Orissa High Court
Ramesh Sethi And Others vs Kumari Babita Naik And Another on 2 May, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 37 OF 2005
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No. 07 of 2003
pending on the file of S.D.J.M., Bhanjanagar.
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Ramesh Sethi &
others ......... Petitioners
-Versus-
Kumari Babita Naik
& another ......... Opposite Parties
For Petitioner: - None
For Opp. Party no.1 - 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 & Order: 02.05.2017
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S. K. SAHOO, J.None appears for the petitioners. Notice which was issued to opp.party no.1- Kumari Babita Naik by registered post with A.D. returned undelivered with an endorsement "dead since long".
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Heard Mr. Chitta Ranjan Swain, learned Additional Standing Counsel for the State.
In this application under section 482 of Cr.P.C., the petitioners have challenged the impugned order dated 23.11.2004 passed by the learned S.D.J.M., Bhanjanagar in I.C.C. Case No. 07 of 2003 in rejecting the petition filed by the petitioners to recall the order dated 07.02.2009 passed by the said Court in taking cognizance of the offences under sections 323/294/34 of the Indian Penal Code read with Section 3(1)(x) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter '1989 Act') and issuance of process against them.
2. The prosecution case, as per the complaint petition is that the opp. party no.1-complainant was suffering from pain in her left eye since last three years and in order to get rid of such pain, believing upon Lord Shiva, on 20.01.2003 early morning after taking her bath, she laid herself down on the stairs in the temple of Lord Shiva. When the priest of the said temple came to offer Puja and called her, she did not respond strongly believing upon the Almighty. It is the further case of the opp. party no.1-complainant that after sometime, the petitioners along with others came there and abused the complainant in 3 filthy language and when the complainant did not stand up, all the petitioners dragged her from the stairs and assaulted her. The complainant raised hullah for which her parents along with others came there and seeing them, the petitioners left the spot.
3. On the basis of such complaint petition filed by the complainant, the initial statement of the complainant was recorded under section 200 of Cr.P.C. and inquiry contemplated under section 202 of Cr.P.C. was conducted, during course of which statements of some witnesses were recorded and after considering the materials available on record, the learned S.D.J.M., Bhanjanagar was of the opinion that there were sufficient materials to make out a prima facie case under sections 294/323/34 of the Indian Penal Code read with section 3(1)(x) of the 1989 Act and accordingly took cognizance of such offences and issued process against the petitioners.
4. On 15.11.2004 a petition was filed by the petitioners to recall the order of taking cognizance with respect to the offence under section 3(1)(x) of the 1989 Act on the ground that there was no material to attract the ingredients of such offence and all the witnesses had not been examined during inquiry as contemplated in a complaint case proceeding triable by a Court of Session and no documents had been produced to show that 4 the complainant is a member of Scheduled Caste or Scheduled Tribe. The opp.party no.1-complainant filed her objection to such petition filed by the petitioners. After perusing the recall petition as well as the objection filed by the complainant and other materials available on record, the learned Magistrate was of the view that the opp.party no.1-complainant stated that she is 'Pana' by caste and the complaint petition also indicates that the complainant is 'Pana' by caste residing at Harijan Sahi, Gayagauda. The learned Magistrate was further of the view that at that stage, it was not necessary for a detailed inquiry regarding the caste aspect and the complaint petition as well as the statement of the complainant is sufficient for such purpose. The learned Magistrate was of the view that all the witnesses are not required to be examined by the complainant in such case since it is not a sessions case and complainant cannot be compelled to examine all the witnesses named in the complaint petition against her will and desire even in a sessions case. Accordingly, the learned S.D.J.M. rejected the petition filed by the petitioners to recall the order of taking cognizance.
5. In case of Adalat Prasad -Vrs.- Rooplal Jindal & Ors. reported in (2004) 29 OCR (SC) 264, it has been held as follows:-
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"16. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review on an order. Hence, in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code."
Therefore, the petition dated 15.11.2004 which was filed by the petitioners before the learned S.D.J.M., Bhanjanagar for recalling the order of taking cognizance was not at all maintainable in the eye of law.
6. Since nobody appeared on behalf of the petitioners to argue the matter, on perusal of the grounds taken in the application under section 482 Cr.P.C., it appears that the main ground taken is that all the witnesses cited in the complaint petition were not examined before the learned Magistrate during the inquiry and since the case is triable by the learned Special 6 Judge which is also a Court of Session, the proviso to sub- section (2) of section 202 of the Cr.P.C. has been flouted.
The proviso of sub-section (2) of section 202 of Cr.P.C which deals with postponement of issue of process, comes under Chapter XV. When it appears to the Magistrate that the offence complained of is triable by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. While interpreting this proviso, a Division Bench of this Court in the case of Charan Rout -Vrs.- Prafulla Kumar Mangaraj reported in (1996) 11 Orissa Criminal Reports 322 held as follows:-
"8. The choice being that of the complainant, he may choose not to examine himself.
Consequences of such non-examination are to be considered by the Court during trial. Effect of non-examination of a particular witness is a matter which comes for scrutiny during trial. Similar would be the process in case of non- examination of complainant. But there is no statutory mandate for the Magistrate to direct complainant to examine himself. His duty ends by calling upon the complainant to produce all his witnesses. The question whom the complainant would choose to examine and effect of non-examination of any particular witness are 7 not dealt with in the proviso to sub-section (2) of section 202.
9. In our view, therefore, the Magistrate has no statutory obligation to call upon the complainant to examine himself as a witness. He is only required to call upon the complainant to produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. The expression "call upon'' means essentially "require", "direct". What is to be directed under the proviso is the production of all the witnesses, and their examination on oath."
In case of Shivjee Singh -Vrs.- Nagendra Tiwary reported in (2010) 46 Orissa Criminal Reports (SC) 798, it is held that the use of the word "shall" in proviso to section 202 (2) of Cr.P.C. is prima facie indicative of mandatory character of the provision contained therein, but a closer and critical analysis thereof along with other provisions contained in Chapter XV and sections 226 and 227 and section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issuance of process. The word "all" appearing in proviso to section 202 (2) is qualified by the word 8 "his". This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being that of the complainant, he may choose not to examine other witnesses. The consequence of such non-examination is to be considered at the trial and not at the stage of issuing process. It is further held that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to section 202(2) of Cr.P.C. is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint.
Thus, the complaint is not bound to examine himself during inquiry under section 202 of Cr.P.C. after recording of his initial statement under section 200 of Cr.P.C. The complainant is also not bound to examine all the witnesses named in the complaint petition even if it is a case triable by a Court of Session and he is at liberty to examine any of them and decline the rest by filing a memo. The Magistrate cannot compel the 9 complainant to examine himself or all or any of his witnesses. On the prayer of the complainant, the Magistrate has power to summon witnesses during inquiry. The provision is mandatory in the sense that only the witnesses whose statements are recorded either under section 200 of Cr.P.C. or 202 of Cr.P.C. shall be permitted to be examined before the Court of Session otherwise it would be a surprise to the accused and he will be seriously prejudiced during trial in the absence of any previous statements of such witnesses.
In case of Vidyadharan -Vrs.- State of Kerala (2004) 27 Orissa Criminal Reports (SC) 11 while dealing with 1989 Act, it has been held as follows:-
"12. Section 14 of the Act says that:
"for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act."
13. So, it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special 10 Court. Though the word 'trial' is not defined either in the Code or in the Act, it is clearly distinguishable from 'inquiry'. The word 'inquiry' is defined in section 2(g) of the Code as 'every inquiry, other than a trial, conducted under this Code by a Magistrate or Court'. So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as a Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14" (vide Section 2(1)(d)).
14. Thus, the Court of Session is specified to conduct a trial and no other Court can conduct the trial of offences under the Act. Why did Parliament provide that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be a Court of Session. Hence, the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code 11 which contains a fascicule of provisions for 'trial before a Court of Session".
Therefore, a case under section 3(1)(x) of 1989 Act is triable by a Special Court and the trial of such case has to be conducted in the manner provided in Chapter XVIII of the Cr.P.C. under the heading of the trial before a Court of Session. Merely because the complainant choose to examine some of his witnesses mentioned in the complaint petition but not all, it cannot be said that the proviso to sub-section (2) of section 202 of Cr.P.C. has been flouted and therefore, the order of taking cognizance is vitiated in the eye of law.
In view of such analysis, the grounds taken by the petitioners that impugned order is vitiated in the eye of law as all the witnesses cited in the complaint petition were not examined before the learned Magistrate during the inquiry, is not acceptable.
7. In the petition under section 482 of Cr.P.C. filed by the petitioners, another ground has been taken that there are no prima facie materials to attract the ingredients of the offence under section 3(1)(x) of the 1989 Act and therefore, the order of taking cognizance of such offence is not sustainable in the eye of law.
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Not only in the complaint petition, the complainant has mentioned her caste as 'Pana' and that she was residing at Harijan Sahi, Gayagauda but also she has stated in her evidence that she is 'Pana' by caste. As per section 3(1)(x) of the 1989 Act, whoever, not being a member of a scheduled caste or a scheduled tribe intentionally insults or intimidates with intent to humiliate a member of a scheduled caste or a scheduled tribe in any place within public view shall be punished with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
Thus there is prima facie material that the complainant-opp.party no.1 is a member of scheduled caste and the occurrence in question took place in a public place within public view which attracts the ingredients of the offence and therefore, no illegality has been committed by the learned Magistrate in taking cognizance of such offence.
Therefore, I find no fault with the impugned order passed by the learned Magistrate in rejecting the petition filed by the petitioners to recall the order of taking cognizance and issuance of process.
8. No doubt the notice has returned undelivered with an endorsement that opp.party no.1 is dead since long. The 13 complaint case is now to be committed to the Court of Session as per the provisions under sections 208 and 209 of Cr.P.C. in view of the decision of the Hon'ble Supreme Court in case of Gangula Ashok -Vrs.- State of A.P. reported in (2000) 18 Orissa Criminal Reports (SC) 364 and it is to be tried before a Special Court. The Special Public Prosecutor has to conduct the case.
In case of Ashwin Nanubhai Vyas -Vrs.-State of Maharashtra reported in AIR 1967 SC 983 where the question came up for determination was that when the offences under sections 493/496 of the Indian Penal Code which are exclusively triable by Court of Session, what would be the effect of the death of a complainant on an inquiry under Chapter XVIII in respect of offences requiring a complaint by the person aggrieved, after the complaint has been filed, it was held as follows:-
"6. Mr. Keswani, however, contends that section 198 provides that the cognizance of the case can only be taken on the complaint of a person aggrieved and the only exception to this general rule is where the complainant is a woman, who according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of 14 eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint. He contends that what applies to the initiation of the proceeding must also apply to the continuance of the proceeding. He submits that if cognizance could not be taken unless a complaint was made in the manner provided in the section, the court cannot proceed with the inquiry unless the same condition continues to exist. In other words, because the section insists on a complaint of a person aggrieved, Mr. Keswani contends that continued presence of the person aggrieved throughout the trial is also necessary to keep the court invested with its jurisdiction except in the circumstances mentioned in the proviso and summarised above. We do not agree. The section creates a bar which has to be removed before cognizance is taken. Once the bar is removed, because the proper person has filed a complaint, the section works itself out. If any other restriction was also there, the Code would have said so. Not having said so, one must treat the section as fulfilled and worked out. There is nothing in the Code or in Chapter XVIII which says what, if any, consequence would follow if the complainant remains absent at any subsequent hearing after filing the complaint. In this respect Chapter XVIII is distinctly dissimilar to the Chapters dealing with the trial of summons and warrant 15 cases where it is specifically provided what consequence follows on the absence of the complainant."
It was further held that there is no provision in the Cr.P.C. or Chapter XVIII thereof for acquittal or discharge of the accused on failure of the complainant to attend, which is a deliberate departure from Chapters on trial of summons and warrant case, suggesting to the Magistrate to proceed with the committal enquiry although the complainant is absent and accordingly held that the committal enquiry of the accused charged under Sections 493 and 496 of the Indian Penal Code did not abate on account of complainant's death after filing of complaint and that mother of the complainant could be allowed to conduct the prosecution.
In case of Shri Balasaheb K. Thackeray & Anr.
-Vrs.- Shri Venkat @ Babru & Anr. reported in (2006) 34 OCR (SC) 777 wherein the question was raised as to what is the effect of the death of the complainant in a complaint case, the Hon'ble Court relying upon the case of Ashwin Nanubhai Vyas (supra) and Jimmy Jahangir Madan -Vrs.- Bolly Cariyappa reported in 2004 (12) Supreme Court Cases 509 held that if any permission is sought for by the legal heirs of 16 the deceased complainant to continue prosecution, the same shall be considered in its proper perspective by the Court.
In case of Rashida Kamaluddin Syed -Vrs.-
Shaikh Saheblal Mardan reported in (2007) 37 Orissa Criminal Reports (SC) 368, it was held that on the death of the complainant Shaikh Saheblal Mardan, the case did not abate. It was, therefore, open to the sons of the complainant to apply for continuation of proceedings against accused persons. It was held that by granting such prayer, no illegality has been committed by the Court.
In the last two cases, the provision under section 302 of Cr.P.C. was considered which deals with the permission to conduct the prosecution before a Magistrate.
So far as the Court of Session is concerned, section 301 of Cr.P.C. is very relevant which reads as follows:-
"301. Appearance by Public Prosecutors.- (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.
(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant 17 Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case."
There is an ocean of difference in the two provisions i.e. sections 301 and 302 of Cr.P.C. The difference is that in the case of a pleader acting on instruction of a private person in assisting the Public Prosecutor or Assistant Public Prosecutor conducting the prosecution, his role is limited as provided under section 301 of Cr.P.C. whereas under section 302 of the Cr.P.C., the pleader acting on the instruction of the informant or an aggrieved party can himself conduct the prosecution before the Magistrate on the basis of permission granted by such Magistrate. If a private person is aggrieved by the offence committed against him or against any one in whom he is interested, he can approach the Magistrate and seek permission to conduct the prosecution by himself or by a pleader. It is open to the Magistrate to consider his request. If the Magistrate thinks that the cause of justice would be best served by granting such permission, he can grant such permission. The private person who is permitted to conduct prosecution in the Magistrate's 18 Court can engage a counsel to do the needful in the Court on his behalf. However, in view of section 301 of the Cr.P.C., the rights of the complainant are only subordinate to the rights of the State and it is for this reason that when the Public Prosecutor conducts the case, a complainant or his counsel has no right of audience. A counsel instructed by a private person cannot conduct the prosecution in the trial before a Court of Session. Private counsel appointed by the complainant can only assist the Public Prosecutor in prosecuting the case. He cannot argue the case on behalf of the Public Prosecutor. He has to work under the directions of the Public Prosecutor but he cannot cross-examine the witness. Of course, he can submit written argument with the permission of the Court. Therefore, section 301 of Cr.P.C. limits the role of a counsel engaged by any private party to act in the Court of Session during the prosecution "under the directions of the Public Prosecutor or Assistant Public Prosecutor".
Therefore, even though in this case, the complainant-opposite party no.1 is dead as per the report of the postal authority but since the case is triable by the Special Court where the procedure relating to trial before a Court of Session as laid down under Chapter XVIII of Cr.P.C. has to be followed after commitment, neither the complaint petition can be dismissed nor 19 the accused persons can be acquitted on the ground of death of the complainant. The legal heirs of the complainant, if so advised are at liberty to engage a counsel before the Special Court who shall act as provided under section 301 of Cr.P.C.
In view of the above discussion, I find no infirmity or illegality in the impugned order and accordingly, the CRLMC application stands dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 2nd May, 2017/Kabita