Orissa High Court
Adikianda Rout And Another vs State Of Orissa And Another on 16 November, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC NO. 213 OF 2004
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No. 08 of 2002
pending on the file of S.D.J.M., Hindol.
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Adikianda Rout
and another ......... Petitioners
-Versus-
State of Orissa
and another ......... Opposite parties
For Petitioners: - Mr. Prasanta Kumar Jena
D.P.Mohapatra, N.Panda
For Opp. Party No.1: - Mr. Dillip Kumar Mishra
Addl. Govt. Advocate
For Opp. Parties
Nos. 2 and 3: - Mr. Debasish Pattanaik
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 16.11.2016
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S. K. SAHOO, J.The petitioners Adikanda Rout and Narahari Rout have filed this application under section 482 of Cr.P.C. for quashing the order dated 01.08.2002 passed by the learned S.D.J.M., Hindol in I.C.C. Case No. 08 of 2002 in taking 2 cognizance of the offences under sections 450, 376(2)(g) of the Indian Penal Code and issuance of non-bailable warrant of arrest against them.
2. The prosecution case, as per the First Information Report dated 16.06.1995 lodged by the victims S-1 and S-2 is that the petitioners and other two persons namely Nabaghana Sahu and Natha Sahu committed rape on them on 12.06.1995 at 10.00 p.m. The matter was investigated upon and after completion of investigation, on 01.11.1996 the Officer in Charge, Rasol Police Station submitted final report indicating therein that it is a false case. On receipt of the final report, notice was issued to the informants and accordingly, the victim lady S-1 submitted a protest petition before the learned S.D.J.M., Hindol in which it is mentioned that the investigating officer without recording the true and proper statement of the victim and other witnesses and without sending the accused- petitioners for medical examination and examining only the witnesses to his choice has submitted the final report.
3. After receipt of the protest petition on 28.02.1997, the learned S.D.J.M., Hindol examined the victims S-1 and S-2 and witness Indrajit Mohanty during inquiry under section 202 of Cr.P.C and found that there is prima facie case for commission 3 of offences against the accused persons and accordingly vide order dated 27.10.1997 took cognizance of the offences under section 448, 376, 109/34 of Indian Penal Code and issued process against the petitioners and the co-accused persons namely Nabaghana Sahu and Natha Sahu.
All the four accused persons challenged the order dated 27.10.1997 in a revision petition which was heard by learned Addl. Sessions Judge, Dhenkanal in Criminal Revision No.70 of 1997/62 of 2001. The learned revisional Court vide judgment and order dated 11.01.2002 was of the view that the learned Magistrate has not followed the provisions under sections 200 and 202 of Cr.P.C. and accordingly, set aside the order dated 27.10.1997 and remitted the matter back to the learned S.D.J.M., Hindol with a direction to treat the protest petition as complaint and register the case as a complaint case and to examine the complainant on oath as per section 200 of Cr.P.C. and examine other witnesses, if any, present with the complainant and thereafter to conduct inquiry into the matter as provided under section 202 of Cr.P.C. if necessary and dispose of the case in accordance with law.
After receipt of the judgment of the revisional Court, the learned S.D.J.M., Hindol registered the I.C.C. Case No.08 of 2002, issued notice to the victim S-1, recorded her initial 4 statement on oath, conducted enquiry under section 202 of Cr.P.C. during course of which the victim S-1 produced two witnesses, out of which the other victim S-2 was examined as C.W.1 and one Indra Mohanty was examined as C.W.2. Thereafter, vide impugned order dated 01.08.2002, the learned Magistrate after perusing the statement of the complainant on oath and the statements of the witnesses examined during enquiry under section 202 Cr.P.C. and also perusing the F.I.R., C.D. and other relevant documents of G.R. Case No. 64 of 1995 was of the opinion there is sufficient ground for proceeding under sections 450, 376(2)(g) of the Indian Penal Code against the four accused persons including the petitioners and accordingly, issued the non-bailable warrant of arrest which has been challenged in this revision petition.
4. Learned counsel for the petitioners Mr. Prasanta Kumar Jena challenging the impugned order contended that the Magistrate cannot ignore the findings of the Investigating Officer while submitting the final report in taking cognizance of offences in the complaint case. He relied upon the decision of this Court in case of Sarat Chandra Rath -Vrs.- Malati Tandi reported in (2014) 59 Orissa Criminal Reports 1. It was further contended that though in the complaint petition, the complainant has mentioned the names of three witnesses but 5 during inquiry under section 202 of Cr.P.C., she has examined only two of them and since it is a case which is exclusively triable by Court of Session, the complainant is required to produce all her witnesses and examine them on oath as per the proviso to section 202(2) of Cr.P.C. and as the mandatory provision has not been complied with, the impugned order is not sustainable in the eye of law. Learned counsel for the petitioners further contended that the medical documents of the victims which are available on record have not been taken into consideration and the learned Magistrate approached the case in a very mechanical manner. He further contended that in the F.I.R. itself, it is mentioned that there was prior enmity between the parties and reasons have been assigned by the Investigating Officer for submitting the final report which have been ignored by the learned Magistrate. He further submitted that one Mitu Nayak who has been cited as an witness in the complaint petition has sworn affidavit before the Magistrate in G.R. Case No.64 of 1995 that it is a false case. While concluding his argument, Mr. Jena contended that the F.I.R. has been lodged by two victims, out of which only one has filed the protest petition which was treated as complaint petition and therefore, the complaint petition is not maintainable and the entire complaint case proceeding is vitiated in the eye of law and as 6 such it is a fit case to exercise the inherent power under section 482 of Cr.P.C. to quash the impugned order of taking cognizance and issuance of process.
5. Mr. Dillip Kumar Mishra, learned Addl. Government Advocate on the other hand countering the submissions advanced by the learned counsel for the petitioners contended that there is consistency in the facts narrated in the F.I.R as well as in the complaint petition and during course of investigation, both the victims were examined by the Investigating Officer and in their 161 Cr.P.C. statements, they have corroborated to the facts narrated in the F.I.R. He further submitted that Indra Mohanty who is witness to the complaint petition has also been examined during investigation and he has also supported the prosecution case. Learned counsel for the State placed reliance in the case of Shivjee Singh -Vrs.- Nagendra Tiwary & Ors. reported in (2010) 46 Orissa Criminal Reports (SC) 798 and contended that the complainant is not bound to examine all the witnesses named in the complaint petition and she is required to examine only those witnesses whom she choose to examine and considers material to make out a prima facie case for issuance of process and non-examination of any witness is not to be considered at the stage of issuing process and it is required to be considered at the stage of trial. Learned counsel 7 for the State further placed reliance in the case of Fakhruddin Ahmad -Vrs.- State of Uttaranchal reported in (2008) 41 Orissa Criminal Reports (SC) 607 wherein it is held that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. Learned counsel for the State while concluding his argument submitted that there is no illegality or infirmity in the impugned order in taking cognizance and issuance of process and therefore, this Court should not interfere with the same in exercise of its inherent power under section 482 Cr.P.C.
6. Mr. Debasish Pattanaik, learned counsel appearing for the two victims i.e., opposite party No.2 and 3 contended that the learned Magistrate has considered the F.I.R., C.D and other relevant documents of G.R. Case No.64 of 1995 and therefore, the contentions raised by the learned counsel for the petitioners that the learned Magistrate has not considered the final report, is not acceptable. It is further contended that since the F.I.R. was lodged four days after the occurrence and reasons have been assigned in the F.I.R. and since the victims are married ladies, therefore, the report of the doctors regarding absence of injury is not a criteria to disbelieve the prosecution 8 case and not to take cognizance of the offences, when the statements of the victims clearly makes out an offence under section 376(2)(g) of the Indian Penal Code.
7. On 15.11.2016 the lower Court records in I.C.C. Case No. 08 of 2002 pending in the Court of learned S.D.J.M., Hindol was called for, which is received today.
On going through the records, it appears that after passing of the impugned order, though a criminal revision petition was filed in the Court of learned Addl. Sessions Judge, Dhenkanal vide Criminal Revision No.23 of 2002 by the petitioners but a memo was filed not to press the revision petition and accordingly, vide order dated 29.11.2002 the same was dismissed.
There is no dispute that in the complaint petition, the victim S-1 who is the complainant in the case has mentioned the names of three witnesses in column No.3 and they are victim S-2, Indra Mohanty and one Mitu Nayak. The initial statement of the complainant has been recorded under section 200 of Cr.P.C. and during course of inquiry under section 202 of Cr.P.C. the victim S-2 was examined as C.W.1 and Indra Mohanty was examined as C.W.2 on 26.07.2002 and on the very day in the memo, it was indicated by the counsel for the 9 complainant that the evidence is closed and thereafter, the impugned order dated 01.08.2002 was passed.
Law is well settled that the complainant is not bound to examine himself during inquiry under section 202 of Cr.P.C. after recording of his initial statement under section 200 of Cr.P.C. and he is also not bound to examine all the witnesses named in the complaint petition and he is at liberty to examine any of them and decline the rest by filing a memo. The Magistrate cannot compel the complainant to examine himself or all or any of his witnesses in the inquiry. The provision is mandatory in the sense that only the witnesses whose statements are recorded either under section 200 Cr.P.C. or 202 of Cr.P.C. will be permitted to be examined before the Court of Session otherwise it would surprise the accused and he will be seriously prejudiced during trial in absence of any previous statements of such witnesses.
In case of Charan Rout -Vrs.- Prafulla Kumar Mangaraj reported in (1996) 11 Orissa Criminal Reports 322 where a question was posed whether the expression "all his witnesses" includes the complainant, it was answered in the negative and it was held that the Magistrate has no statutory obligation to call the complainant to examine himself as a witness. He is only required to call upon the complainant to 10 produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. Section 202 is a healthy provision to check frivolous complaint and if not carefully followed may lead to great injustice particularly in cases where large number of accused are charged with various offences. It is not in the nature of a trial. The proceeding under section 202 is not a proceeding between the complainant and the accused. It is further held that the expression "all his witnesses" appearing in the proviso to sub-section (2) of Section 202 has to be construed to mean "all witnesses which he chooses to examine". Any other construction would lead to absurd results and go against spirit of the enactment. If the complainant comes to know that one of the named witnesses has been gained over and is likely to give a different version than what is reality, it would be hazardous and suicidal for him to produce the concerned person for tendering evidence, knowing full well the consequences. If the complainant chooses to exclude any person named as a witness, he should file a memorandum in the Court clearly indicating that he does not want to examine any particular person as a witness though named in the complaint petition or to that effect that except those tendered for given evidence, none else would be examined. The provision for examination of complainant's 11 witnesses as required under sub-section (2) of Section 202 is mandatory. If they are not so examined, the accused will not a position to point out the contradictions when they give their evidence in the Court of Session.
In the case of Shivjee Singh -Vrs.- Nagendra Tiwary reported in (2010) 46 Orissa Criminal Reports (SC) 798, it is held as follows:-
"12. The use of the word "shall" in proviso to Section 202 (2) is prima facie indicative of mandatory character of the provision contained therein, but a closer and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant, is by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issuance of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word 'all' appearing in proviso to Section 202 (2) is qualified by the word 'his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined 12 whom the complainant considers material to make out a prima facie case for issue of process.
The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process. The choice being of the complainant, he may choose not to examine other witnesses.....
x x x x x x x
19. As a sequel to the above discussions, we hold that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202 (2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint......."
8. In view of the settled position of law, while after examining herself under section 200 of Cr.P.C. and examining two witnesses in course of inquiry under section 202 of Cr.P.C., out of which one is the other victim, the complainant closed the case from her side and was not inclined to examine the third witness Mitu Nayak who seems to have gained over by the accused persons and filed an affidavit in the G.R. case that it is a false case, it cannot be said that there was any prohibition on 13 the part of the learned Magistrate to take cognizance of the offences and issue process against the accused persons in relying upon the initial statement of the complainant and the statements of the two witnesses examined during inquiry under section 202 Cr.P.C. The choice being that of the complainant, she has exercised her choice and preferred not to examine the third witness Mitu Naik obviously because his examination might have damaged her case and therefore, the contentions of learned counsel for the petitioners that for the non-examination of witness Mitu Nayak who has been cited as witness no.3 in the complaint petition, the impugned order of cognizance is vitiated in the eye of law, cannot be accepted.
9. To buttress his contentions regarding the duty of the Magistrate to consider the findings of the investigating officer while submitting the final report at the time of taking cognizance of offences and issuance of process in the complaint case proceeding, the learned counsel for the petitioners relied upon the case of Sarat Chandra Rath -Vrs.- Malti Tandi reported in (2014) 59 Orissa Criminal Reports 1 wherein it is held as follows:-
"29. On a perusal of the impugned order of cognizance, it is seen that the same is based solely on the statements of the complainant and 14 two of her witnesses, recorded under section 202 Cr.P.C. almost 10 years after the alleged occurrence. Moreover, learned Magistrate has not taken into consideration the Final Report submitted by the Crime Branch and the statements of witnesses recorded by it during investigation. Mere relying upon the bald statements of the complainant and her two witnesses, learned Magistrate has proceeded to take cognizance of the offences under Sections 376/342/506/34 IPC against the present petitioners. Moreover, all the witnesses named in the complaint have not been examined before taking cognizance and directing issue of process against the accused persons, as has been prescribed under Section 202(2) Cr.P.C., especially when the offence alleged is under Section 376 IPC, which is exclusively triable by the Court of Sessions."
In case of Fakhruddin Ahmad -Vrs.- State of Uttaranchal reported in (2008) 41 Orissa Criminal Reports (SC) 607, it is held that it is trite that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report under Section 173(2) of the 15 Code, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police there from is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or not. Similar view has been taken in the case of Abhinandan Jha -Vrs.- Dinesh Mishra reported in A.I.R. 1968 S.C. 117, M/s. India Carat - Vrs.- State of Karnataka reported in A.I.R. 1989 S.C. 885 and Dr. Mrs. Nupur Talwar -Vrs.- C.B.I. reported in A.I.R. 2012 S.C. 847.
Cognizance is taken of an offence on the application of judicial mind whereas the process is issued against the accused after taking cognizance of offences where the Magistrate finds there is sufficient ground for proceeding against the accused. At that stage, the Magistrate is not required to weigh the evidence meticulously as the Trial Court is required to scrutinize the evidence or even as the Sessions Court scrutinizes the evidence to decide whether to frame or not to frame the charge under sections 227/228 of the Cr.P.C. When the police submit negative report but on perusal of such report, the Magistrate finds a prima facie case, he can take cognizance.
In case of Jagannath Das -Vrs.- State reported in (1992) 5 Orissa Criminal Reports 206, it is held that 16 Chapter-XV of the Code of Criminal Procedure commencing from section 200 and concluding with section 203 deals with complaints to Magistrate. A combined reading of sections 200 to 203 makes it abundantly clear that in the complaint case, the Magistrate is required to consider the statements on both, if any, of the complainant and of the witnesses and the result of the enquiry or investigation, if any, under section 203 of the Code of Criminal Procedure. The Court relied upon the decision of the Supreme Court in the case of Chandra Deo Singh -Vrs.- Prakash Chandra Bose reported in AIR 1963 SC 1430 wherein it was held that a Magistrate acting under section 203 of the Code has to satisfy himself that there is sufficient ground for proceeding and in order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under section 202 of Cr.P.C. or statements made in an investigation under that section, as the case may be, but he is not entitled to rely upon any material besides this. It has also been held in the said case that where the Magistrate had ordered an enquiry under section 202 of Cr.P.C. by another Magistrate, it is not open to him to consider the statements recorded during investigation by the police, or the evidence adduced before him during the enquiry arising out of another complaint and if the Magistrate has based his decision in 17 dismissing the complaint on such extraneous matter, the proceeding would be vitiated.
The language of section 203 of Cr.P.C. is very clear as to what are the materials that are to be considered by the Magistrate for dismissing of a complaint petition. Those are the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, under section 202 of Cr.P.C. Those are the very materials which are also required to be considered by the Magistrate while exercising its power under section 204 of Cr.P.C. regarding issuance of process. The other materials become extraneous which are not required to be considered either for dismissing the complaint petition or for issuance of process.
When the police conducts the investigation in a perfunctory manner and does not record the statements of the witnesses properly and being gained over by the accused persons submits final report, if a protest petition is filed and it is treated as a complaint petition and the witnesses are examined by the complainant during inquiry under section 202 of Cr.P.C., if either at the stage of section 203 or 204 of Cr.P.C., the statements of those witnesses are discarded on the ground that they have not made any such statements before police during course of investigation then there will be serious miscarriage of 18 justice. The reason for filing a protest petition is that the complainant is dissatisfied with the perfunctory investigation conducted by the police and therefore, the Magistrate has to confine himself only on the initial statement of the complainant, statements of witnesses recorded during inquiry under section 202 of Cr.P.C. as well as the investigation report, if any, in pursuance of order under section 202 Cr.P.C., while taking cognizance of the offence and issuing process against the accused persons. If the reasons for submission of final report by the police are considered for dismissal of a complaint petition or for not taking cognizance of the offence or for not issuance of process against the accused persons then there will be a failure of justice inasmuch as those reasons in the final report at that stage become extraneous materials. The statements which are available on record collected during course of police investigation can certainly be looked into at the stage of trial and if those previous statements are confronted to the witnesses in view of section 145 of the Evidence Act giving opportunity to them to explain, the learned Trial Court can consider the effect of such previous statements before the police.
In the present case, in the First Information Report, both the victims have categorically stated about the commission of gang rape by four accused persons including the petitioners. 19 Even in their 161 Cr.P.C. statements, they have also stated about the commission of rape. The witness who was examined during complaint case proceeding namely Indrajit Mohanty has also been examined by the police and he has also stated about the commission of rape of the victim which was disclosed to him by the victims. In such a scenario, it cannot be said that the facts narrated in the complaint petition as well as the statements given by the victims S-1 and S-2 and witness Indrajit Mohanty during the complaint case proceeding were made for the first time. When the statements of the complainant and the witnesses examined during 202 Cr.P.C. inquiry are at par with their previous statements made during course of investigation, even if final report has been submitted, I am of the view that the Magistrate has committed no illegality in relying upon statements and passing the impugned order.
Absence of injury on the victims as per the medical examination reports and its effect will be taken into consideration by the learned Trial Court at the appropriate stage, keeping in view the delay in lodging the First Information Report and the fact that the victims are married ladies but for such findings in the reports, at this stage, it cannot be said that the statements of the victims are not acceptable or are concocted.
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10. In view of the aforesaid discussions, I am of the view that the learned Magistrate has not committed any illegality in passing the impugned order in taking cognizance of the offences under sections 450 and 376(2)(g) of the Indian Penal Code.
Accordingly, the application filed by the petitioners being devoid of merits, stands dismissed.
11. At this stage, it is brought to my notice by the learned counsel for the petitioners that while passing the impugned order of taking cognizance in a complaint case, the learned Magistrate has directly issued non-bailable warrant of arrest which is not permissible in view of the settled position of law as enunciated by the Hon'ble Supreme Court in the case of Inder Mohan Goswami -Vrs- State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188 wherein it was held that in a complaint cases, at the first instance, the Court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the Court, in the second instance should issue bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding the Court's proceeding intentionally; the process of issuance of the non-bailable warrant should be resorted to.
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Therefore, the impugned order so far as issuance of non-bailable warrant of arrest against the petitioners, stands quashed.
With the aforesaid observation, the Criminal Revision is disposed of.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 16th November, 2016/Sukanta/Pravakar