Orissa High Court
Zhophoneyi Zuo vs State Of Odisha And Another .... ... on 17 May, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.674 of 2022
Zhophoneyi Zuo .... Petitioner
Mr. Gyanaloka Mohanty, Advocate
-Versus-
State of Odisha and Another .... Opposite Parties
Mr. Sitikanta Mishra, ASC
CRLMC No.697 of 2022
Durga Prasad Jena and Others .... Petitioners
Mr. Gyanaloka Mohanty, Advocate
-Versus-
State of Odisha and Another .... Opposite Parties
Mr. Sitikanta Mishra, ASC
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:17.05.2023
1.Since the matters arise out of a common cause of action, both the petitions have been clubbed together for disposal by the following order.
2. Instant petitions under Section 482 Cr.P.C. have been pressed into service by the petitioners assailing the impugned order of cognizance dated 18th January, 2017 under Annexure-3 passed in connection with G.R. Case No.725 of 2016 by the learned S.D.J.M., Koraput on the grounds inter alia that the same is CRLMC Nos.674 & 697 of 2022 Page 1 of 6 untenable in law and hence, liable to be quashed in the interest of justice.
3. In fact, opposite party No.2 lodged an FIR dated 7th April, 2016 alleging therein that the petitioners wrongfully prevented his children in boarding the bus to attend their school on 7th April, 2016. The details of the circumstances leading to the lodging of the report stands described therein, a copy of which is at Annexure-1. Precisely stated, it has been alleged in Annexure-1 that at the instance of the petitioner (CRLMC No.674 of 2022) who was by then the Commandant of CISF, Damanjodi, the petitioners (CRLMC No.697 of 2022) denied his children to travel in the school bus and committed the alleged overt acts. After the FIR was lodged, Damanjodi P.S. Case No.58 was registered on 30th July, 2016 under Sections 188, 341 read with 34 IPC and at last, on completion investigation, the chargesheet was submitted. After receipt of the chargesheet under the alleged offences, the learned court below passed the impugned order dated 18th January, 2017 (Annexure-3) in G.R. Case No.725 of 2016 which is currently under challenge.
4. Heard Mr. Mohanty, learned counsel for the petitioners and Mr. Mishra, learned ASC for the State-opposite party No.1.
5. Opposite party No.2 has not appeared despite notice through paper publication.
6. Mr. Mohanty, learned counsel for the petitioners submits that opposite party No.2 initially approached this Court in W.P.(C) No.23654 of 2013 and therein, an interim order dated 12th December, 2013 was passed in Misc. Case No.24425 of 2013 not to evict him from the official quarters at Damanjodi and take any such coercive action vis-a-vis continuance in the study of his CRLMC Nos.674 & 697 of 2022 Page 2 of 6 children in DPS, Damanjodi. Mr. Mohanty submits that opposite party No.2 was dismissed from service but due to the order dated 12th December, 2013 in Misc. Case No.24425 of 2013, he was permitted to occupy the quarters and his children were also allowed to continue their study in DPS, Damanjodi. It is claimed that opposite party No.2 has been a thoroughly an indisciplined lot against whom disciplinary proceeding was initiated and at last, he was removed from service. The petitioners alleged that opposite party No.2, after obtaining the Court's order dated 12th December, 2013, created problem inside the CISF Unit, nevertheless, he was allowed to stay in the quarters allotted to him and his children to pursue their study. Mr. Mohanty further submitted that in the meanwhile, suppressing the filing of the writ petition in W.P.(C) No.23654 of 2013, opposite party No.2 filed W.P.(C) No.10169 of 2016 and being unsuccessful in obtaining any order therein, initiated a proceeding in CONTC No.1295 of 2016, wherein, this Court directed the children to be allowed to use the school bus by order dated 6th December, 2016 and since such direction was complied with, by order dated 11th January, 2017, the appearance of petitioner in CRLMC No.674 of 2022 was dispensed with. At this juncture, Mr. Mohanty would submit that opposite party No.2 with ill-motive and in order to harass the petitioners lodged the FIR i.e. Annexure-1 at Damanjodi PS on 7th April, 2016, whereafter, without any proper application of mind, the local police filed the chargesheet against them under Sections 188, 341 and 109 read with 34 IPC and considering the same, the learned court below took cognizance of the offences under Annexure-3. Since, opposite party No.2 lodged the report with an intention to harass the petitioners and subject them to vexatious criminal prosecution, the impugned order under Annexure-3 and the proceeding pending before the learned court below deserves to be quashed in the interest of justice.
CRLMC Nos.674 & 697 of 2022 Page 3 of 67. Mr. Mishra, learned ASC for the State opposite party No.1, on the other hand, submits that on the report being lodged by opposite party No.2 and after a case registered at Damanjodi PS and the allegations made therein having been enquired into and investigated upon with the chargesheet finally submitted, the learned court below, on a subjective satisfaction arrived at, took cognizance of the alleged offences and hence, the impugned under Annexure-3 is absolutely justified and therefore it should not be interfered with.
8. The petitioner in CRLMC No.674 of 2022 has been chargesheeted under Sections 188, 341 and 109 read with 34 IPC, whereas, others under Sections 188 and 341 read with 34 IPC since it was alleged that the mischief was committed by the latter at the behest of the former, who at the relevant point of time was posted as the Commandant of CISF. It is claimed that the disciplinary proceeding was initiated in the year 2013 which was challenged in W.P.(C) No.23654 of 2013. It is also claimed that opposite party No.2 was awarded a punishment of dismissal from service as the disciplinary authority found him guilty of the levelled charges furnished vide Memo dated 6th August, 2013. It means, the disciplinary proceeding and its continuance was challenged by opposite party No.2 in W.P.(C) No.23654 of 2013 and during its pendency, he was terminated from service by an order of dismissal and thereafter. The question is, whether, in the facts and circumstances of the case, petitioners are liable for criminal prosecution and learned court below, later to the submission of chargesheet, was right in taking cognizance of the alleged offences against them vide Annexure-3?
9.The petitioner in CRLMC No.674 of 2022 was the Commandant of CISF and he was not present at the spot on the date of occurrence which took place on 7th April, 2016 but as CRLMC Nos.674 & 697 of 2022 Page 4 of 6 alleged by opposite party No.2, his children were denied to travel in the school bus which was at the instance of the former. In so far as, the alleged offences under Sections 188, 341 and 109 read with 34 IPC are concerned, whether any of them or all can be said to have been committed by the petitioners. The FIR (Annexure-1) was lodged by opposite party No.2 on 7th April, 2016, the date on which, the alleged incident took place and it was apparently and for the reason that his children were not allowed to travel in a bus. Mr. Mohanty, learned counsel for the petitioners submits that no offence under Section 188 IPC is made out since its ingredient are not fulfilled at it has to be prima facie established that there has been disobedience of an order with consequences. In the instant case, the petitioners did not disobey any such order, as it is made to understand that opposite party No.2 was allowed to occupy the quarters and his children to continue with their education and the alleged incident dated 7th April, 2016 took place prior to the order in CONTC No.1295 of 2016. It is not a case of disobedience of any order leading to a consequence punishable under Section 188 IPC. Rather, the order of the Court in Misc. Case No.24425 of 2013 was duly complied with. The Court is of the considered view that it is not a case of any such disobedience. As regards Section 341 IPC is concerned, since there was an instruction or order to carry out, to claim that opposite party No.2 and his children were unlawfully restrained would be too much to allege and implicate all the petitioners all the more when there was no such order for the latter to comply with. For the discussions made herein above, the Court reaches at a local conclusion that the criminal action against the petitioners cannot be sustained in law. The allegations in Annexure-1 are too trivial to take cognizance of when the alleged obstruction was to dissuade opposite party No.2 from using the school bus for his children, the facility to which, he was no more eligible for not CRLMC Nos.674 & 697 of 2022 Page 5 of 6 being in service anymore and that too, in absence of any judicial order against it. Having said that, the conclusion of the Court is that the learned court below could not have taken cognizance of the alleged offences against the petitioners vide Annexure-3. A question as to absence of sanction before taking cognizance by the learned court below is also raised by Mr. Mohanty. It submitted that since it was in due discharge of duty that the petitioners allegedly committed excess, the learned court below ought to have demanded a sanction in terms of Section 197 Cr.P.C. Such question has become merely academic for the reason that the Court has already reached at a conclusion against continuance of the criminal proceeding against the petitioners.
10. Accordingly, it is ordered.
11. In the result, CRLMCs stand allowed. As a necessary corollary, the impugned order of cognizance dated 18th January, 2017 under Annexure-3 and the proceeding in connection with G.R. Case No.725 of 2016 pending in the file of the learned S.D.J.M., Koraput are hereby quashed for reasons stated herein before.
(R.K. Pattanaik) Judge Tudu Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Reason: Authentication Location: OHC,CTC Date: 18-May-2023 12:30:45 CRLMC Nos.674 & 697 of 2022 Page 6 of 6