Orissa High Court
Susila Kumari Dei Alias Sahoo vs State Of Orissa And Another on 13 November, 2017
Equivalent citations: AIRONLINE 2018 ORI 356
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 1725 of 2005
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.01 of 2005
pending on the file of S.D.J.M., Banki.
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Susila Kumari Dei
@ Sahoo ......... Petitioner
-Versus-
State of Orissa & Another ......... Opposite parties
For Petitioner: - Mr. Sambit Rath
For State: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
For Opp. Party No.2 - None
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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: 13.11.2017
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S. K. SAHOO, J.Heard Mr. Sambit Rath, learned counsel for the petitioner and Mr. Prem Kumar Patnaik, learned counsel for the State.
In this application under section 482 Cr.P.C. the petitioner Susila Kumari Dei @ Sahoo has challenged the 2 impugned order dated 08.04.2005 passed by learned S.D.J.M., Banki in I.C.C. Case No.01 of 2005 in taking cognizance of the offences under sections 380 and 506 of the Indian Penal Code and issuance of process against her.
It appears that on the first information report submitted by the opposite party no.2 Nrusingha Charan Sahoo before the officer in charge of Baideswar police station, Baideswar P.S. Case No.65 of 2004 was registered under sections 448/379/323/294/506/34 of the Indian Penal Code against the petitioner as well as co-accused persons Madhusudan Mohapatra and Pramod Kumar Sahoo.
After completion of investigation, the investigating officer came to hold that there was no complicity against the petitioner and accordingly prayed to the Superintendent of Police for eliminating her name in the case which was accepted. However, charge sheet was submitted against co-accused persons Madhusudan Mohapatra and Pramod Kumar Sahoo under sections 379/323/294/506/34 of the Indian Penal Code.
The opposite party no.2 being aggrieved by the non- submission of charge sheet against the petitioner, filed a protest petition which was in the form of a complaint petition and it was registered as I.C.C. Case No.01 of 2005 in the Court of learned S.D.J.M., Banki. The S.D.J.M., Banki recorded the initial 3 statement of the opposite party no.2 and conducted inquiry contemplated under section 202 of Cr.P.C., during course of which the opposite party no.2 examined two witnesses. After perusal of the complaint petition, initial statement of the complainant and statements of the witnesses recorded under section 202 of Cr.P.C., the learned Magistrate being satisfied that there was sufficient material for proceeding against the petitioner under sections 380 and 506 of the Indian Penal Code, took cognizance of such offences and issued process against her.
Mr. Sambit Rath, learned counsel appearing for the petitioner contended that the impugned order suffers from non- application of mind and when after thorough investigation, the investigating officer found no prima facie case against the petitioner and accordingly prayed to the Superintendent of Police to eliminate her name from the case and after obtaining the order from the Superintendent of Police, charge sheet was submitted only against two co-accused persons and when the accusation leveled against the petitioner during the complaint case proceeding is not clinching, the learned Magistrate should not have passed the impugned order.
Mr. Prem Kumar Patnaik, learned Addl. Government Advocate supported the impugned order.
None appears on behalf of the opposite party no.2. 4 After going through the initial statement of the complainant, it appears that she has stated that when she arrived at the spot, co-accused Madhusudan Mohapatra gave a neck push to him and co-accused Pramod Kumar Sahoo threatened him to kill with a sword and the petitioner raised a vegetable cutter (Paniki) and threatened him to assault. The other witnesses have also stated that the petitioner raised a vegetable (cutter). It appears that the parties are related to each other and there was civil dispute between the parties and the petitioner is the sister of the opposite party no.2.
On the basis of the available materials on record which were produced by the opposite party no.2 during complaint case proceeding, I am of the view that there is no sufficient material to constitute the ingredients of the offences under sections 380 and 506 of the Indian Penal Code. It cannot be lost sight of the fact that even though no charge sheet has been submitted against a particular person, the Magistrate can ignore the findings of the investigating officer in the charge sheet and can proceed against such person who has not even been charge sheeted. There is also no dearth of power with the Magistrate to proceed against a person who has not been charge sheeted invoking power under section 319 of Cr.P.C. if during course of trial, materials come against such person. However, 5 the materials basing on which the learned Magistrate has passed the impugned order, according to my humble view, is not prima facie sufficient to come to a conclusion that the petitioner has committed the offences under sections 380 and 506 of the Indian Penal Code. Therefore, the impugned order dated 08.04.2005 passed by the learned S.D.J.M., Banki in I.C.C. Case No.01 of 2005 is not sustainable in the eye of law.
Accordingly, the CRLMC application is allowed and the impugned order stands quashed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 13th November, 2017/Sisir