Orissa High Court
Surya Narayana Ratha And Another vs State Of Orissa .... Opposite Party on 2 February, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1273 of 2022
Surya Narayana Ratha and Another .... Petitioners
Mr. Arijeet Mishra, Advocate
-Versus-
State of Orissa .... Opposite Party
Mr. T.K. Praharaj, SC
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
03.02.2023 Order No.
01. 1. Heard learned counsel for the respective parties.
2. Instant petition under Section 482 Cr.P.C. is filed by the petitioners challenging the correctness of the impugned order of cognizance dated 8th June, 2021 passed by the learned Additional Sessions Judge-cum-Special Court under POCSO Act, Angul in Special (POCSO) Case No.37 of 2021 arising out of Athamallik P.S. Case No.70 of 2021 under Annexure-4 on the grounds stated therein.
3. Perused the copy of the FIR as at Annexure-1. Annexure-2 is the copy of a counter FIR.
4. Mr. Mishra, learned counsel for the petitioners submits that on the lodging of Annexure-1, Athamallik P.S. Case No.70 of 2021 was registered under Section 294, 341, 323, 506, 354-D, 34 IPC and Section 12 of the Protection of Children from Sexual Offence Act, 2012 and finally the petitioners have been chargesheeted for the said offences. It is further submitted that the offence under Section 354-D IPC is not prima face made out even by considering the FIR i.e. Annexure-1. It is claimed that the offence under Section 354-D is inconsistent with Section 12 of the POCSO Act and such offence Page 1 of 3 should have been Section 354-B and to that extent, the impugned order under Annexure-4 is bad in law and liable to be set aside.
5. Mr.Praharaj, learned counsel for the State on the other hand submits that the petitioners shall have the liberty to claim for discharge for the offence under Section 354-D IPC and therefore, the impugned order under Annexure-4 should not be interfered with at this point of time.
6. Gone through the contents of Annexure-1. Whether, the petitioners are alleged of having committed any such offence shall have to be examined by the learned court below during enquiry and thereafter, in course of trial, if they are not discharged. It is contended that no offence under Section 354-D IPC is made out from Annexure-1 so also the chargesheet i.e. Annexre-3. Whether it is a case of stalking punishable under Section 354-D IPC or otherwise or an offence under Section 354-B IPC plain and simple is a matter which may be considered by the court below during and in course of enquiry. In other words, the Court is of the view the petitioners are having the liberty to raise such a ground at the time of framing of charge. In any case, such offence either under Section 354-B or 354-D IPC as the case may be or Section 12 of the POCSO Act would not be applicable to petitioner No.2, who is a lady. So to say, the Court is of the conclusion that the petitioner No.1 shall have the liberty to raise such a ground seeking discharge of the offence under Section 354-D IPC in course of enquiry. Thus, according to the Court, with such observation, the CRLMC should be disposed of.
7. Accordingly, it is ordered.
8. In the result, the CRLMC stands disposed of with a liberty granted to the petitioner No.1 to raise such ground during enquiry and if an application is so moved in that regard, learned Special Page 2 of 3 Court shall consider the same and pass appropriate order as per and in accordance with law.
9. Issue urgent certified copy of this order as per rules.
(R.K. Pattanaik) Judge U.K.Sahoo Page 3 of 3