of Erode. She is working about 140 Kilometres away from Erode for the past l’\/2 years. She never came over to Erode also. Hence the relationship and affection between the mother and sons, cannot be disturbed by the respondents in this fashion.\n<\/p>\n
 3. As against the above said allegations, the 1st respondent filed a counter affidavit dated 13-12-1993 on behalf of herself and respondents 2 and 3 and subsequently she also filed additional counter affidavit. In the original counter affidavit she has stated as follows : Her husband was done to death and the 1st petitioner is one of the accused in the criminal case. It is denied that there was difference of opinion between herself and her husband. Sellammal is now residing at the house bearing Door No. 406 and 407, Perundurai Road and she is living there on her own free will. The allegation that she never allowed the relatives of the petitioners to meet her mother-in-law, is not true. Only on week ends, she is visiting her mother-in-law, who is living at Erode. She does not know anything about the petitioners coming to the place of her mother-in-law’s residence. After seeing the averments in the abovesaid affidavits, she enquired respondents 2 and 3, whether such incident ever happened and they assured her that it was totally false. She does not know anything about the complaint given by the petitioners to the police. It is a false complaint. Her mother-in-law is staying at Erode and she is working 140 kilo metres away from there. She never interfered with the affection and relationship of the petitioners with their mother. The 2nd petitioner filed W.P. No. 15425 of 1991, in which she was made 1st respondent. This court, considering the advanced age of her mother-in-law, directed her to produce her rnother-in-law before the Chief Judicial Magistrate, Periyar District at Erode. Accordingly she produced her mother-in-law before the Magistrate on 9-3-1992 and her statement was recorded. In her statement she had stated that she was living in her own house and she had not confined by any of the respondents therein. Hence the writ petition was dismissed on 16-3-1992. The averment that her mother-in-law was produced before the Magistrate in a stage managed manner, is nothing but falsehood. No new grounds are placed before this court in this habeas corpus petition. It has been filed only to harass her. When her rnother-in-law was produced before the Magistrate’ s Court, she and her brother accompanied her on 9-3-1992. At that time, the 1st petitioner and some others attacked her brother and threatened that they would kill her and her brother. Thereafter, she and her brother gave a complaint to the Sub-Inspector of Police, Erode Town police station and a case was registered in Crime No. 269 of 1992 and the said case is pending on the file of the Judicial Magistrate No. 3, Erode. The habeas corpus petition is not maintainable.\n<\/p>\n
 4. In the additional counter dated 10-1-1994 she has stated as follows:- There were disputes between the petitioners on the one hand and her husband and her mother-in-law on the other hand with respect to a property. There was also proceedings under Section 145 Cr. PC concerning the said property in M. C. No. 4 of 1989 on the file of the Revenue Divisional Officer and Executive first class Magistrate, Erode. The petitioners wanted to acquire the said property somehow. Since the petitioners found that her husband was proving an obstacle for this evil design, they murdered her husband with the help of four persons. The police investigated the murder and filed a charge, sheet against the 1st petitioner and four others. This case is now pending trial in M. C. No. i 29 of 1989 on the file of the District and Sessions Judge, Erode. Now, after the death of her husband, her mother-in-law and herself become the owners of the said property. Her mother-in-law is living by herself with her protection. The 1st petitioner is now seeking to get at her mother-in-law for the purpose of coercing her to get her right transferred to him. Only with that ulterior motive, the habeas corpus petition has been filed. Her mother-in-law does not wish to leave the house at Door No. 406\/407, Perundurai Road, Erode. She resides there as she apprehends physical violence at the hands of the petitioners.\n<\/p>\n
 5. The petitioners have also filed four separate affidavits all dated 31-1-1994 by (i) V.V.V. Muthusamy ( a nephew of Sellammal) (2) P. Karihikeyuri (a grandson of Sellammal), (3) Mrs. Baby Nalini (a grand daughter of Sellammal) and (4) the abovesaid Meenakashi. In Muthusamy’s affidavit’ it is slated that his mother Ramayee Ammal expired and he tried to convey the message to the abovesaid Sellamrnal through his neighbours, but the said neighbour that he went to the place where the said Sellammal was confined and found both gates were looked inside and in spite of repeated calling from outside two unidentified persons appeared through the window and did not allow him to go inside to meet Sellammal. Similar averments have been made in the abovesaid affidavits of Karthikeyan and Mrs. Baby Nalini. The abovesaid affidavit filed by Meenakshi, who was one of the petitioners in W. P. No, 15425 of 1991 states thus:– Since the relationship between her and her sister-in-law Sellammal is very close, she used to stay with her at Door No. 406 and 407, Perundarai Road, Erode Town about two years ago. One day, casually, she went to Save old palay ampudur, where her son was residing and after some time she returned to Perundurai, where she found that the doors and gates were closed. Hence, she went back to her son’s residence. When she filed W.P. No. 15425 of 1991, this Court directed the Judicial Magistrate, Erode to record the statement of the abovesaid Sellammal. Accordingly, she went to Court on 9-3-1992. There she was brutally pushed down by the 1st respondent herein and her brother and she had to be admitted in Erode General Hospital. C. C. No. 16 of 1993 was also registered in this regard and is pending. Even after all these, she went several times to the place, where her sister-in-law Sellammal was confined, but she was not permitted inside the premises. She is quite sure that the said Sellammal is confined against her will for the past two years.\n<\/p>\n
 6.  Before proceeding to deal with the submissions of the learned Counsel for the petitioners we should point out that in the above referred to W. P. No. 15425 of 1991 filed by the 2nd petitioner himself and the abovesaid Meenakshi against the very same 1st respondent herein and the police, seeking the very same relief as in the present habeas corpus petition, this Court while dismissing the said writ petition, has observed by its order dated 16-3-1992 as follows:\n<\/p>\n
  “It is represented by both parties that the detenu was produced before the Chief Judicial Magistrate, Periyar District Erode on 9-3-92 and her statement was recorded. A report has also been received from Chief Judicial Magistrate. In view of the statement given by the alleged detenu that she is not being kept wrongfully or she has not been confined illegally by any of the respondents and that she is living in her own house and that she does not want to go with petitioners or the first respondent, we do not see any justification to issue a writ of Habeas Corpus.”\n<\/p>\n
 7.  We must also further point out that in the said W. P. No. 15425 of 1991, the said Sellammal filed an affidavit dated 4-1-1992, stating as follows:\n<\/p>\n
 “The petitioners have filed an application before this Hon’ble Court vise (sic) stating that I have been confined by the respondent. The said allegation is hot true and I am not under the confinement of the respondent. I am aged about 80 years and not keeping in good health. Hence I am not in a position to move about and appear before this Hon’able Court.\n<\/p>\n
 I had been informed by my daughter-in-law namely the respondent herein that I should go over to Madras and appear before this Hon’ble Court. Except due to the reason of my old age, ill-health and chill weather condition and in a position to undergo travelling and appear before this Hon’able Court.”\n<\/p>\n
 8.  Despite the abovesaid decision in the prior writ petition and the above referred to affidavit of Sellammal herself, learned Counsel for the petitioners submits that only because subsequent to the said order the 1st respondent continues to confine the abovesaid Sellammal illegally in the abovesaid house, the present habeas corpus petition had to be filed in November, 1993. In this connection he relies on the allegations in the above referred to third party affidavits filed by the above said Muthusamy, Karthikeyan, Baby alias Nalini and the above said Meenakashi herself (the 2nd petitioner in the abovesaid earlier writ petition). He also submited that above said affidavit of Sellammal filed in the above said earlier writ petition and also her statement before the Chief Judicial Magistrate were not voluntarily given by her.\n<\/p>\n
 9.   Regarding this latter submission we may straightway state that it has absolutely no merit, particularly when the 2nd petitioner herein, who was a party to the earlier writ petition, did not challenge the correctness of the said report of the Chief Judicial Magistrate. It is not open to the petitioners herein to challenge the said report in this proceeding.\n<\/p>\n
 10.  Further, in the light of the abovesaid report of Chief Judicial Magistrate as well as the affidavit filed by Sellammal herself in the earlier writ petition coupled with the present counter affidavit of the 1st respondent that Sellammal is living in the above said door No. 406 and 407 “of her own free will” we are unable to give any weight to the above referred to third party affidavits filed in this writ petition or to conclude that Sellammal has been illegally detained. Further, those who have given the said affidavits are only close relatives of the petitioners, one of whom is even one of the petition, which was dismissed. If really Sellammal has been confined in the above referred to door number illegally in the way in which it is sought to be described by the petitioner’s, affidavit from independent neighbours to that effect could have been produced. But, no such affidavits from neighbours of independent third parties have been produced.\n<\/p>\n
 11.  At any rate, all that learned Counsel for the petitioner finally submits is that the respondents should be directed to produce Sellammal before this Court so that this Court could ascertain from her directly as to whether she has been confined wrongfully by the 1st respondent or not. But, we are not inclined to concede to this request, particularly because the said Sellammal is an old woman, aged about 85 years and even earlier she had expressed her inability to move about or travel long distance. At any rate, in the light of her own statement made earlier before the Chief Judicial Magistrate, we do not think it necessary to direct the respondents to produce her.\n<\/p>\n
 12. We may also incidentally point out that the averments made by the 1st petitioner in the supporting affidavit that “in a stage managed manner she was produced before the Magistrate” cannot be accepted at all, particularly when her earlier production before the Magistrate, was not even challenged earlier.\n<\/p>\n
 13.   No doubt, there is also an averment and counter averments regarding the criminal prosecution that has been launched pursuant to the death of   1st respondent’s husband and though initially we wanted to know some more details about the same, we feel that there is no necessity to deal with the same, in order to dispose of this Habeas Corpus petition.\n<\/p>\n
 14.    The remedy under Article 226 of the Constitution of India is a discretionary remedy. The Supreme Court has also observed in Mohd. Ikram Hussain v. State of U. P., (AIR<\/a> 1964 SC 1625): (1964 (2) Cri LJ 590 at p. 596) thus:\n<\/p>\n
  “………..the writ of habeas corpus is fectinum remedium and the power can only be exercised in a clear case.”\n<\/p>\n
 In the said case, the Supreme Court was constrasting the remedy of writ of habeas corpus with the remedy providing under Section 100 of the old Code of Criminal Procedure, corresponding to Section 97 of the present Code of Criminal Procedure runs as follows:-\n<\/p>\n
  “97. Search for persons wrongfully confined. If any District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom search warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the plaint regarding some persons in which those persons were added as accused, who were not shown as the accused in the first information report. In that case, there was no grievance by the complainant, as in the instant case that the first information report was not read over to him and that his signatures were obtained in blank white papers. So, on the facts of that case, the learned Judge had held that to allow the continuance of the prosecution regarding newly added accused is a clear abuse of process of law. In Kurnaran v. Emperor ( 1942 Mad WN (Cri) 66 : (1942 (43) Cri LJ 813), this court has held that when the common object of an unlawful assembly was only to cause hurt, but two persons were in fact murdered by two members of the assembly, the remaining members cannot, under the first clause of Section 149, IPC, also be found guilty of murder. In that case, common intention was sought to be imputed because of the reason that the appellants had shouted that none of the uralars were to be left alive and it was largely on the use of these words and the lethal weapons with the first two appellants that the common object of the unlawful assembly was held to be the murder of the uralars and their families. The question that arose was whether the use of these threatening words by the first two appellants is sufficient evidence to show that the rest of the appellants shared a homicidal intention with them. It was held that in all the circumstances of the case, the evidence is insufficient to show that the common object of the appellants was murder and the learned Judges had held that their common object was only to cause hurt. Thus on the facts of that case, that decision was arrived at. In the instant case, it is yet to be seen as to whether materials are available as in the above case. The fact that accused came together to the house of the complainant and any of them, some with lathal weapons and the use of the words and manner of attack and the place where the attacks were inflicted and the part of the body where cuts were aimed, were all factors to be taken cumulatively to arrive at a conclusion. That can be considered only at the time of trial when evidence in this regard would be available.\n<\/p>\n
 6. Since none of the submissions made by Mr. G. Krishnan finds acceptance with me, the inevitable result is that the petition will have to be dismissed and shall stand dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Balabhadra Prasad Das And Anr. vs State Of Orissa on 17 November, 1994 Equivalent citations: 1995 CriLJ 1284 Author: A Pasayat Bench: A Pasayat ORDER A. Pasayat, J. 1. In this application under Section 482 of the Code of Criminal Procedure, 1973 (in short, the ‘Code’) a prayer has been made by […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-127877","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nBalabhadra Prasad Das And Anr. vs State Of Orissa on 17 November, 1994 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/balabhadra-prasad-das-and-anr-vs-state-of-orissa-on-17-november-1994\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balabhadra Prasad Das And Anr. vs State Of Orissa on 17 November, 1994 - 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