Orissa High Court
Raghunath Das And Ors. vs State Of Orissa And Anr. on 2 May, 2003
Equivalent citations: 96(2003)CLT97, 2003CRILJ4274
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. This application under Section 482, Cr.P.C. has been filed challenging the order dated 9.2.2001 passed by the learned S.D.J.M., Bhadrak in G.R. Case No. 1276 of 1999 taking cognizance of offences under Sections 325 and 395 of the Penal Code in addition to offences under Sections 341, 232, 324, 427 and 34 of the Penal Code cognizance of which had been taken by order dated 10.6.2000.
2. The case of the petitioners before this Court is that on the basis of the information lodged by one Karunakar Das on 11.11.1999, investigation was taken up for offences punishable under Sections 324, 380, 364 and 34 of the Penal Code. The case of the prosecution is that on 10.11.1999 all the petitioners assaulted the family members of the informant, took away house-hold articles, kidnapped the sister and mother of the informant, respective wives of two other brothers and his son, namely, Rashmiranjan. On completion of investigation, charge-sheet was submitted for commission of offences under Sections 341, 323, 324, 427 and 34 of the Penal Code and the learned S.D.J.M. by his order dated 10.6.2000 took cognizance of the said offences. The further case as it appears from the impugned order is that on 17.11.2000 the informant filed an application alleging therein that the materials collected disclose commission of offence punishable under Section 395 of the Penal Code and despite availability of materials in respect of the said offence, charge-sheet has not been filed for the said offence and a prayer was made to take cognizance of the same. The said petition was entertained by the learned Magistrate and an inquiry under Section 202, Cr.P.C. was taken up. It is also alleged that on the basis of not only the materials collected during inquiry under Section 202, Cr.P.C. but also considering the materials collected during investigation by the police in the G.R. Case, the learned Magistrate passed the impugned order taking cognizance of offences under Sections 125 and 395 of the Penal Code in addition to other offences in respect of which cognizance had been taken on 10.6.2000.
3. Shri Nayak, the learned counsel appearing for the petitioners has challenged the order on two grounds.
(1) The protest petition filed should have been treated as an independent complaint and the inquiry under Section 202, Cr.P.C. should have been done in the said complaint. Instead, the learned Magistrate entertained the petition in the G.R. Case and also conducted inquiry under Section 202, Cr.P.C. in the G. R. Case.
(2) While dealing with the protest petition, the learned Magistrate could not have looked into the materials collected during investigation by the police in the G. R. Case and should have confined himself to the materials available during inquiry under Section 202, Cr.P.C.
4. Shri Dhal, the learned counsel appearing for the informant-opposite party No. 2 as well as the learned counsel for the state submitted that even on the basis of the materials collected during inquiry under Section 202, Cr.P.C. a prima facie case for commission of offences under Sections 325 and 395 of the Penal Code is clearly made out and, therefore, there was no illegality in the order of the learned Magistrate in taking cognizance of the said offences. The procedure adopted as submitted by Shri Dhal may be irregular, but the impugned order based on materials cannot be said to be illegal.
5. On perusal of the orders passed by the learned Magistrate in the said G. R. Case it appears that on the basis of submission of charge-sheet, on 10.6.2000 the learned Magistrate took cognizance of the offences punishable under Sections 341, 323, 324, 427 and 34 of the Penal Code. It further appears that on 17.11.2000 a petition was filed by the informant stating that the materials collected during investigation by the police also discloses commission of offence under Section 395 of the Penal Code and prayed before the court for taking cognizance of the said offence. Though the said petition which is in the nature of protest petition should have been registered as an independent complaint, the learned Magistrate entertained the said application in the G. R. Case itself and directed for inquiry under Section 202, Cr.P.C. From the impugned order dated 9.2.2001, it appears that the learned Magistrate not only on the basis of the materials collected during inquiry under Section 202, Cr.P.C but also considering the materials collected by the police during investigation in the G. R. Case formed an opinion that prima facie materials are available for taking cognizance of the offences under Sections 325 and 395 of the Penal Code. There is no dispute that the protest petition has to be treated as a complaint and inquiry under Section 202, Cr.P.C. can only be directed in the complaint. There was no scope of directing any inquiry under Section 202, Cr.P.C. in the G.R. Case, in view of the above settled position of law, there cannot be any doubt that the procedure adopted by the learned Magistrate was not available under the Code. I am, therefor, of the view that the procedure adopted by the learned Magistrate is irregular, but cannot be quashed as it does not affect the ultimate result of the case.
6. So far as the second point is concerned, the impugned order itself indicates that the learned Magistrate had not only taken into consideration the materials collected during inquiry under Section 202, Cr.P.C. but also referred to the FIR as well as other relevant police papers. Such a procedure adopted by the learned Magistrate, in my view, is not also legal. While considering the protest petition, the learned Magistrate is to confine himself to the materials collected during inquiry under Section 202, Cr.P.C. and cannot look into the police papers as has been held by this Court in the case of Udaya @ Uthan Singh and Ors. v. Kumalini Nayak and Anr., Criminal Misc. Case No. 1569 of 1996 disposed of on 19.4.2002.
7. In ordinary course, I would have set aside the impugned order and sent it back to the learned Magistrate for consideration of the matter afresh. Since the depositions of witnesses examined during inquiry under Section 202, Cr.P.C. have been placed before the court, I do riot think it proper to send it back to the learned Magistrate for consideration again which would amount to waste of court's time. P.W. 1 Rabindra Kumar Das in paragraph-5 of his deposition has stated that all the accused persons entered into his house and they physically assaulted his mother, wife, brother's wife and forcibly drove them out from the house. He has also stated that the accused persons took away his house-hold articles and valuables such as T.V., Radio. Gold and Silver ornaments, watch, suitcase, attachey, utensils etc. and damaged a two-wheeler as well as bi-cycle. P.W. 2 is the informant, who has also stated in paragraph-3 of his deposition about removal of house-hold articles by the accused persons. Similar is the evidence of P.Ws. 3, 4 and 5. Therefore, even if the court confine itself to the materials collected during inquiry under Section 202, Cr.P.C., the offences under Sections 325 and 395 of the Penal Code are clearly made out. In view of the above reason, I do not want to disturb the impugned order even though the learned Magistrate has taken into consideration the materials collected during investigation by the police since on examination of materials collected during inquiry under Section 202, Cr.P.C. also prima facie materials appear to be available to support offences under Sections 325 and 395 of the Penal Code.
In view of the above, I do not find any merit in the petition, and the same stands dismissed.