Orissa High Court
Shri Akshaya Kumar Parida vs State Of Orissa And Anr. on 20 May, 2005
Equivalent citations: 2005(II)OLR251
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. The informant-opp. party No. 2 filed a written report before the I.I.C., Mancheswar Police Station on 31.5.2001 and basing on that report Mancheswar P.S. Case No. 108 of 2001 was registered. After investigation of the case, charge-sheet was submitted against the accused for offences under Sections 341, 323, 294, 354, 506, IPC and Section 3 of the S.C. & S.T. (PA) Act in the corresponding G.R. Case No. 1753 of 2001. Learned S.D.J.M., Bhubaneswar after perusing the materials on record took cognizance of those offences and issued N.B.W. for production of the petitioner-accused. Pursuant to that warrant issued by the Court, the petitioner was arrested, produced, remanded to the custody and was then released on bail. The petitioner has now filed this application under Section 482, Cr.P.C. for quashing the proceedings of G.R. Case No. 1753 of 2001 pending before the S.D.J.M., Bhubaneswar basically on the plea that the order of cognizance and issue of warrant against him was illegal.
2. Mr. A. K. Parida appearing in person submitted that the allegations made in the FIR against him are false and designed to harass him. He submitted that there is also no material on record to establish prima facie case for the alleged offences, but without application of mind, learned S.D.J.M., Bhubaneswar took cognizance of the offence mechanically. He also submitted that case was registered for several offences including offence under Section 3 of the S.C. & S.T. (PA) Act, but in violation of the provision of Section 7 of the S.C. & S.T. (P.A.) Rules (hereinafter referred to 'the Rules') investigation of the case was conducted by an A.S.I. of Police and thereafter the impugned order of cognizance is unsustainable in the eye of law. In support of his contention Mr. Parida cited the cases of Pema Ram v. State of Rajasthan (1993) Crl. L.J. 252 : State v. Smt. D. Jayamma and Anr. (2002) Crl. L.J. 3872 and Jhulu Behera alias Dalai and Anr. v. State of Orissa, 2000 (I) OLR 208 : [2000 (2) Crimes 385.
3. In spite of notice none appeared on behalf of the opposite party No. 2.
4. Ms. (C. Kasturi, learned Additional Government Advocate appearing for opposite party No. 1 submitted that the allegations against the petitioner noted in the FIR have been substantially corroborated by the informant and witnesses and therefore it is incorrect to say that prima facie case is not made out for the alleged offences from the materials produced by the prosecution. According to her truth of the allegation and the reliability of the statement of witnesses are matters to be threshed out at the stage of trial and not at the stage of cognizance. It is further submitted that although the investigation of the case was started by one A.S.I. of police of Mancheswar Police Station, subsequently one D.S.P. took charge of the investigation, completed the same and submitted the charge-sheet and so mandates of Rule 7 of the S.C. & S.T. (P.A.) Rules was never violated. Learned Additional Government Advocate claimed that the impugned order cannot be quashed as it does not suffer from any factual or legal error.
5. The allegations noted in the FIR in brief is that the informant-opposite party No. 2 and his wife, who belong to scheduled caste, were residing as tenants in the house of the petitioner on a monthly rent of Rs. 950/-. When the opposite party No. 2 informed the petitioner that he will vacate the house on 30th May, 2001, the petitioner demanded an extra amount of Rs. 950/- and when opposite party No. 2 refused to pay such amount, he abused opposite party No. 2 and his wife in obscene language, assaulted them with slaps, pushes etc., threatened then with dire consequences and also outraged the modesty of the lady. The allegation of the informant finds support from the statement of the witnesses Smt. Bandana Nayak, Prafulla Kumar Prusty, Rabinarayan Majhi, Ullash Bihari. Law is settled that at the stage of cognizance the evidence produced by the prosecution are not to be assessed threadbare as is done at the final disposal of the case. If the materials produced by the prosecution accepted in its entirety reveal prima facie the ingredients of the offences alleged, then cognizance of those offences can be taken. In the present case some of the witnesses have supported the allegations made by opp. party No. 2 in the FIR. These statements accepted in its entirety reveal the elements of the offence alleged. So it is incorrect to say that the material on record do not reveal prima facie case for the alleged offences.
6. The second submission of Mr. Parida is that the order of cognizance must be quashed as the statutory provision of Rule 7 of the Rules has been violated during investigation of the case. Rule 7 of the aforesaid Rules mandates that a case involving offences under S.C. & S.T. (P.A.) Act should be investigated by an Officer not below the rank of D.S.P. The case diary shows that investigation of the case was undertaken by one A.S.I. of Mancheswar Police Station and the said officer recorded the statements of the witnesses. At a later stage of investigation, it was found that offence under Section 3 of S.C. & S.T. (P.A.) Act is also involved and the Superintendent of Police; Bhubaneswar directed the I.O. to hand over the investigation of the case to Mr. D.N. Satpathy, D.S.P., Bhubaneswar. The said D.S.P. after taking over the investigation tested the witnesses, made supervision and then submitted charge-sheet.
7. The petitioner challenges that such action of a D.S.P. will not amount to investigation and therefore, the" mandate of Rule 7 of the aforesaid Rules was never complied with. In the case of State v. D. Jayamma (supra), Mohan Choudhury v. State of Bihar (2001 Crimes 529), it was observed by the High Court of Karnataka and Patna respectively that unless a case involving offence under S.C. & S.T. (P.A.) Act is investigated by an Officer not below the rank of D.S.P., the investigation will be vitiated and the cognizance taken on such investigation for any offence under the S.C. & S.T. (P.A.) Act would not be allowed to stand. In the case of Jhulu Behera and Dalai v. State of Orissa (supra), the question came up as to whether taking over charge of investigation by the D.S.P. and submission of charge-sheet by such officer after supervision of the previous investigation can amount to investigation as contemplated under Rule 7 of the aforesaid Rules. After examining the position carefully this Court held that taking charge of the investigation at late stage by the D.S.P. and submission of charge-sheet after some supervision will not amount to investigation in the case. It was also observed that where investigation has not been done by the officer of the rank of D.S.P., then the cognizance of offence under S.C. & S.T. (P.A.) Act shall be quashed. The Courts, however, expressed unanimous view that in such contingency order of cognizance so far as offence under I.P.C. are concerned, cannot be quashed.
8. In the instant case the investigation as contemplated under Rule 7 of the aforesaid rules in the strict sense was not done by an Officer of the rank of D.S.P. So for violation of the mandates contained in Rule 7 of the aforesaid Rules, the order of cognizance under Section 3 of the S.C. & S.T. (P.A.) Act against the petitioner is legally vulnerable. However, the order of cognizance so far as offences under Section 341, 294, 506, IPC, are concerned, cannot be faulted as investigation of such offence fey a police officer below the rank of. D.S.P. is not barred.
9. The petitioner has also challenged the maintainability of the proceeding on the ground of limitation and delay. According to him the investigation continued for more than 3 years causing utter prejudice to him, but without considering the said delay and the aspect of limitation as provided under Section 468, Cr.P.C. the learned SDJM, took cognizance of the offence. The trial Court has some discretion under Section 473, Cr.P.C. for extending the period of limitation. That apart, Sections 470 and 471, Cr.P.C. contain the provisions regarding extension of time in certain cases. All these aspects involved questions of facts and cannot be decided at this stage by this Court. The issue is. therefore, left open to be agitated before the trial Court, if so advised.
10. In the result, therefore, the order of cognizance in respect of offences under Sections 341, 323, 294, 354, 506, IPC is maintained, but the impugned order of cognizance for Section 3 of the S.C. and S.T. (P.A.) Act is quashed.
11. With the aforesaid observations the CRLMC is disposed of.