Orissa High Court
Jagannath Sadangi vs Smt. Sambari Sourani And Anr. on 29 February, 1988
Equivalent citations: 1989CRILJ624
ORDER K.P. Mohapatra, J.
1. This is a petition under Section 482 of the Code of Criminal Procedure ('Code' for short) to quash the Order dated 7-2-1987 passed by the learned Sub-Divisional Judicial Magistrate, Gunupur, taking cognizance of an offence under Section 354, I.P.C. against the petitioner.
2. Facts may be stated in brief. The petitioner is the Officer in charge of the Gudari Police Station. In connection with investigation of a complaint case, registered as 1 C.C. No. 13 of 1986 under Section 326, I.P.C. in which the learned Sub-Divisional Judicial Magistrate had calleld for a report, opposite party Sambari Sourani, a young girl and some other witnesses named, Sudhir Kumar Pujari, Narayan Rao, P. Dharma Raju and Geli (mother of the opposite party) were called to the Police Station at about 4 p.m. on 13-5-1986. When they arrived at the Police Station, the opposite party and her mother were made to sit inside the front room and the other witnesses were asked to sit on the verandah. Except the petitioner, the opposite party and the above named persons, no one else was present at the Police Station. The petitioner called the opposite party to a side room for the purpose of taking her statement and once she was inside, he made her naked by pulling her wearing saree and blouse and attempted to commit sexual intercourse with her. She protested and cried for help hearing which the other witnesses rushed inside the room. On seeing them, the petitioner left her and threatened all of them with dire consequences if they would ever disclose the incident. Thus the petitioner outraged her modesty and, therefore, she filed a complaint petition before the learned Sub-Divisional Judicial Magistrate on 14-5-1986.
3. The learned court below directed an enquiry under Section 202 and passed an Order on 12-9-1986 holding that the opposite party had no prima facie case and so he dismissed the complaint petition under Section 203 of the Code. Thereupon the opposite party filed Criminal Revision No. 117 of 1986 before the learned Sessions Judge. Jeypore who by his Order dated 3-1-1987 remanded the case to the learned trial Court for proper appreciation of the statements recorded in the enquiry, under Section 202 of the Code and for fresh disposal in accordance with law. After remand the learned trial Court passed the impugned Order.
4. Mr. A.C. Panda, learned Counsel appearing for the petitioner, strenuously urged that the entire case of the opposite party against the petitioner was not only untrue, but also was highly improbable because, in broad day light, in the presence of several persons who were close by, it was most unlikely that the petitioner had outraged the modesty of the opposite party in the manner described in the petition. So there was lack of prima facie case warranting the impugned order of cognisance to be quashed. He also raised the question of sanction under Section 197 of the Code. Mr. N.C. Pati, learned Counsel appearing for the opposite party, on the other hand, urged that on the facts appearing from the statements of the witnesses during the enquiry under Section 202 there was no other alternative than to take cognizance against the petitioner and in a case of this nature it was not necessary to obtain sanction under Section 197 of the Code before filing of the complaint.
5. During hearing of the petition, Mr. Panda abandoned his point of sanction under Section 197 of the Code obviously because, he found no substance in it and rightly so. Therefore, in a case of this nature' where personal allegations of a criminal offence have been made against a Public Servant unconnected with the discharge of official duties, the question of obtaining sanction for prosecution under Section 197 of the Code does not at all arise. This contention is accordingly decided against the petitioner.
6. The main contention of Mr. Panda to the effect that there was no prima facie case against the petitioner for taking cognizance of the offence under Section 354, I.P.C. requires consideration. The legal principle laid down , Chandra Deo Singh v. Prokash Chandra is quoted below:
...No doubt, one of the objects behind the provisions of Section 202, Cr. P.C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the .complainant.
x x x x xxx ...No doubt, as stated in Sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complainant, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.
Relying upon the aforesaid principles the following guidelines were prescribed in , Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi:
...Thus in the following cases, an order of the Magistrate issuing process against the accused can be quashed or set aside.:
(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
In the light of the aforesaid principles it is necessary to look to the statements recorded by the learned trial Court in the enquiry under Section 202 of the Code. In the complaint petition four witnesses were cited besides the opposite party. Out of them she examined only Sudhir Kumar Pujari and P. Dharmaraju. She did not examine Lade Narayan Rao and her mother Smt. Geli Saurani. She did not also examine herself in the enquiry proper although her initial statement was recorded prior to the enquiry. According to her version in the complaint petition and in the initial statement, all the witnesses came to the Police Station at about 4 p.m. and were directed to take their seat on the verandah. She was called inside the room by the petitioner and as already referred to above obscene gestures were made and the petitioner attempted to make her naked and commit rape on her. She went as far as saying that she was made to lie on the ground for the above purpose. Sudhir Kumar Pujari stated that the witnesses sat on the verandah. The opposite party was first called by the petitioner inside the room. Ten to fifteen minutes later he heard opposite party raising an alarm. So all the four witnesses rushed inside the room and found the opposite party naked and the petitioner was holding her left hand by his own left hand. By his right hand he was pulling up the blouse put on by the opposite party. On further clarification he stated that the witnesses were sitting on the verandah of the very office room where the opposite party was misbehaved. The door was by the side of the verandah itself where the witnesses sat. The other witness P. Dharamaraju, a petition writer, gave a slightly different version. He was not called by the petitioner, but accompanied the others to the Police Station at their request. According to him when they reached the Police Station, they were made to sit under a Neem tree inside the Police Station premises and were advised to come when calleld for recording statements. The opposite party was called first and about five minutes after she raised the alarm which the witnesses heard. They rushed inside the room and saw the opposite party naked. The petitioner was holding her right shoulder by his left hand and was trying to pull out the blouse by his right hand. The petitioner was also trying to make the opposite party lie on the ground. It is to be considered if the above story given put by the opposite party and two of her witnesses is patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there was sufficient ground for proceeding against the petitioner. In my opinion, the story was patently absurd and inherently improbable taking it in its face value. It was broad day light and the time was 1 p.m. The alleged incident is said to have taken place inside the office room of the Officer-in-charge. There must have been at least a few constables inside or around the Police Station. Four other persons who are said to have accompanied the opposite party were also present. One of them Lade Narayan Rao was also an influential person of the locality. According to the versions of the opposite party and Sudhir Kumar Pujari, all the witnesses were made to sit on the verandah very close to the room although for obvious reasons, P. Dharmaraju stated that they were sitting outside under a Neem tree. Would a Sub-Inspector of Police make attempt to commit sexual intercourse with a woman at such a time and place when at least four persons were just outside the room having a door abutting on it and when constables might have been either in the Police Station or around it? To me, the story given out appears quite unbelievable and accordingly I find that the opposite party had no prima facie case for taking cognizance of the offence under Section 354, I.P.C. If the time was night and the opposite party was alone inside the police station, then there could have been some probability of existence of a prima facie case for the offence.
7. For the reasons stated above, I hold that the prosecution of the petitioner is an abuse of the process of the Court and so the Order of cognizance dated 7-2-1987 and the proceeding itself are hereby quashed. The criminal misc. is accordingly allowed.