Orissa High Court
Arati Majhi vs State Of Odisha on 24 April, 2014
Author: S.K.Mishra
Bench: S.K.Mishra
HIGH COURT OF ORISSA ; CUTTACK
CRLREV NO.638 OF 2011
From an order dated 13.6.2011 passed by learned J.M.F.C.,
R.Udayagiri in M.C. No.15/2010.
___________
Arati Majhi
... Petitioner
Versus
State of Odisha ... Opposite Party
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For petitioner : M/s. Manoj Kumar Mishra
For opposite party : Standing Counsel
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PRESENT:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
Date of judgment: 24.04.2014
S.K.Mishra,J. In this revision the petitioner assails the order dated
13.6.2011passed by learned J.M.F.C., R.Udayagiri in M.C. No.15/2010 dropping the petition filed by her father, Dakasa Majhi, under Section 176(1-A) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code" for brevity).
22. The petitioner happens to be the alleged victim (name withheld). The father of the petitioner in his petition under Section 176(1-A) of the Code alleged that on 12.2.2010 at about 4 A.M. in the night while Special Operation Group and Central Reserve Police Force were conducting anti naxalite search operation in village Judingi, the villagers were assaulted and his daughter (the victim) and his nephew were taken into custody by the Central Reserve Police Force. The father of the petitioner alleges in his petition that the victim and Lazar Majhi were assaulted and taken to some unknown destination. It is further alleged that he came to know that his daughter and Lazar Majhi were taken to Police Camp at Parlakhemundi where they were tortured by the Central Reserve Police Force and his daughter was gang raped and they were sent to judicial custody at R.Udayagiri Sub-Jail. The father of the petitioner alleged that the face of his daughter and Lazar Majhi were covered with black cloth while production before the Magistrate and were not allowed to vent their grievances before the Magistrate. He further alleged that he met his daughter in R.Udayagiri Sub-Jail in the month of March where she stated about the gang rape committed upon her by three C.R.P.F. police personnel in the Camp at Parlakhemundi. The father of the petitioner further alleged that he met his daughter at R.Udayagiri Sub-Jail five times where his daughter narrated about the gang rape by the C.R.P.F. jawans. He further alleged that he made representation to the authorities alleging about the rape committed by the C.R.P.F. jawans on her daughter that went in vain. He alleged that his daughter was in custody in connection with five cases, i.e. G.R. Case Nos.128/2009, 160/2009, 261/2009, 263/2009 and 264/2009 and was an under trial prisoner at Sub-Jail, R.Udayagiri. Thus, alleging about the gang rape upon his daughter, he prayed for 3 inquiry regarding the same as a custodial rape in his application under Section 176(1-A) of the Code.
3. After submission of the petition for enquiry, the learned Magistrate allowed the petitioner's father to be examined as a witness. The victim and other witnesses were also examined on behalf of the petitioner. The witnesses like the Officer, who arrested her, and a lady constable, who escorted her to the court, were also examined by the Court. Having taken into consideration the facts of the case, the learned Magistrate held that a case of custodial rape is not made out. Therefore, he held that there is no need to proceed with the enquiry and hence the same was dropped. It is borne out from the record that the followings were taken into consideration by the learned Magistrate:-
(i) The petitioner's father in his petition under Section 176(1-A) of the Code has alleged that three Central Reserve Police Force personnel gang raped his daughter where as the victim herself in her statement deposed that five personnel committed rape upon her.
(ii) It is held by the learned Magistrate that the complainant-Dakasa Majhi in his petition alleged that his daughter was taken to the police camp at Parlakhemundi and was tortured. There at the Camp the C.R.P.F. personnel committed rape. However, the victim herself in her statement recorded in Court deposed that while bringing her after her arrest, police personnel gang raped her on the way near a jungle after covering her face with a black cloth and thereafter she was brought to Parlakhemundi.4
(iii) It is taken into consideration by the learned J.M.F.C. that the victim was produced before the Magistrate in connection with the case in which she was arrested and that she made no complaint before the Magistrate at that time.
(iv) Learned J.M.F.C. has come to the conclusion that there is delay of about six months in filing an application for inquiry by the petitioner and there is no explanation forthcoming from the side of the petitioner to come to a conclusion that the petitioner was prevented from lodging the complaint earlier by good and reasonable grounds.
(v) It is seen that there is no medical examination of the victims girl and examination after six months from the alleged incident will not serve any purpose to improve the case of the petitioner.
4. Keeping in view the aforesaid considerations, the learned Magistrate has held that there is no need to proceed with the inquiry into the alleged rape committed by the police personnel.
5. Section 176 of the Code provides for inquiry by the Magistrate into cause of death. By virtue of amendment inserted by the Code of Criminal Procedure Cr.P.C. (Amendment) Act 25 of 2005, which came into force on 23.6.2006, the custodial rape has also been inserted in the gamut of this provision. It provides that when the case of this nature referred to in Clause (i) or Clause (ii) of sub-section (3) of Section 174, the nearest Magistrate 5 empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding any inquiry into an offence. By virtue of the aforesaid amendment, sub-section (1-A) has been introduced, which provides that any person dies or disappears or rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorized by the Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the Police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.
6. Plain reading of the aforesaid provision reveals that this is an additional power of inquiry given to the Judicial Magistrate of competent jurisdiction to enquire into the matters of custodial death and rape. This is not subplanting investigation as understood in the traditional sense, rather it is an additional, provision to come to the conclusion that the custodial death or rape has been committed. If the Magistrate comes to the conclusion that actually such an offence has been committed, the Magistrate has power to enquire into the same and he shall have all powers for holding inquiry into the matter. Thus, the Magistrate can take cognizance of an offence if he finds a prima facie case of custodial death or custodial rape.
7. In this case, the learned Magistrate has very carefully examined the materials available on record and has come to the conclusion that a case of prima facie custodial rape has not been 6 made out by the petitioner. Learned counsel for the petitioner very emphatically submitted that the order passed by the learned Magistrate is an acquittal order and the same is not conceivable in an inquiry under Section 176(1-A) of the Code. This Court, however, come to the conclusion that a Magistrate having competent jurisdiction can shift the materials available before him and can come to the conclusion that where there has been a custodial death or custodial rape and in doing so he shall see that no vexatious and false complaint are made against the authorities. In this case, this Court does not find any perversity appreciation of materials available on record. The order passed by the learned J.M.F.C. is reasoned and logical one and he has come to a logical conclusion. It does not appear from the record that there has been any illegality or irregularity in the proceedings. It is well settled principle of law that the scope of a revisional court is limited. It is to see if any illegality has been committed by the learned Magistrate, it is not necessary to re-appreciate the evidence led before the Magistrate.
8. In that view of the matter, this Court comes to the conclusion that there is hardly any scope for interfering with the findings recorded by the learned J.M.F.C. and this Court refrains its hand from interfering with the same.
9. With such observation, the CRLREV is dismissed being devoid of any merit.
Sd/-
S.K.Mishra, J True Copy Orissa High Court, Cuttack Dated 24th. April, 2014/A.K. Behera. Secretary