Orissa High Court
Vineet Chhatwal vs State Of Orissa And Another ....... ... on 16 July, 2024
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4141 of 2022
(In the matter of an application under Section 482 of the Criminal
Procedure Code, 1973)
Vineet Chhatwal ....... Petitioner
-Versus-
State of Orissa and another ....... Opposite Parties
For the Petitioner : Mr. Ajit Kumar Singh, Advocate
For the Opp. Parties : Mr. B.K. Ragada,
Additional Government Advocate
Mr. Samir Kumar Mishra, Senior Advocate
(for O.P.2)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 25.04.2024 :: Date of Judgment: 16.07.2024
S.S. Mishra, J.
1. By invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C., the petitioner in the present petition is seeking quashing of the order dated 13.09.2022 passed by the learned S.D.J.M., Paralakhemundi in 1.C.C. Case No.17 of 2022, whereby the learned Court below has taken cognizance of offences under Sections 408/465/468/469/471/201 of I.P.C. read with Sections 66(C)/66(D)/72 of the I.T. Act against him on the complaint/protest petition filed by opposite party No.2.
2. The prime contention of the petitioner in attacking the cognizance order as mentioned above and the consequential proceeding arising therefrom are that on the selfsame allegations, an F.I.R. has already been registered at Jatni Police Station being Jatni P.S. Case No.0017 of 2021. After investigation, charge-sheet has already been filed in that case, wherein the present petitioner has been cited as a witness. On the selfsame allegations, another F.I.R. has been registered on 14.04.2021 at Gurandi Police Station being Gurandi P.S. Case No.0024 of 2021 only to harass the petitioner. The police investigated into the alleged offences in the second F.I.R. and filed a closure report inter alia stating that <there is already a case been filed in Jatni police station and parallel investigation of multiple cases on the same cause of action is not maintainable in the eye of law.= Page 2 of 23 After the closure report was filed by the Investigating Agency, the opposite party No.2 being dissatisfied filed a protest petition and led evidence under Section 200 Cr.P.C. The learned Trial Court has taken cognizance of the offences in the said protest petition vide the impugned order. Therefore, the petitioner contends that the F.I.R. has already been registered and investigated by the Jatni Police, wherein the petitioner has been arrayed as a witness and on the selfsame allegation and alleged transactions the protest petition has been filed implicating the petitioner as accused despite the police filed a closer report after thorough investigation. The intention of the opposite party No.2 to file second F.I.R. in a remote place is only with a motivated design to harass the petitioner.
3. Substratum of allegation in the protest petition reads as under:-
<On 19th Dec 2020 it came to light that Mr. Himanshu Kabi had done a misappropriation of money amounting to Rs.87 lakhs. Citing this, Prof. D. N. Rao, sent a mail on 20th December, 2020 instructing Mr. Vineet Chhatwal to seek explanation from Mr. Himanshu Kabi on this matter, and in the reply mail dated 19th Dec 2020, Mr. Kabi had accepted the same. On 20th Dec 2020 Prof. D.N Rao instructed Mr. Vineet Chhatwal, through mail, to immediately suspend the CFO for which Mr. Vineet Chhatwal replied as done. The official mail ID of TFO was also immediately suspended on Page 3 of 23 20th Dec 2020 by the System Administrator of the university. However, it was later found by the Vice President, on the contrary that Mr. Vineet Chhatwal had neither suspended the CFO nor had he taken any action against him. Mr. Vineet Chhatwal had also again instructed the System Administrator to restore the ID and give it back to the CFO. This mail ID was with Mr. Kabi till 30th Dec 2020. In the meantime Mr. Vineet Chhatwal also entrusted Mr. Kabi with the task of working on GST settlement. This gave Mr. Kabi enough time to take out/delete all important data from his official mail ID. Mr. Kabi also took certain steps to settle GST matter which led the university to fall into a bribery trap case which brought down the image and the goodwill of the university. All these days Mr. Kabi was reporting to Mr. Vineet Chhatwal. This attracts 212 IPC which points at harbouring the offender, which Mr. Vineet Chhatwal has done in this case. Prime facie of this case shows by not acting as the instruction of the Vice President- cum-Trustee of the University, Mr. Vineet Chhatwal had committed criminal breach of trust which attracts 405 IPC. Mr. Vineet Chhatwal has done grave misconducts of not responding to the directions of the authorities, and had done disobedience and insubordination, negligence or failure to perform duty and being a party to allow misappropriation of funds and helping the culprits to escape.
Further, Mr. Kabi was terminated from his services and was asked to handover the office laptop and the data related to university to the newly appointed Comptroller of Finance (in-charge), Mr. Debasis Panda. He sent a mall refusing to do so. Hence, the data and the laptop is still with him. An FIR has already been filed against Mr. Kabi under Jatni PS, DR.No.-159 dated 08.01.2021 (FIR No. 0017).
While all this while Mr. Vineet was assuring the founder trustees that he is taking action against the CFO, Mr. Kabi, he kept on engaging with him, giving him access to official records and actively aided him in destroying crucial evidence. Mr. Vineet, however was not present and proceeded to Dubai on 24th December, 2020. This calls for vicarious liability on the part of Mr. Vineet.Page 4 of 23
Further, Mr. Chhatwal had been the CEO till 11 Feb 2021. In the meantime, in the GST bribery case he was called upon by CBI for investigation. The Trustees of the university had asked him return back from to office just after the CBI Investigation started on the GST bribery case in early January 2021. He had shown his inability to come to the university as he had taken Covid 19 vaccination till end of Jan 2021. It was later noticed that he has given statements to CBI on 9th Feb 2021 & IIC Jatni on 10th Feb 2021 in connection with the university without any consultation of & documents of the university. He has shown scant respect for the due processes of the University and reneged on his own commitment to return to the University after returning from Dubai to settle all outstanding issues. Further, Mr. Chhatwal was terminated via e-mall dated 12th Feb 2021 and was asked to handover the charge and details. But, though he was heading the administration as CEO, Mr. Vineet replied that he had not got any data or files or details to handover to the university.
It has also come to the notice of the University that the accused persons Mr. Vineet and Mr. Kabi colluded to defame the university by recording false evidence and going on TV on 14th Feb, 2021. Mr. Kabi used the data collected by him (which was allowed by the CEO Mr. Chhatwal) during the course of his duties, for this purpose. This amounts to breach of trust as well as theft of data which will attract punishment under Section 66 of the IT Act, 2000.=
4. To substantiate the allegations made in the protest petition, the opposite party No.2 examined three witnesses. The complainant himself filed a detailed affidavit by way of evidence dated 20.07.2022 and exhibited the said affidavit by appearing and deposing before the Court. Similarly, one Mr. Nrusingha Das was also examined as witness No.2. He Page 5 of 23 too filed evidence by way of affidavit dated 16.08.2022 and exhibited the same in the Court on 07.09.2022. Similarly, Mr. Suri Venkata Ramana was also examined as witness No.3. He had filed an affidavit by way of evidence on 16.08.2022 and appeared before the Court on 07.09.2022 to affirm and exhibit the affidavit. Apart from the detailed narration of the sequence of events and the allegations against the petitioner, these witnesses appearing in the Court had made specific allegation against the petitioner, outline of which inter alia reads as under:-
<1. I know the complainant of this case Durga Prasad Padhi. I know the accused person Vineeth Chatwal.
2. The Board Member of Centurion University appointed the accused as Chief Executive Officer (CEO) for raising investments, strengthen admissions, finance, placement and other administrative development in the month of May, 2019.
He joined in the month of August, 2019. After his appointment he himself appointed one Himanshu Kabi as Chief Finance Officer, CFO and his appointment they both were dealing with all the administrative work including the finances of the University. I also directed to report CEO for every financial matter of the university. Thereafter, CEO and CFO made several financial transaction of the university during Covid Period. In December, 2020 the University found out that CFO was doing misappropriate of the funds of the university and accordingly a direction was issued to the CEO for suspension of mail ID of CFO as well as of his removal. But instead of that the CEO not only activate the mail of CFO but also help the CFO for committing further misappropriation of the funds as well as for sharing the data with other investors. When another notice was issued to CEO Page 6 of 23 with regard to supplying of data in reply he submits that he got no data with him and delete all the datas. For the misappropriation of the funds as well as for sharing the confidential data a case has been registered against CFO at Jatni PS also with the ground for return back the official laptop. One case was also registered by the complainant in this regard before Paralakhemundi PS against CEO and CFO.= All the witnesses besides the complainant have broadly made same statements before the summoning court in the enquiry under section 202 Cr.P.C.
5. The learned S.D.J.M., Paralakhemundi by taking into consideration the allegations made in the protest petition and the depositions of three witnesses including the informant in their pre-summoning evidences has taken cognizance of the alleged offences against the petitioner. Therefore, the petitioner is aggrieved by the said cognizance order and challenged the same in this petition.
6. Heard Mr. Ajit Kumar Singh, learned counsel for the petitioner, Mr. B. K. Ragada, learned Additional Government Advocate for the State and Mr. Samir Kumar Mishra, learned Senior Counsel for the opposite party No.2.
Page 7 of 23
7. Mr. Singh, learned counsel for the petitioner submits that in the present case, on the same set of incidents and also connected with the same set of transactions, two FIRs have been registered. In the first F.I.R. dated 08.01.2021 registered at Jatni Police Station on the written report of Chitta Ranjan Pattnaik, Sr. Manager, HR & Admin, Centurion University, the petitioner has been cited as a witness. In the second F.I.R. dated 14.04.2021 registered at Gurandi Police Station on the written report of Dr. Durga Prasad Padhi, Deputy Registrar, Centurion University after thorough investigation, closure report was filed. However, the opposite party No.2 filed a criminal complaint under Section 200 Cr.P.C. as a protest petition against the police report before the learned S.D.J.M., Paralakhemundi reiterating same allegations as was made in the earlier two F.I.Rs relating to the same set of incidents and transactions. The learned S.D.J.M., Paralakhemundi ignored the closure report, which expressly stated that there is already a case filed in Jatni Police Station and parallel investigation of multiple cases on the same cause of action is not maintainable in the eye of law. The learned Court below ought not to have ignored this material evidence already collected and placed on Page 8 of 23 record in the charge sheet of the first F.I.R. Further, the learned Court below should not have ignored the law applicable thereto i.e. there cannot be a second F.I.R. on the same set of incidents/transactions or connected set of incidents/transactions.
8. To substantiate the aforementioned submission, Mr. Singh, learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. and another vrs. Special Judicial Magistrate and others reported in (1998) 5 SCC 749. He has also relied upon another judgment in the case of Mehmood U1-Rehman vrs. Khazir Mohammad Tunda and other reported in 2015 (12) SCC
420. In Pepsi Foods (supra), it is held that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made Page 9 of 23 in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed to bring home the charge. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
9. The Hon'ble Supreme Court in the case of Mehmood (supra) has held that the Magistrate needs to apply judicial mind, while issuing summon to call on to an accused for facing criminal trial. It has held that in other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of routine. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation Page 10 of 23 under Section 202 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 Cr.P.C., the High Court under Section 482 Cr.P.C. is bound to invoke its plannery power so as to prevent abuse of the process of law. To be called to appear before the criminal court as an accused is a serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made as a weapon of harassment.
10. Mr. Singh, learned counsel for the petitioner highlighted the nature of the complaint filed before the Magistrate under Section 200 Cr.P.C., in form of a protest petition. Essentially the complaint/protest petition reflects the complainant's dissatisfaction with the police investigation. However, it is surprising that the learned Magistrate completely overlooked the fact that in the second F.I.R. No.0024 dated 14.04.2021 at Gurundi Police Station, there are two accused, with the petitioner Page 11 of 23 allegedly aiding and assisting A-2, (Himanshu Shekhar Kabi), in the diversion of funds through forgery of the document etc. Strikingly, in the protest petition, only the names of the petitioner as an accused found mentioned, this discrepancy that not only deviates from the original police complaint but also poses a logical challenge as to how the offence could have been committed solely by the petitioner in absence of Himanshu Shekhar Kabi. This oversight demonstrates a clear non- application of mind by the cognizance taking Court.
11. Mr. Singh, further relied upon the judgment of the Hon'ble Supreme Court in the case of Tarak Dash Mukharjee and others vrs. State of Uttar Pradesh and others reported in 2022 SCC OnLine SC 2021 and submitted that facts of this case matches with the facts of the cited judgment. Paragraphs-11, 12 & 13 of the said judgment have been cited, which reads as under:-
<11. We have perused both the FIRs. The respondent no.4 is the first informant in both the FIRs and the same are based on the same agreement for sale executed on 14th June 2006. The allegation made in both the FIRs is the same. The allegation is that by practising forgery and fraud, the appellant no.1 has sold the subject property to appellant no.2 thereby deceiving the respondent no.4. The second FIR, which Page 12 of 23 is the subject matter of challenge, was registered nearly four years after the first FIR was registered. The challenge to the first FIR is pending before the High Court. These aspects have been completely overlooked by the High Court in the impugned judgment.
12. If multiple First Information Reports by the same person against the same accused are permitted to be registered in respect of the same set of facts and allegations, it will result in the accused getting entangled in multiple criminal proceedings for the same alleged offence. Therefore, the registration of such multiple FIRs is nothing but abuse of the process of law. Moreover, the act of the registration of such successive FIRs on the same set of facts and allegations at the instance of the same informant will not stand the scrutiny of Articles 21 and 22 of the Constitution of India. The settled legal position on this behalf has been completely ignored by the High Court.
13. Accordingly, the appeal must succeed. The FIR No.0177 of 2019 registered at Bhelupur Police Station in District Varanasi, charge-sheet dated 12th July 2019 on the basis of the said FIR and the summoning order dated 12th July 2019 passed by the Court of ACJM, Varanasi in Criminal Case No.480 of 2019 are thereby quashed and set aside. No order as to costs.= In essence, the contention of Mr. Singh is that this Court inheres the power to interdict the proceeding at the threshold stage on the broad principle that the proceeding is instituted being the manifestation of malafide attempt with an ulterior motive for wreaking vengeance on the petitioner. Prima facie triable offence is not disclosed which would warrant subjecting the petitioner to suffer the agony of often protracted legal proceeding. A Page 13 of 23 prosecution which is bound to become lame or a sham ought to be interdicted in the interest of justice lest the continuance thereof will amount to an abuse of process of law.
12. Per Contra, Mr. S.K. Mishra, learned Senior Counsel for the opposite party No.2 has argued that if the submission of the petitioner is taken into consideration at this stage, this Court has to conduct some sort of mini trial to ascertain the fact as to whether the transaction related to the earlier F.I.R. registered in Jatni P.S. has anything to do with the transaction alleged in the present case or not. He further submitted that the judgment cited by Mr. Singh, learned counsel for the petitioner has no bearing on the facts of the present case, because in both the F.I.Rs. the act complaint of are pertaining to distinct transactions.
13. Mr. Ragada, learned Additional Government Advocate for the State by concurring with the submission made by Mr. Mishra, learned Senior Counsel for opposite party No.2 submits that the cognizance taking Court needs to be satisfied as to whether prima facie case is made out on the basis of material available on record. In the instant case, since the complaint/protest petition contains specific allegation against the Page 14 of 23 petitioner and the said allegations are being reiterated in the evidence of the witnesses, the Court below had no other option rather to take cognizance of offences. Probative value of that evidence borne on record in the enquiry under section 202 Cr.P.C could only be tested in the trial.
14. I have heard the learned counsel for the parties at length and have also perused the material available on record. The judgments cited by the petitioner are also being analyzed vis-à-vis the facts of the present case.
15. Mr. Singh, learned counsel for the petitioner to begin with cited couple of judgments to persuade this Court to give indulgence in this matter under the inherent jurisdiction of this Court. There is no quarrel on the legal proposition that the inherent jurisdiction of the High Court under section 482 Cr.P.C is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into the weapon of harassment. If the Court is satisfied that the criminal proceeding amounts to abuse of process of law, it must exercise the inherent power and scuttle the prolonged rigors of trial at the threshold.
16. I agree with Mr. Singh, learned counsel for the petitioner that registration of the second F.I.R. based on the same set of facts and related Page 15 of 23 to the same series of transaction is nothing but abuse of process of law. However, grains has to be separated from chaff to accept the contention that the transaction/incident indeed are same or germinating from the same series of transaction/incident which has been the subject matter of the first F.I.R. registered at Jatni P.S. Case No.0017 of 2021 needs to be gone into at the appropriate stage. There is a distinction between the same transaction/incident and similar transaction/incident. For the same transaction/incident no doubt second F.I.R. or repeated F.I.R. cannot be registered but for the similar incident/transaction, there could be more than one F.I.R., the Investigating Agency has to investigate the case so as to ascertain as to whether the incidents are similar or same. In the instant case, the Investigating Agency in the second F.I.R. i.e. Gurandi P.S. Case No.0024 of 2021 has although filed a closure report inter alia stating that the transaction/incident is arising out of the same cause of action, however, in the protest petition, the opposite party No.2 has made very specific allegation against the petitioner making out a similar case to that of the first F.I.R. and the said allegations are substantiated through enquiry by Magistrate by recording the statement under Section 202 Page 16 of 23 Cr.P.C. There are overlapping facts which has been pointed out by Mr. Singh, learned counsel for the petitioner. Those ambivalence facts which are complicated and culminated into the registration of the first F.I.R. and subsequently the second F.I.R. needs to be seen in the light of the fact as to whether the allegations are same or similar in nature.
17. It is said that every trial is a voyage of discovery in which truth is the quest. Therefore, the process of trial is inevitable to discover the truth from these complicated, overlapping and ambivalence facts like the present case. The petitioner has questioned the prosecution at the very incipient stage. The learned Court below has taken cognizance of offences on the basis of the averment made in the complaint and the statement of witnesses recorded under Section 202 Cr.P.C. The only test for the cognizance taking court is to see through the record as to whether prima facie case is borne out from the material form part of the record or not. The Trial Court in the instant case has only looked into the allegation made by the opposite party No.2 in the complaint/protest petition and the subsequent statement of the witnesses namely Suri Venkata Ramana, Nrusingha Das and Santosh Kumar Nanda.
Page 17 of 23
18. Perusal of the contents of the complaint and the evidence, no doubt makes out a prima facie case on facts in the first flush against the petitioner for the offences punishable under Sections 408/465/468/469/471/201 of I.P.C. read with Sections 66(C)/66(D)/72 of the I.T. Act. But availability of necessary ingredient from the materials on record to constitute a particular offence or offences needs to be gone into by the Court below at the appropriate stage, however, definitely not at this stage of cognizance. Therefore, no fault could be found in the impugned order and I think the Court below in this case has rightly taken note of the fact that the complainant/opposite party No.2 has successfully made out a prima facie case against the petitioner.
19. The contention of the petitioner through Mr. Singh, that on the selfsame allegation, there was already an F.I.R. registered wherein the petitioner has been arrayed as a witness, therefore, the subsequent F.I.R. is a mala fide action on the part of the opposite party No.2 could only be tested at the appropriate stage by the Trial Court. At the incipient stage of taking of cognizance of offences, the Court is not required to go into all these issues. The contention of Mr. Singh, learned counsel for the Page 18 of 23 petitioner regarding lack of ingredients to substantiate few of the offences cognizance of which has been taken against the petitioner is also an issue to be gone into by the Court below at the stage of framing of charges.
20. The Hon'ble Supreme Court in the case of Samta Naidu & Anr. vrs. State of Madhya Pradesh and Anr. reported in AIR OnLine 2020 SC 303 while taking clue from its earlier judgment the Pramatha Nath Talukdar vs. Saroj Ranjan Sarkar reported in AIR 1962 SC 876 has held as under:-
48. Under the Code of Criminal Procedure the subject of "Complaints to Magistrates" is dealt with in Chapter 16 of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are Sections 200, 202 and 203. Section 200 deals with examination of complainants and Sections 202, 203 and 204 with the powers of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of Sections 202 and 203 were laid down in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker. The scope of enquiry Under Section 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and Section 203 lays down what materials are to be considered for the purpose. Under Section 203 Code of Criminal Procedure the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made Under Section 202, of the Code of Criminal Procedure, and has Page 19 of 23 judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal Under Section 203, of the Code of Criminal Procedure, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interests of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.=
21. The Hon'ble Supreme Court in the case of Zunaid vrs. State of U.P. & Ors. reported in 2023 Livelaw (SC) 730 while dealing with a matter some what matching the facts of the present case has also held that the Magistrate by arriving at the subjective satisfaction can take cognizance of the offences on the basis of the averments in protest petition and an inquiry under Section 202 Cr.P.C. Paragraphs-11 & 12 of the said judgment is relevant to be reproduced as under:-
11. In view of the above, there remains no shadow of doubt that on the receipt of the police report under Section 173 Cr.P.C., the Magistrate can exercise three options. Firstly, he may decide that there is no sufficient ground for proceeding further and drop action. Secondly, he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; and thirdly, he may take cognizance of the offence under Section 190(1)(a) Page 20 of 23 on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. It may be noted that even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report. As held by this Court in Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha and Others, as followed in B. Chandrika Vs. Santhosh and Another, a Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of the police report. No doubt a Magistrate while exercising his judicial discretion has to apply his mind to the contents of the Protest Petition or the complaint as the case may be.
12. So far as the facts of the present case are concerned, the concerned CJM vide the detailed order passed on 15.11.2018 had rejected the final report submitted by the Investigating Officer and had accepted the Protest Petition, and decided to proceed further under Section 200 Cr.P.C.
Such a course opted by the CJM was absolutely just, legal and proper in the facts and circumstances of the case. The said order dated 15.11.2018 remained unchallenged at the instance of the respondents-accused. It was only when the concerned CJM after recording the statements of the complainant and eight witnesses, issued summons on 11.01.2022, the respondents filed the application challenging the said order dated 11.01.2022 under Section 482 before the High Court, and in the said application, the order dated 15.11.2018 came to be challenged by way of amendment. As such, the High Court should not have permitted the respondents-accused to amend the Application for challenging the order dated 15.11.2018 after about four years of its passing, and in any case should not have interfered with the discretion exercised by the CJM within the four corners of law. The discretionary order of 11.01.2022 passed by the concerned CJM issuing summons to the accused, after recording statements of the complainant and the eight witnesses and after recording Page 21 of 23 prima facie satisfaction about the commission of the alleged crime, also did not warrant any interference by the High Court. In our opinion, the High Court has committed gross error in setting aside the orders dated 15.11.2018 and 11.01.2022 passed by the CJM.= In the present case the Magistrate has opted for third option and by ignoring the police report, entered into an enquiry under section 202 Cr.P.C on the protest petition filed by the Opposite Party No.2. Basing on the allegations made in the protest petition and relying upon reiterations of the same in the pre-summoning evidence by the three witnesses, took cognizance of the offences against the petitioner. Such a course opted by the learned S.D.J.M., Paralakhemundi is absolutely just, legal and proper in the facts and circumstances of the case and well within scope of the law. Therefore, no interference from this Court in the matter is called for at this stage, however, dismissal of the present petition shall not preclude the petitioner to avail all his remedy under law at the appropriate stage before the court below.
22. Regard being had to the reasons enumerated in the preceding paragraphs, I find no cause to interfere with the impugned order rather I Page 22 of 23 feel it appropriate to relegate the petitioner to urge all his points before the trial Court at the appropriate stage.
23. With the aforementioned liberty, the CRLMC is disposed of.
..................
S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 16th July, 2024/ Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 22-Jul-2024 14:25:18 Page 23 of 23