Orissa High Court
Hada Naik And Ors. vs Abhaya Naik on 25 January, 2005
Equivalent citations: 2005CRILJ2274, 2005(I)OLR623
Author: I.M. Quddusi
Bench: I.M. Quddusi
JUDGMENT I.M. Quddusi, J.
1. No one appears for the opposite party in spite of service of notice on him.
2. By means of this petition filed Under Section 482, Cr.P.C., petitioner has prayed for quashing of the impugned order dated 5.7.2004 passed by the learned S.D.J.M., Dhenkanal in I.C.C. No. 95 of 2004 and also for quashing processes issued against the petitioners.
3. The brief fact of the case are that the complaint was filed before the learned S.D.J.M., Dhenkanal by the opposite party against the petitioners on the allegation that :-
(a) the petitioner is a poor Harijan and having no landed property of his own resides with his family by constructing a residential house over one Govt. Plot like other co-villagers since last 10 years. Whereas the accused persons are also residing in the same village on Govt. Land which is situated just after one house from that of complainant.
(b) the accused persons are goonda, rowdy and antisocial in nature and seriously threatening the complainant to leave the place with family or else they will finish the entire family and ruin in the house.
(c) on the date of occurrence there was also disturbance between the parties and in broad day light the accused Champa threatened to set fire in the house.
(d) at about 1.00 A.M. on the date of occurrence when the complainant and other family members were sleeping by opening the door due to severe heat, the accused came jointly and the accused No. 1 dragged the wife of the complainant and gave slap to the cheek and back of his wife and when his wife raised hulla, all the male accused persons No. 1 to 4 entered into the house and started assaulting by hand and foot to my person and my wife. And at that time the only lady accused Champa Naik by help of match box and stick, fired the roof of my house and as a result the house began burning with light and then all the accused persons started running from my house and we raised further hulla saying "Ghar Nian Lagei Champa Paleigala Dhain Asa", then some people of our locality gathered and one Barina Naik telephoned to the Fire Office at Dhenkanal, who entered within one house and helped the local people to extinguish the fire and when the fire was controlled the entire house and assets were ruined.
(e) on the next day I went to the R.I. Kenkadapal at Rathagada, Dhenkanal to inform him and then to Fire office to take the report who assured to give the report after 8 days.
(f) then opp.party proceeded to the Sadar P.S. and intimated the fact in writing and the Police stated that before him, the accused No. 2 and 5 (petitioner Nos. 2 and 5) jointly had been to the P.S. and reported against him. They also assured to take steps and investigated the matter. After enquiry they remained silent and till date no action has been taken against the accused persons. Hence delay in filing the complaint.
(g) due to overt act of the accused persons (petitioners), the only residence of the house is lost a sum of Rs. 5,000/- has been burnt down which was kept by the complainant by incurring loan for his business in cattle the household articles, even clothes have also been burnt."
4. The complaint was filed on 2.7.2004 and the learned S.D.J.M. ordered thereon to put up on 5.7.2004 with the office. On 5.7.2004 the following order was passed by the learned S.D.J.M. :-
"Perused the office note. The complaint petition filed is in order. Perused the complaint petition which is filed alleging offences punishable Under Section 448/436/506/354/34 of the I.P.C. Cognizance is taken. Put up on 9.7.04 for S.A. Sd/-B. K. Mishra 5.7.04 S.D.J.M., Dkl"
Thereafter the matter was taken up on 9.7.2004 on which date complainant's statement was recorded Under Section 200, Cr.P.C. and it was ordered to put up on 13.7.2004 for evidence Under Section 202, Cr.P.C.
The order dated 9.7.2004 is quoted as under:
"Complainant is present. His statement is recorded on S.A. Put up on 13.7.04 for evidence Under Section 202, Cr.P.C.
Sd/- B.K. Mishra 9.7.04 S.D.J.M."
Thereafter when the case was taken up on 13.7.2004, learned counsel for the complainant filed a memo not to adduce evidence Under Section 202, Cr.P.C. on which date the following order was passed by the learned S.D.J.M. :-
"Advocate for complainant files a memo not to adduce evidence Under Section 202, Cr.P.C. Complainant to take steps by 28.7.2004."
Sd/-B.K. Mishra S.D.J.M.,"
Thereafter on 28.7.2004 the learned S.D.J.M. passed the following order directing to issue summons fixing 8.9.2004 for appearance :
"Advocate for the complainant files P. fee, w.p. Issue the same fixing 8.9.04 for appearance. Dictated Sd/- B.K. Mishra S.D.J.M."
5. Learned counsel for the petitioners submitted that though the learned S.D.J.M. ordered to record statement of the complainant Under Section 202, Cr.P.C. but on the application of the learned counsel for the complainant for not to record statement Under Section 202, Cr.P.C., learned S.D.J.M. issued summons without application of mind which is against the law.
Before proceeding further, it is necessary to peruse the provisions of Sections 200 and 202, Cr.P.C. which are reproduced as under :
"200. Examination of complainant : A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :
Provided that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses:-
(a) If a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) If the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
202. Postponement of issue of process-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as the thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
Provided that no such direction for investigation shall be made :
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant."
6. A bare perusal of Section 200, Cr.P.C. shows that under that Section it is incumbent upon the learned Magistrate taking cognizance of an offence to examine the complainant and the witnesses present on oath except in the case where the complaint is made by a public servant in the discharge of his official duties or it is the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192, Cr.P.C. but Section 202, Cr.P.C. provides that if the Magistrate thinks fit, he may postpone issue of process against the accused, and either inquire into the case himself or direct the case for investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
7. Therefore, there is no question to proceed Under Section 202, Cr.P.C. by a Magistrate if he does not think proper to postpone issue of process against the accused. A perusal of the order dated 9.7.2004 shows that the statement of the complainant was recorded Under Section 200, Cr.P.C. and further the date was fixed for recording evidence Under Section 202, Cr.P.C. meaning thereby that the Magistrate did not think it proper to proceed against the accused-petitioners and hence he had postponed issue of process and directed to record statement Under Section 202, Cr.P.C. Therefore, once the Magistrate had made up his mind for postponement of issue of process against the accused-petitioners and directed to record statement Under Section 202, Cr.P.C., it was not open for him to issue process against the accused-petitioner on the application/memo filed on behalf of the complainant that not to adduce evidence Under Section 202, Cr.P.C., without making or concluding such enquiry. Learned Magistrate has also not mentioned any reason as to why when he was of the view that he would make enquiry by way of adducing evidence Under Section 202, Cr.P.C., why he had changed that decision subsequently without any reason.
8. Considering the facts and circumstances mentioned above, summoning orders against he petitioners are not sustainable in the eye of law.
9. In view of the above; this petition is allowed. Summoning orders issued against the petitioners and other subsequent proceedings held against them are quashed. However, it will be open for the learned Magistrate to conclude the inquiry first and record evidence Under Section 202, Cr.P.C. and then proceed further in accordance with law.
10. In view of the above, this petition is allowed. Summoning orders issued against the petitioners and other subsequent proceedings held against them are quashed. However, it will be open for the learned Magistrate to conclude the inquiry first and record evidence Under Section 202, Cr.P.C. and then only proceed further in accordance with law.