Orissa High Court
Hrusi Alias Hrusikesh Behera And Others vs Smt Kumari Urma on 10 July, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 311 OF 2005
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.38 of 2004
pending on the file of S.D.J.M., Boudh.
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Hrushi @ Hrusikesh Behera &
others ......... Petitioners
-Versus-
Smt.Kumari Urma ......... Opposite Party
For Petitioners: - Mr. N.P. Pattnaik
For Opp. Party: - None
For State: - Mr. Chitta Ranjan Swain
Addl. Standing Counsel
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 10.07.2017
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S. K. SAHOO, J.This is an application under section 482 of Cr.P.C. filed by the petitioners Hrushi @ Hrusikesh Behera, Sashi Behera, Ghasi Mohanandia and Nabina Mahanandia challenging the impugned order dated 10.12.2004 passed by the learned S.D.J.M., Boudh in I.C.C. Case No. 38 of 2004 in taking cognizance of offences under sections 323/450/354/506(ii)/376 2 read with sections 511/34 of the Indian Penal Code and directing issuance of process against them.
The opp. party earlier filed a complaint petition in the Court of learned S.D.J.M., Boudh against the petitioners which was registered as I.C.C. Case No. 35 of 2004 for taking of cognizance of offences under sections 450/ 376/ 511/ 354/ 323/ 506(ii)/34 of the Indian Penal Code. The learned S.D.J.M. recorded the initial statement of the complainant in which she stated that on 13.10.2004 at about 1.00 p.m. the occurrence took place inside her house and at that time she was present alone in her house and her husband and other family members were absent from the house and the petitioners forcibly entered in the house and petitioner no.3 Ghasi Mahanandia assaulted her and other three petitioners made her naked and thereafter the petitioner no.1 took off her saya, made her lie down and committed sexual intercourse. When she raised hulla, her uncle- in-law came to the spot and informed her husband after he returned from Baghiapada weekly market. She further stated in the initial statement that the petitioner no.4 Nabina Mahanandia assaulted to her husband by split wood and thereafter the accused persons left the spot and her husband sustained injury on his chest and arm and her blouse was torn and bangles were 3 broken and she sustained injuries on her both hands. She further stated that she lodged a written report before the Inspector-in- charge of Boudh police station but since the police did not take any legal action against the petitioners, she filed the complaint petition. After the initial statement was recorded on 01.11.2004, the learned S.D.J.M., Boudh decided to conduct inquiry under section 202 Cr.P.C. and on 19.11.2004 the advocate for the complainant filed a memo that the complainant does not want to adduce/produce witnesses for inquiry, accordingly, the memo was accepted. The learned S.D.J.M., Boudh held that the allegation is under sections 453/454/323/506/376 read with section 511 of the Indian Penal Code which is under sessions trial and accordingly dismissed the complaint petition under section 203 Cr.P.C. vide order dated 19.11.2004.
The opp. party-complainant filed another complaint petition relating to the self-same set of facts against the petitioners before the learned S.D.J.M., Boudh which was registered as I.C.C. case No. 38 of 2004 for taking cognizance of offences under sections 450/376/511/354/323/506/34 of the Indian Penal Code and in that complaint petition, she has mentioned about the filing of the earlier complaint petition and also its dismissal on 19.11.2004 under section 203 Cr.P.C. She 4 stated in the complaint petition that since she failed to produce her witnesses, the same was dismissed under section 203 Cr.P.C. After filing of the second complaint petition, the complainant was examined and her initial statement was recorded on 24.11.2004 and thereafter one witness namely Kusa Jagadala was examined by the complainant in the inquiry under section 202 Cr.P.C. on 30.11.2004 and on 07.12.2004 another witness namely Keshab Urma was examined. The learned S.D.J.M., Boudh after perusing the complaint petition, the statement of the complainant and the witnesses examined during inquiry under section 202 Cr.P.C. found prima facie case under sections 323/450/354/506(ii)/376 read with sections 511/34 of the Indian Penal Code against the petitioners and accordingly took cognizance of such offences and issued process which is impugned in this application under section 482 Cr.P.C.
Mr. N.P. Pattnaik, learned counsel appearing for the petitioners contended that the impugned order dated 10.12.2004 passed by the learned S.D.J.M., Boudh suffers from non- application of mind and when the first complaint petition filed by the opp.party-complainant on the self same set of facts was dismissed under section 203 Cr.P.C. by him in I.C.C. Case No. 35 of 2004, the second complaint petition should not have been 5 entertained. It is stated that the order dated 19.11.2004 passed by the learned S.D.J.M., Boudh in I.C.C. case No. 35 of 2004 has reached finality and it was not challenged by the opp.party in any higher forum and therefore, the learned Magistrate was not justified in entertaining the second complaint petition.
In spite of issuance of notice to the opp. party- complainant and A.D. returned after valid service, none appears on her behalf.
The question that crops up consideration is whether in the facts and circumstances of the case when the first complaint petition filed by the opp. party was dismissed on 19.11.2004 under section 203 Cr.P.C. in I.C.C. case No. 35 of 2004, the second complaint petition on the self same set of facts is maintainable or not?
Section 203 Cr.P.C. enumerates how a complaint petition filed by the complainant can be dismissed.
A Magistrate may dismiss the complaint under section 203 Cr.P.C. on three grounds. In the first place, if he, upon the statements made by the complainant and his witnesses, reduced to writing under section 200, finds no offence has been committed; in the second place, if he distrusts the complainant and his witnesses' statements; and in the third 6 place, if he conducts an inquiry or direct for investigation under section 202 Cr.P.C. and considering the result of the inquiry or investigation coupled with the statements of the complainant and his witnesses, he is not satisfied that there is sufficient ground for proceeding against the accused, the Magistrate may dismiss the complaint. At the time of dismissing the complaint petition, the Magistrate shall briefly record his reasons for so doing. It may not be an elaborate one but it should reflect the minimum reasons for passing such an order.
Section 203 Cr.P.C. consists of two parts, the first part lays down the materials which the Magistrate must consider and the second part states that if after considering those materials, there is no sufficient ground for proceeding; the Magistrate may dismiss the complaint. Therefore, while exercising such power under section 203 of the Code, it is incumbent upon the Magistrate to reflect in his order, the basis for arriving at the conclusion that there are no sufficient grounds to proceed with the complaint case.
So far as the maintainability of the second complaint after the dismissal of the first one, it is held in case of Pramatha Nath Talukdar -Vrs.- Saroj reported in A.I.R. 1962 S.C. 876, that an order of dismissal under Section 203 7 Cr.P.C. is, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances i.e. (a) where the previous order was passed on incomplete record or (b) on a misunderstanding of the nature of the complaint or (c) the order which was passed was manifestly absurd, unjust or foolish or(d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.
In case of Jatindra Singh -Vrs.- Ranjit Kaur reported in A.I.R. 2001 S.C.784, it is held that if the dismissal of the complaint was not on merit but on default of the complainant to be present, there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under Section 203 of the Code was on merits, the position would be different as settled in case of Pramath Nath (Supra).
In case of Mahesh Chand -Vrs.- B. Janardhan Reddy reported in A.I.R. 2003 S.C. 702, it was held in a case where a previous complaint is dismissed without assigning any reasons, on a subsequent complaint, the Magistrate under section 204 Cr.P.C. may take cognizance of an offence and issue process if there is sufficient ground for proceeding. Second 8 complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case.
In case of Ranvir Singh -Vrs.- State of Haryana reported in (2000) 9 Supreme Court Cases 642, the question came up for consideration as to whether a second complaint would be maintainable when the earlier one had not been dismissed on merits, but for the failure of the complainant to put in process fees for effecting service, Hon'ble Court relying upon Pramath Nath Talukdar's case (supra) held that even if a complaint was dismissed under section 203 Cr.P.C., a second complaint would still lie under exceptional circumstances.
In case of Poonam Chand Jain -Vrs.- Fazru, reported in 2010(1) Orissa Law Reviews (SC) 517 where the question cropped up for determination was whether after an order of dismissal of complaint attaining finality, the complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal, the Hon'ble Court relying upon the decision rendered in case of Pramatha Nath (supra) held that the second complaint was on almost identical facts which was raised in the first complaint and which was dismissed on merits. 9 So the second complaint was not maintainable. It was further held that nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint and no case was made out that even after the exercise of due diligence, the facts alleged in the second complaint were not within the knowledge of the first complainant.
In case of Shiv Shankar Singh -Vrs.- State of Bihar reported in 2012 (I) Crimes 16, it is held that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the Court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.
On going through the ratio laid down in the aforesaid decisions and looking at the earlier order passed by the learned S.D.J.M., Boudh dated 19.11.2004 passed in I.C.C. Case No. 35 of 2004, it is clear that the dismissal of the complaint petition 10 was not on merit. When the complainant filed a memo that he does not want to adduce/produce witnesses for inquiry, the memo was accepted and holding the case to be one of sessions trial, the complaint petition was dismissed. The learned Magistrate has not gone through the complaint petition or initial statement which was available with him at that stage to find out whether prima facie case is made out or not or whether there is sufficient ground for proceeding or not. When "all his witnesses"
appearing in the proviso to sub-section (2) of section 202 of Cr.P.C. has to be construed to mean "all witnesses which the complainant chooses to examine" and the complainant in this case choose not to adduce/produce any witnesses for inquiry, the Magistrate should not have dismissed the complaint petition on that ground holding it to be a sessions trial without scrutinizing the complaint petition and the initial statement of the complainant to see whether there is sufficient ground for proceeding or not. In such a contingency, when the second complaint petition was filed and the complainant examined herself and her initial statement was recorded and two witnesses were also examined on her behalf in the inquiry contemplated under section 202 Cr.P.C. and after going through the complaint petition, the initial statement and the statements of the 11 witnesses recorded under section 202 Cr.P.C., the learned Magistrate found prima facie case under sections 323/450/354/506(ii)/376 read with sections 511/34 of the Indian Penal Code and issued process against the petitioner, it cannot be said that the learned Magistrate has committed any illegality in passing the impugned order.
Therefore, I am not able to accept the contentions raised by the learned counsel for the petitioner and accordingly, this application under section 482 Cr.P.C. being devoid of merit stands dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 10th July, 2017/Kabita