Orissa High Court
Surendranath Tripathi And Others vs Pravabati Pattnaik on 24 July, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 256 Of 2003
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.952 of 2002
pending on the file of S.D.J.M., Bhubaneswar.
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Surendranath Tripathi
and others ......... Petitioners
-Versus-
Pravabati Pattnaik ......... Opposite party
For Petitioners: - Mr. Dharanidhar Nayak
(Senior Advocate)
Sangram Kumar Das
For Opp. Party - None
CRLMC No. 303 Of 2003
Pravat Chandra Mohapatra
and others ......... Petitioners
-Versus-
Pravabati Pattnaik ......... Opposite party
For Petitioners: - None
For Opp. Party - None
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2
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 24.07.2016
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S. K. SAHOO, J.In CRLMC No.256 of 2003, the petitioner no.1 Surendranath Tripathi was the Chairman -cum- Managing Director, OSFC, the petitioner no.2 Pradyut Kumar Balabantaray was the Deputy General Manager, OSFC, the petitioner no.3 Arun Kumar Das was the General Manager, OSFC and the petitioner no.4 Rabindaranath Dey was the Joint General Manager, OSFC and in CRLMC No.303 of 2003, the petitioner no.1 Pravat Chandra Mohapatra was the Joint General Manager, OSFC, the petitioner no.2 Pramod Chandra Panda was the Joint General Manager, OSFC, Cuttack and the petitioner no.3 Lalit Kumar Nanda was the Deputy General Manager (Law), OSFC.
Since both CRLMC applications under section 482 of Cr.P.C. arise out of I.C.C. Case No.952 of 2002 pending in the Court of learned S.D.J.M., Bhubaneswar in which the petitioners have challenged the impugned order dated 16.01.2003 passed by the learned S.D.J.M. in taking cognizance of offences punishable under sections 294, 323,506 and 34 of the Indian Penal Code and issuance of process against them, with the 3 consent of the parties, both the applications were heard analogously and disposed of by this common judgment.
2. The opp. party Pravabati Pattnaik stated in the complaint petition that she and her husband Santosh Kumar Pattnaik were the partners of M/s. Indoplast Industries situated at D-2/3, Mancheswar, Industrial Estate, Bhubaneswar and they were carrying on their business by making a partnership agreement and owing to super cyclone, the industry was damaged for which they submitted an application for loan to the OFSC authorities under cyclone rehabilitation scheme and on 27.12.2000 a loan of Rs. 13.21 lakhs was sanctioned, out of which Rs.2,81,000/- was released on 03.04.2001 by the OSFC authorities. Thereafter, the complainant and her husband approached the petitioner Surendranath Tripathi and other concerned authorities to get back the balance amount of Rs.10,040,00/- in order to get back their industry in a running condition but that was not done in spite of repeated requests. It is the further case of the complainant that on 04.07.2002 at about 11.30 a.m., the complainant reached at the office of the OSFC and when she entered into the office of the petitioner Surendranath Tripathi, he challenged her as to how she entered in the room. When the complainant tried to explain her 4 grievances, the petitioner shouted at her and pushed her out of the room. The complainant vehemently raised her protest to the misbehavior of the petitioner but he called the other petitioners who came to the spot and all of them surrounded the complainant and did not allow her to go out and then she was assaulted by fists and blows and then the petitioner Surendranath Tripathi abused her in filthy language such as "BEDHA TO GANDI GALU HEUCHHIKI, MARIBAKU AASIGALU". Then the petitioners dragged the complainant on the floor upto the stair case and threw her on the stair case. The petitioner Surendranath Tripathi threatened her again such as "BEDHA AAU THARE OFFICEKU AASILE MARI SAFA KARIDEBI". At that point of time the witnesses were present at the spot and when they protested against the illegal action of the petitioners, they stopped assaulting the complainant. It is stated that due to assault by the petitioners, the complainant sustained swelling injury on her waist and pain on the different parts of her body for which she was medically examined.
It is further stated in the complaint petition that a report was lodged in connection with the case before the I.I.C., Nayapalli police station who assured to investigate the matter but did not take any action for which the complainant sent 5 information along with the copy of the F.I.R. to the Superintendent of Police, Khurda, Bhubaneswar. It is further stated that police did not investigate the matter being gained over by the petitioners and accordingly, the complaint petition was filed.
3. After filing of the complaint petition on 24.07.2002, the learned S.D.J.M., Bhubaneswar recorded the initial statement of the complainant-opp.party and also conducted inquiry under section 202 of Cr.P.C., during course of which the complainant examined three witnesses. The learned Magistrate after perusing the averments taken in the complaint petition, the initial statement of the complainant recorded under section 200 of Cr.P.C. and the statements of the witnesses recorded under section 202 of Cr.P.C., found prima facie material for commission of offences under sections 294/323/506/34 of the Indian Penal Code and accordingly, took cognizance of such offences. The learned Magistrate also considered the aspect that the petitioners are the public servants and considering the provision under section 197 of the Cr.P.C. held that no protection can be granted to the petitioners as there was neither any requirement nor the situation was such that it was necessary for the accused persons either to use filthy language to the complainant or to 6 assault or criminally intimidate her. It was further held that the act complained of has absolutely no nexus with the discharge of the official duty of the petitioners and no sanction is necessary before taking cognizance.
4. While challenging the impugned order, Mr. Dharanidhar Nayak, learned counsel for the petitioners in CRLMC No.256 of 2003 contended that in the complaint petition as well as in the initial statement, the complainant has stated that the F.I.R. was lodged before the Inspector in charge of Nayapalli police station on the very day of the occurrence and therefore, in view of the provision under section 210 of Cr.P.C. which is mandatory in nature, the learned Magistrate should have stopped the complaint case proceeding and called for a report from the concerned police station and the same having not been done, the impugned order of cognizance is vitiated in the eye of law and therefore, should be quashed. It is further contended that the complainant has presented a very highly improbable story in the complaint petition and the complaint petition has been instituted with an oblique motive and malafide intention inasmuch as on 04.07.2002 a first information report was lodged against the complainant on the report submitted by petitioner Pradyut Kumar Balabantaray before the Inspector in charge, 7 Nayapalli police station for which Nayapalli P.S. Case No.154 of 2002 was registered under sections 428/353/323 of the Indian Penal Code and just as a counter blast to the said case, a false complaint petition has been instituted against the petitioners.
5. None appears on behalf of the petitioners in CRLMC No.303 of 2003 and the complainant-opposite party.
6. Section 210 of Cr.P.C. deals with the procedure to be followed by the Magistrate when there is a complaint case and police investigation in respect of the same offence. Sub-section (1) of Section 210 of Cr.P.C. states that during the course of inquiry or trial of a complaint case, if it appears to the Magistrate that the police investigation is under progress in relation to the offence which is the subject matter of inquiry or trial in the complaint case then the Magistrate shall stay the complaint case proceeding and has to call for a report on the matter from the police officer conducting the investigation. Therefore, before staying the complaint case proceeding and calling for a report on the matter from the police officer, the Magistrate must be satisfied with cogent materials that the police investigation is actually under progress. In a complaint petition, the format which has been given under Rule 20 of the G.R.C.O. (Criminal) of High Court of Judicature, Orissa, column no.6 prescribes that the 8 complainant has to mention whether any information was given at the police station and if so, the action taken thereon. If the complainant has not indicated regarding lodging of any F.I.R. relating to the self same matter before the police station or the status of the case and the Magistrate also does not get any such information, it is not expected from the Magistrate to call for a report from the police station to ascertain as to whether any F.I.R. has been lodged and if so, what is the status of the case. If a report has been given but it has not been registered in the police station or even if registered, no progress in the investigation has been made then the complainant has to mention it clearly in his complaint petition about the correct position. Obviously if the police investigation is not under progress or it has been completed and final form has been submitted then question of staying the proceedings of the complaint case does not arise.
In the case of Niranjan Nayak -Vrs.- State of Orissa reported in Vol.86 (1998) Cuttack Law Times 282, it is held that on a bald statement in the complaint petition to the effect that the complainant lodged information at the police station is also not sufficient for not proceeding with the complaint case in absence of any material to suggest that the 9 investigation was in progress. The crucial question is whether it was made to appear to the Magistrate that an investigation by the police in relation to the same offence which was the subject matter of the inquiry/trial held by him was in progress. Statement in the complaint petition can provide the basis. But mere statement in the complaint case that information was lodged with police would not be sufficient unless it is made to appear to the Magistrate that investigation is in progress in relation to the offence.
In the case of Dilawar Singh -Vrs.- State of Delhi reported in A.I.R. 2007 Supreme Court 3234, the Hon'ble Supreme Court held that it is the simplest of things for the complainant to contend that the police, though report had been lodged with it, had not taken any steps. But it has to be established by calling for the necessary records from the police to substantiate that in fact a report with the police had been lodged and that the police failed to take up the case. The principle has been statutorily recognized in Section 210 of the Cr.P.C. which enjoins upon the Magistrate, when it is made to appear before him either during the inquiry or the trial of a complaint, that a complaint before the police is pending investigation in the same matter, he is to stop the proceeding in 10 the complaint case and is to call for a report from the police. After the report is received from the police, he is to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint case along with the G.R. Case as if both the cases are instituted upon police report. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions of Section 210 Cr.P.C. are mandatory in nature. It may be true that non-compliance of the provisions of section 210 Cr.P.C. is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr.P.C., unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice, the Court shall have regard to the fact whether there is a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
Keeping the aforesaid principles in view, if the averments made in the complaint petition is taken into consideration, it appears that the complainant has specifically mentioned that her husband lodged the F.I.R. before the I.I.C., Nayapalli Police Station on the very day at 3.45 p.m. and the I.I.C., Nayapalli Police Station had assured to the husband of the 11 complainant to investigate the matter properly but in spite of repeated approaches to the police by the complainant and her husband, the police have not taken any legal action against the accused and owing to police inaction, on 15.07.2002 the complainant sent information along with the copy of F.I.R. to the S.P., Khurda, Bhubaneswar by speed post with A.D. and since the accused persons are very much rich and influential persons of the society for which the police are not daring to take steps against them. It is further averred in the complaint petition that the police did not investigate the matter being gained over by the influence of the accused persons for which the complainant has no way out other than taking shelter in the Court of law. In the initial statement, the complainant has stated that at about 3.45 p.m. on the same day her husband lodged a report at Nayapalli Police Station and the police officer accepted the report and for eight to ten days, she and her husband rushed to the Nayapalli police station to request the police officials to conduct an investigation in the report but the police remained inactive on the report, as the accused persons are influential persons and on 15.07.2002 her husband sent a copy of the report to the S.P., Bhubaneswar by Regd. Post with A.D. but no action has been taken by the police. Therefore, from the averments made in the 12 complaint petition as well as from the initial statement of the complainant, it is very much clear that even though one F.I.R. has been lodged before the I.I.C., Nayapalli Police Station but no action was taken and even though a report was sent to S.P., Khurda, Bhubaneswar by speed post with A.D. but on such report also no action was taken and the police did not investigate the matter.
When section 210(1) of Cr.P.C. indicates that when it will appear to the Magistrate that police investigation in relation to the offence is under progress either during inquiry or trial of a complaint case which is the subject matter of the complaint petition then can only the Magistrate stay the complaint case proceeding and has to call for a report in the matter from the police officers conducting the investigation but since there is no material before the Magistrate in this case during course of inquiry of the complaint case proceeding that the investigation by the police is under progress in relation to the same offence rather it has been categorically stated that no investigation has been conducted, therefore, compliance of section 210(1) of Cr.P.C. by the Magistrate in staying the complaint case proceeding and calling for a report from the police officer does not arise. Therefore, the contention raised by the learned 13 counsel by the petitioner that for non-compliance of provision 210(1) Cr.P.C., the impugned order of taking cognizance should be quashed cannot be accepted.
7. So far as the question of sanction is concerned, the learned Magistrate has taken a prima facie view regarding the non-necessity of obtaining sanction in the facts and circumstances of the case, which cannot be said to be illegal and improper and therefore, at this stage, I am not inclined to interfere with the order of taking cognizance on the ground of absence of sanction. Similarly, there is no material at this stage that the complaint petition has been instituted with an oblique motive and malafide intention. Merely because one F.I.R. was presented by one of the petitioners against the complainant before Nayapalli police station and a case was registered, at this stage, it would be unfair to hold that the complaint petition contains false and fabricated story and it has been filed just as a counter blast to the F.I.R. lodged against the complainant. Which version is true, it is to be ascertained by the learned Magistrate at the appropriate stage. If at the stage of framing of charge, any application is made by the petitioners for discharge, the learned Magistrate shall duly consider the same and pass a 14 reasoned order without being influenced by any observation made in this order.
With the aforesaid observation, the CRLMC
applications are disposed of.
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S. K. Sahoo, J.
Orissa High Court, Cuttack
The 24th July, 2017/Kabita/Sukanta