Orissa High Court
Khageswar Sunani & Another vs State Of Orissa ...... Opp. Party on 3 March, 2012
Author: I.Mahanty
Bench: Indrajit Mahanty
THE HIGH COURT OF ORISSA : CUTTACK
CRLMC No. 169 of 2011
In the matter of an application under Section 482 of the Code of
Criminal Procedure, 1973.
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Khageswar Sunani & another ...... Petitioner
-Versus-
State of Orissa ...... Opp. Party
For Petitioners : M/s. J.N.Panda & J.B.Sahu
For Opp. Party : Mr.D.Panda, Addl.Govt.Adv.
PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of hearing: 09.02.2012 Date of judgment : 03.03.2012
I. Mahanty, J.The petitioners, namely, Khageswar Sunani and his wife Smt. Subasini Sunani (parents of one Lingaraj Sunani) have filed the petition under Section 482 Cr.P.C. with a prayer to quash the order dated 08.09.2010 passed by the learned S.D.J.M., Talcher in G.R. Case No.527 of 2007 arising out of Colliery P.S. Case No.152 of 2007 taking cognizance of the offences under Sections 498-A/304/34 I.P.C. and issue of process against them along with other accused persons. 2
2. Shorn of unnecessary detail the relevant facts of the present case is that one Suresh Chandra Pradhan (informant) lodged a written report on 22.7.2007 claiming therein that his daughter Sujata had died an unnatural death, on the basis of which Collieary P.S. Case No. 152 of 2007 was registered against the petitioners and others initially under Sections 364-A/302/34 I.P.C. The body of the deceased-Sujata was lying in the hospital and hence, the same was sent for post- mortem.
The doctor who conducted post-mortem on 23.7.2007 reserved his opinion as to the cause of death till receipt of the chemical examination report of the viscera which had been sent to the State Forensic Science Laboratory, Bhubaneswar.
It appears in the present case that the Investigating Officer examined various witnesses but without awaiting/collecting the viscera report and the opinion of the doctor who conducted post- mortem regarding the possible cause of death of deceased-Sujata, submitted Charge-sheet bearing No.166 on 10.8.2010 against the petitioners and others under Sections 498-A/306/34 I.P.C.
3. In the light of the circumstances noted hereinabove, the petitioners sought to assail the order of cognizance passed by the learned S.D.J.M., Talcher and issue of process before this Court under Section 482 Cr.P.C. In course of the present proceeding, this Court by 3 order dated 14.3.2011 directed the learned counsel for the State to obtain copy of the case diary as well as the viscera report. Pursuant to the aforesaid direction, the chemical examination report of the viscera from Forensic Laboratory, Bhubaneswar dated 23.3.2011 was produced by the learned Government Advocate and by Order dated 11.4.2011, further directions were issued to the Investigating Officer to produce such report before the Doctor who had conducted the post- mortem of the deceased-Sujata and seek his opinion as to the possible cause of death of the deceased-Sujata.
Dr. Nilamani of the Sub-Divisional Hospital, Talcher gave his report dated 15.4.2011 stating therein that, the cause of death of the deceased-Sujata was due to Acute Myocardial Infarction (Heart Attack).
4. Mr. J.N.Panda, learned counsel for the petitioner on the basis of the facts as noted hereinabove submitted that in view of the categorical opinion of the doctor relating to the cause of death of the deceased-Sujata, the order of cognizance for the offence under Section 306 I.P.C. was not sustainable and was liable to be quashed. He further submitted that as regards cognizance for the offence under Section 498-A I.P.C. is concerned, the deceased-Sujata had eloped with the son of the petitioners, namely, Lingaraj Sunani out of love, more than four years prior to her death. She had been admitted in the 4 Talcher hospital due to her heart ailment for her treatment. Therefore, there could be no foundation or basis for allegation of the offence under Section 498-A I.P.C. He vehemently urged that the present case is an illustration of the mechanical manner in which the Investigating Officers have submitted charge-sheet, even admittedly without awaiting the conclusion of the investigations. It is further urged that the present case also illustrates the manner in which the court taking cognizance had also acted mechanical by accepting the Charge-sheet submitted by the Investigating Officer, without even apparently verifying the police papers, as to the status of the investigation. It is submitted that had the trial court taking cognizance even bothered to look into the police papers, it would have been apparent therefrom that the charge-sheet have been submitted at the time when investigation into the alleged allegations had not been completed since the viscera report of the SFSL as well as opinion of the Doctor regarding post-mortem was awaited.
5. It is well settled that prior to quashing the order of cognizance, the power under Section 482 of the Criminal Procedure Code should be exercised very sparingly and that too in the rarest of rare cases. Such extraordinary or inherent powers ought to be exercised by the High Court in order to prevent the abuse of the process of the Court or otherwise and to secure the ends of justice. The present case is one of 5 such cases where the petitioner has prayed for exercise of such extraordinary and inherent powers, since he alleges gross abuse of the process of the Court thereby, praying for exercise of such inherent powers in order to secure the ends of justice.
6. In the light of the aforesaid submissions on behalf of the petitioner, it is a clear case where in order to further prevent the abuse of the process of the court and secure the ends of justice, not only the order of taking cognizance under Section 498-A and 306/34 I.P.C. should be quashed but also necessary directions to be further issued to the Investigating Officer as well as the trial court to ensure that such injustice is not meted out to future litigants and also to ensure that both the Investigating Officer as well as the trial court remain cognizant on their responsibility cast upon them by the Code of Criminal Procedure, to file charge-sheet only on conclusion of investigation and to take cognizance only after verifying the police papers.
7. On the request of the Court, Mr.D.Panda, learned Addl. Government Advocate for the State has filed a written note of submissions on behalf of the State. In course of hearing of the matter, this Court made a query to the learned counsel for the State as to whether in view of the fact that admittedly the chemical report of the State Forensic Science Laboratory had not been obtained in course of 6 the investigation and that the opinion of the doctor conducting post- mortem, as to the possible cause of death was also duly not been obtained by the Investigating Officer, by the time of submission of charge-sheet, what were the options available to the High Court in the matter vis-à-vis quashing the order of cognizance, so far as it relates to taking of cognizance under Section 306/34 I.P.C. is concerned or to remand the matter back to the trial court, for placing the said opinion of the doctor and for re-consideration of the order of cognizance by the court below before whom a supplementary charge-sheet, containing subsequent documents i.e. report of the Forensic Laboratory as well as the opinion of the doctor as to the cause of the death of the deceased- Sujata, can be filed by the Investigating Officer.
Learned Addl. Government Advocate in response to the aforesaid query made the following submissions:
"(A) In so far as the order of cognizance is concerned which is taken by a Magistrate U/s. 190 of the Cr.P.C. law is well settled that such an order is a final order not open to be reviewed. Under the Cr.P.C.
subordinate courts lack the power of review of their own orders and the Cr.P.C. specifically provides in Section
---- thereof that orders once passed by a criminal court are not liable to be reviewed save and except for correction of clerical mistakes and it is only the High Court which can in exercise of its inherent powers quash an order of a subordinate court which suffers from an infirmity rendering it to be illegal. The Supreme court in (1992) 1 SCC 217 (K.M.Matthew vs. state of Kerala) had held that it is open to an accused on entering appearance to contend that process should not have been issued to him and seek recall but later on in (2004) 7 7 SCC 338 (Adalat Prasad vs. Rooplal Jindal) held that the decision in Matthew's case supra was an erroneous interpretation of the law and held that a Magistrate has no power to either review, recall or reconsider his order issuing process. This court has also in a judgment reported in (D.K.Behera, 1982) held that on passing an order of cognizance a Magistrate become functus officio and has no power to either review, recall or reconsider order taking cognizance. In such view of the matter it is respectfully submitted that the question of remand therefore cannot arise.
(B) It is true that after submitting a final form U/s.173(2) Cr. P.C the investigating Agency is not precluded from submitting further reports U/s.173(8) Cr.P.C. if further facts arise/come to his notice after submission of final form. In that event , if charges have not been framed by the learned Trial Court it is open to the Trial court on consideration of such further report placed before it to take the same into consideration and frame charges accordingly. The court however cannot review/recall his earlier order taking cognizance on the basis of materials to which he has applied his judicial mind at that stage and has found no reason to differ with the opinion of the Investigating Officer as regards the nature of offences made out in course of investigation. Where offences triable exclusively by a court of Sessions are indicated in the charge sheet and if supplementary charge sheets are submitted after commitment and before cognizance is taken by the court of sessions then there is no difficulty for the court of sessions to take note of the materials forwarded with the supplementary charge sheet and while taking cognizance U/s.193 Cr.P.C. it can send the case records to the Chief Judicial Magistrate for proceeding further if the materials enclosed to the supplementary charge-sheet do not reveal a sessions triable offence. In a case such as the present case the only course available to the Magistrate is probably to act under section 322 (1) (a) Cr. P.C. and to submit the records to the learned Chief Judicial Magistrate for taking further action.
(C) In the Cr.P.C. Section-154 empowers a police officer to record a first information and to take up 8 investigation into cognizable offences by exercising powers vested in him by section-156 of the Cr.P.C. Section-173 of the Cr.P.C. requires every investigation to be completed without unnecessary delay and U/s.173(2) the Police Officer conducting investigation is required to forward to the Magistrate empowered to take cognizance the entire records of the investigation to which the Magistrate is required to apply his judicial mind and consider the question of taking cognizance. An order of cognizance is a judicial act which is performed after application of mind to the materials on record and it is open to the learned Magistrate to differ with the opinion of the I.O. and also to call for further reports or to take cognizance in exercise of powers u/s 190(1)(a) or (c) of the Cr.P.C. but he cannot call upon the police to submit a charge sheet (Abhinandan Jha & Ors vs. Dinesh Mishra , AIR 1968 SC 117). In the instant case since the medical opinion as to cause of death was not final and the Magistrate had sent the viscera for chemical examination it was his duty to direct the I.O. u/s 156(3) Cr.P.C. to make further investigation obtain the viscera report as well as final opinion of the doctor and to place the same before him which he has failed to do.
(D) Rules-172(a)(b) and (c) of the Orissa Police Manual Rules as well as Section-173 Cr.P.C. enjoin upon the I.O. to prepare copies of his report under Section 173(2) Cr.P.C. for being supplied to the accused persons and he is also required to intimate the results of the investigation to the informant. These statutory requirements are however never complied with leading to unavoidable delay in taking of criminal cases for disposal."
In the light of the aforesaid submissions, learned Addl. Government Advocate submitted that the facts of the present case would justify the exercise of inherent extraordinary jurisdiction under Section 482 Cr.P.C. for quashing of the order of cognizance for the offence under Sections 306/34 I.P.C.
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8. After having heard the learned counsel for the respective parties and after taking the note of submissions advanced as noted hereinabove, the facts that clearly emanate in the present case is that admittedly, at the time when charge-sheet was submitted i.e. on 10.08.2010, investigation into the complaint alleged could not be said to have been completed due to the following two reasons:
i) Viscera of the deceased-Sujata had been sent to the State Forensic Science Laboratory, Bhubaneswar for examination and report was awaited.
ii) The Doctor who had conducted post-mortem had reserved his opinion regarding cause of death till viscera report is obtained and such opinion was awaited.
Sub-section (1) of Section 173 Cr.P.C., 1973 clearly prescribes in no uncertain terms that every investigation shall be completed "without unnecessary delay" and in Sub-section (2) thereof, the officer in charge of the police station is required to forward to a Magistrate empowered to take cognizance of the offence on a police report in the form prescribed on conclusion of the investigation. Although no specific period of time has been stipulated in the court for completion of investigation, yet, it is required that investigation ought to be taken up expeditiously and police paper to be submitted only after "investigation is completed". In view of the facts noted 10 hereinabove, it is clear that since investigation had not been completed as on 10.08.2010, i.e. the date on which charge-sheet was submitted, no charge-sheet ought to have been submitted at that time.
9. Apart from the report of opinion of Dr.Nilamani Sahoo, Sub- Divisional Hospital, Talcher and after perusing the report of the Forensic Laboratory and viscera report of the deceased-Sujata dated 15.4.2011, the cause of death of deceased-Sujata has been declared to "Acute Myocardial Infarction" (Heart attack).
The bed head ticket of the deceased-Sujata had been seized by the police and forms part of the case diary. The said bed-head ticket was maintained by the Sub-Divisional Hospital, Talcher where the deceased-Sujata had been admitted by her father-in-law, Khageswar Sunani (Petitioner No.1) on 22.7.2007. At the time of admission of the deceased in the said hospital which is run by the Coal India, it is noted therein that she was suffering from convulsions after taking cough syrup and had been suffering from fever for the last 9 to 10 days and had been treated by Coal India Dispensary at Ananta Colliery. The bed-head ticket also indicates that the treating physician suspected that the deceased may not be sufferings from Cerebral Malaria but had started the treatment. It appears that after her admission, the treating Physician put a question mark before the word "Cerebral Malaria" as the possible cause of death. Ultimately, the 11 deceased suffered from cardiopulmonary arrest at about 11.30 A.M. of 22.7.2007 and in spite of several steps taken by the attending doctors, she was pronounced dead at about 11.30 A.M. on the self-same date. Thereafter, the bottle which has been produced by the father-in-law (Petitioner No.1) before the treating physician and said to have been consumed by the deceased before onset of convulsions, was also seized and the contents of the bottle suspected to be organophosphorus compound and suspected that the death could be due to organophosphorus poisoning and directed registration of medico legal case.
10. The father of the deceased-Sujata on being informed arrived at the hospital and suspecting death on account of torture of the in- laws, lodged an F.I.R. Based on such F.I.R., the body of the deceased- Sujata was sent for post-mortem examination and in course of which Viscera was collected and sent for examination to the State Forensic Science Laboratory, Bhubaneswar.
11. The facts of the present case to highlight the necessity of all concerned in the investigation/prosecution to take up their responsibility with due seriousness that such incident deserves. In the present case clearly a very serious allegation was made by the informant in the F.I.R. and death of deceased-Sujata had taken place and that too at a relatively young age. In such circumstances it was 12 incumbent upon the investigating authorities for completing the investigation at the earliest. But, the present case is a case which exhibits complete laxity by the Investigating Officers since no follow up action whatsoever has been made to obtain the Forensic Report/opinion of post-mortem Doctor although post-mortem of the deceased was conducted on the date of her death i.e. 22.7.2007 and viscera obtained on the same day and thereafter, send to the Forensic Laboratory for testing. It was only pursuant to the direction of this Court dated 14.3.2011 that the Forensic Laboratory ultimately examined the viscera and submitted its report on 23.3.2011 i.e. after a period of nearly four years after the death of the deceased. This unfortunately illustrates a complete sorry state of affairs and, therefore, ought to be seriously looked into and shortfall and/or inadequacy need to be addressed at the earliest.
12. Apart from the aforesaid facts, the facts of the present case indicate that when the Investigating Officer investigated into the case was transferred the successors, do not necessarily study the case diaries minutely and have acted mechanically to conclude the investigation, even though, several investigating steps were yet left to be concluded. In the present case, it appears that while the original Investigating Officer got transferred, his successor acted mechanically and merely to show that the investigation was completed, submitted 13 charge-sheet, without bothering to verify as to whether the opinion of the doctor had been obtained and/or as to whether the viscera report had been obtained from the State Forensic Science Laboratory.
13. I am of the considered view that the trial court also has failed to discharge their duty in the manner that is expected from them. The Court before whom the charge-sheet was placed on 10.8.2010, clearly acted in a mechanical manner and passed orders taking cognizance under Sections 498-A/306/34 I.P.C. without applying its judicial mind. I am of the considered view that the court taking cognizance is duty bound to peruse the police report as well as the police papers and only thereafter pass orders thereto. In the present case same has not been done. Clearly such action on the part of the judicial officer is not acceptable. All the judicial officers should be cognizant of his responsibilities and such omission on that part of the Investigating Officer should have certainly come to his notice and in such circumstances, the court could have directed the Investigating Officer to first obtain the viscera report as well as the opinion of the doctor who conducted the post-mortem, prior to submitting the charge sheet. Clearly such inadequacies on the part of court taking cognizance cannot also be condoned nor overlooked.
14. In the circumstances as noted hereinabove, I am of the considered view that the order of cognizance dated 8.9.2010 passed by 14 the learned S.D.J.M., Talcher in G.R. Case No.527 of 2007 taking cognizance under Sections 498-A/306/34 I.P.C is required to be quashed in order to secure the ends of justice since the same amounts to an abuse to the process of the court and this Court orders accordingly with the following directions:
a) While taking cognizance the learned Magistrate should be cautious and should thoroughly scrutinize police papers submitted before them and in the event they find that certain material points have been left out to direct the I.O. to comply therewith forthwith and defer taking of cognizance, if necessary.
b) The Magistrate must ensure while taking cognizance that the I.O. has acted in accordance with the provisions contained in Section-173(2)(ii).
c) The Magistrate must ensure that the I.O. has complied with the provisions contained in Section-173(7) Cr.P.C. as well as Rules, 172(a)(b) and (c) of the Orissa Police Manual Rules.
d) The Magistrate must ensure that the committal proceedings are not delayed unnecessarily.
In terms of the aforesaid directions, the CRLMC is allowed.
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I.Mahanty, J.
ORISSA HIGH COURT: CUTTACK 3rd March, 2012/RKS