Orissa High Court
Bijay Nayak And 20 Ors. vs State Of Orissa And Anr. on 27 January, 2006
Equivalent citations: 2006(I)OLR367
Author: L. Mohapatra
Bench: L. Mohapatra
ORDER L. Mohapatra, J.
1. The petitioners have filed this application under Section 482 Cr.P.C. for quashing the orders dated 28.3.2005 and 22.6.2005 passed by the learned S.D.J.M., Bhadrak in ICC No. 397 of 2004/G.R. Case No. 677 of 2004 taking cognizance of the offence under Section 3 of the S.C. and S.T. (Prevention of Atrocities) Act.
2. One Ambi Mukhi lodged an F.I.R. before the Officer-in-charge, Banth P.S. in the district of Bhadrak alleging therein that on 2.6.2004 at about 11.00 A.M. the petitioners came to her house and damaged the same. Again on 4,6.2004 while she was constructing the house with bamboo and straw, the petitioners armed with weapons attacked and scolded her by obscene language. The said F.I.R. was registered as Banth P.S. Case No. 38 of 2004 and investigation started. After completion of investigation, charge-sheet was submitted for commission of offences under Sections 147, 148, 323, 324, 325, 294, 354, 506 and 149 of the Penal Code against some of the accused persons. After submission of charge-sheet, the informant not being satisfied filed a petition praying the Court to take cognizance for commission of offences under Sections 354 and 379 of the Penal Code read with Section 3 of the S.C. and S.T. (Prevention of Atrocities) Act and also alleged that apart from the charge-sheeted accused persons, Sahadev Behera and Ashok Nayak are involved in commission of offences and process be issued against the said accused persons. The trial Court rejected the petition by order dated 16.12.2004 on the ground that at the stage of trial, if evidence is adduced by the prosecution regarding involvement of other accused persons or commission of any other offence for which charge-sheet has not been submitted, steps could be taken under Section 319 of the Code of Criminal Procedure. This order was not challenged by the informant and it attained finality. Thereafter, a complaint was filed by the informant vide I.C.C. No. 397 of 2004 in the very same Court alleging commission of offence under Section 3 of the S.C. and ST (P.A.) Act. In the said complaint case, inquiry under Section 202 Cr.P.C. was taken up and cognizance for commission of the said offence was taken by order dated 22.6.2005. Challenging the orders dated 28.3.2005 and 22.6.2005 this application has been filed.
3. Sri Mohapatra, the learned Counsel appearing for the petitioners submitted that the protest petition filed by the informant after submission of charge sheet had been rejected by order dated 16.12.2004 and the same having been rejected, there was no scope for filing a second complaint on the self same allegation against the same accused persons. The learned Counsel for the informant/complainant, on the other hand, submitted that a second complaint is not a bar and under certain circumstances, a second complaint is maintainable In this connection, reference may be made to a decision of the Apex Court in the case of Mahesh Chand v. B. Janardhan Reddy and Anr. . The Apex Court in the said case observed as follows :
The second complaint would not be completely barred. There is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the magistrate under Section 203 Cr.P.C. may take cognizance of an offence and issue process, if there is sufficient grounds for proceeding. Second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings have been adduced.
4. If the present case is examined in the light of the observations made by the Supreme Court in the aforesaid case, it could be found that after submission of charge-sheet, a petition was filed by the informant before the trial Court requesting it to take cognizance of offences under Sections 354 and 379 of the Penal Code read with Section 3 of the S.C. and S.T. (P.A.) Act and also issue process against the two other persons who had not been charge-sheeted by the police. The learned Magistrate should have registered the protest petition as a complaint and dealt with it in the manner prescribed under law, but instead of doing so, a wrong procedure was adopted by the learned Magistrate and the petition was rejected. However, the said order having not been challenged, it attains finality. Now the question that comes up for consideration is as to whether the petition filed by the complainant could be treated as a complaint and as to whether rejection of the same would stand as a bar for filing a second complaint. There cannot be any dispute that the protest petition filed by the informant had never been dealt with as an independent complaint and without holding inquiry, the petition was rejected solely on the ground that the grievance of the informant could be taken care of at the stage of trial under Section 319 Cr.P.C. Therefore, in the eye of law, there was no complaint and accordingly, filing of complaint case at a later stage, in my view, was not prohibited. Apart from the above, charge sheet had not been submitted against some of the accused persons who have been added as accused in the complaint case and an additional offence is alleged to have been committed i.e. under Section 3 of the S.C. and S.T. (P.A.) Act for which no charge sheet has been submitted. On this score, a second complaint was maintainable. Since I have already held that first petition had never been treated as a complaint case, the argument advanced by the learned Counsel for the petitioners cannot be accepted and I.C.C. No. 397 of 2004 is to be considered as first complaint.
5. In view of the discussions made above, I do not find any merit in the application and accordingly, the same is dismissed.