Orissa High Court
Dinesh Diptimay@ Gudu vs State Of Orissa & Others on 5 December, 2014
Author: Amitava Roy
Bench: Amitava Roy
IN THE HIGH COURT OF ORISSA : CUTTACK
CRLMC No.403 of 2007
In the matter of an application under Section 482, Cr.P.C. to
quash the order of cognizance dated 23.12.2006 passed by the
S.D.J.M., Udala, Mayurbhanj, in G.R. Case No.339 of 2005.
__________
Dinesh Diptimay Nayak @ Gudu
.... Petitioner
-Versus-
State of Orissa & others .... Opp. parties
For the petitioners : Mr R.N. Biswal.
For the Opp. parties : Mr B.N. Bhuyan, A.G.A.
Mr D.K. Mishra (for OP-2)
___________
PRESENT:
THE HONOURABLE CHIEF JUSTICE MR. AMITAVA ROY
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Decided on : 05.12.2014
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Amitava Roy, C.J. The present application under Section 482 of
the Code of Criminal Procedure, 1973 (for short, hereinafter
referred to as "the Code") seeks to annul the order dated
-2-
23.12.2006passed by the S.D.J.M., Udala, in G.R. Case No.339 of 2005 taking cognizance of the offences under Sections 307/363/34 IPC against the petitioner and opp. party nos.3 and 4.
2. Heard Mr R.N. Biswal, learned counsel for the petitioner, Mr B.N. Bhuyan, learned Addl. Standing Counsel for the State-opp. party and Mr D.K. Mishra, learned counsel for opp. party no.2.
3. The recorded facts disclose that on 13.12.2005 an FIR was lodged with the Khunta P.S. by opp. party no.2 herein alleging that on 7.12.2005 his son Shri Abhijit Behera on being called by the petitioner accompanied him in a scooty/motorcycle. At about 12.45 A.M. in the night while the informant was sleeping, Dillip Kumar Nayak the father of the petitioner and others informed him that his son (Abhijit) had fallen down from the scooty, whereafter he along with Dillip Nayak and his companions went in search of Abhijit and eventually found the scooty parked at Brundagadi Chhak. As the informant could not locate his son nearby, he continued with the search and in the next morning got the information that he (Abhijit) had been admitted in Khunta P.H.C. in seriously injured condition. The informant thereafter rushed to the hospital and on medical advice the victim was shifted to Baripada and eventually to Kalinga Hospital, Bhubaneswar. According to the prosecution, after four days, Abhijit having regained his consciousness the FIR was lodged.
4. On the FIR, Khuta P.S. Case No.101 of 2005 under Sections 307/363/34 IPC was registered and on the conclusion of the investigation, charge sheet was laid against the petitioner and one Dillip Kumar Nayak under Section 279/337 IPC.
-3-5. Being informed of the report in the final form, as above, the informant (O.P.2) filed an application in the court of the learned S.D.J.M., Udala, reiterating the statements made in the FIR and adding further that the injured had identified opp. party nos.3 and 4 to be the accused persons and had also indicated the place where he was thrown in the drain near the roadside of Titia Chhak. It was averred as well that the accused persons were influential inhabitants of the locality and that the I.O. neither examined him nor other witnesses in order to favour the persons involved. The informant (O.P.2) prayed for an order for reinvestigation of the case.
6. It is worthwhile to mention that in the said application, the informant had sated that about 1.30 A.M. in the night i.e. on 7/8.12.2005 while the search was on, he found opp. party nos. 3 and 4 near Naloya Chhak and that on his return after informing the Khunta P.S. over telephone, he had found that the petitioner sleeping in his house. According to the informant, when the petitioner was asked about his son he did not reply. Noticeably, corresponding to Khunta P.S. Case No.101 of 2005, G.R. Case No.339 of 2005 had been registered.
7. Learned trial court by order dated 18.11.2006 recorded receipt of this application under Section 173, Cr.P.C. of the informant. On 23.12.2006, the learned trial court on a consideration of the application filed under Section 173 of the Code filed by the informant, the FIR, statements recorded by the police under Section 161 Cr.P.C. of Abhijit Behera and other papers relatable to the investigation held the view that there was prima facie evidence to take cognizance of the offences under Sections 307/363/34 IPC instead of those under Sections 279/337 -4- IPC. By order of the even date i.e. 23.12.2006, the informant was directed to furnish the detailed address of Tutu Sahu and Nalini Naik (O.P. Nos.3 and 4) including their age by 16.1.2007 and also to produce the injury report of the victim by collecting the same from D.H.H., Baripada and Kalinga Hospital, Bhubaneswar. By order dated 16.1.2007, C.S.I. was directed to handover the case record to the Bench Clerk of the concerned court to issue summons to the accused persons for their appearance fixing 16.3.2007.
8. Mr R.N. Biswal, learned counsel for the petitioner, has argued that though it was within the competence of the learned trial court on receipt of the charge sheet under filed Section 279/337 IPC to independently assess the materials collected in course of the investigation by the police and to arrive at a conclusion different from the one recorded in the report submitted in the final form under Section 173 Cr.P.C., it fell in serious error in acting upon the allegations made in the protest petition of the informant in doing so and in issuing process against the petitioner, opp. party nos.3 and 4 after taking cognizance under Section 307/363/34 IPC without following the procedure prescribed under Section 200 and 204 Cr.P.C. According to the learned counsel, as the protest petition by the informant was construed to be a complaint petition by the learned trial court independent of the report in final form submitted by the police under Section 173, Cr.P.C. it was incumbent for it to follow the procedure prescribed by the court to take cognizance of the offence under 190(1)(a) of the Cr.P.C. and the same not having been done, the order dated 23.12.2006 is null and void.
-5-9. Mr D.K. Mishra, learned counsel for the opp. parties has per contra submitted that as it was open for the learned trial court to disagree with the conclusion recorded by the police in its report in final form submitted under Section 173 Cr.P.C., the course adopted by it is valid and thus no interference with the order dated 23.12.2006 is called for.
10. I have examined the materials on record and have also extended my due consideration to the arguments advanced. A bare perusal of the charge sheet submitted by the police on the completion of the investigation under Section 173 of the Code would in no uncertain terms reveal that thereby the culpability of the petitioner and one Dillip Kumar Nayak under Sections 279/337 IPC had been ascertained and they were sent up for trial under the said provisions of law. It was inter alia mentioned in the said charge sheet that no case had been made out against them under Sections 363/307/34 IPC.
11. According to the police, it was a case of accident of the scooty as testified by the witnesses and the attendant circumstances in course whereof Abhijit Behera the son of informant fell down and received injury. The charge sheet did not involve in any way opp. party nos.3 and 4 in the incident. These opp. parties, however, were clearly implicated by the informant in his protest petition while asserting that it was a case under Sections 307/363/34 IPC. It can thus reasonably be concluded that the learned trial court vide order dated 23.12.2006 took cognizance of the offences under Sections 307/363/34 IPC in place of those under Sections 279/337 IPC by taking note of the contents of the protest petition filed by the informant. To reiterate thereby, the learned trial court also -6- directed the informant to furnish the particulars of opp. party nos.3 and 4 along with their age together with the injury report pertaining to the victim. Thus, it cannot be held that the learned trial court in taking cognizance under Sections 307/363/34 IPC against the petitioner, opp. party no.3 and opp. party no.4 had limited its scrutiny to the materials pertaining to police investigation only, culminating in the submission of the charge sheet filed under Sections 279/337 IPC.
12. The Hon'ble Apex Court in Abhinandan Jha and others v. Dinesh Mishra, AIR 1968 SC 117, had been seized with the question as to whether a Magistrate can direct the police to submit charge sheet whereafter investigation into a cognizable offence the police had submitted final report under Section 173 Cr.P.C. exonerating the persons alleged to have committed the offences referred to in the First Information Report. Their Lordships after an exhaustive survey of the various judicial pronouncements on the issue did answer in the negative. It was held that though there was certainly no obligation on the part of the Magistrate to accept the report submitted by the police, be it under Section 169 or 173 of the Code, and that if he suspected that an offence had been committed, he was entitled, notwithstanding the opinion of the police, to take cognizance under Section 190(1)(b) of the Code, it was observed in the facts of the case that the Magistrate while directing the police to submit the charge sheet had also not adopted the suitable procedure indicated in the Code while taking cognizance of the offence, treating the protest petition to be a complaint made to him. It was underlined in the textual facts that though the direction of the Magistrate to the police to file charge sheet was beyond -7- jurisdiction it was open to him to treat the protest petition as complaint and take further proceeding in accordance with law.
13. In Gagadhar Janardan ahatre v. State of Maharashtra and others, (2004) 7 SCC 768, their Lordships of the Hon'ble Apex Court held that upon receipt of a police report under Section 173(2) of the Code, a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case had been made out against the accused. It was enunciated that a Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused in exercise of power under Section 190(1)(b) of the Code. It was clarified that the Magistrate in such a situation was not bound to follow the procedure laid under Section Sections 200 and 202 of the Code for taking cognizance of the offences under Section 190(1)(b) of the Code though it would be open to him to chart the said course. Their Lordships propounded that when information is lodged but no action is taken, the informant can under Section 190 read with Section 200 of the Code lay a complaint before the Magistrate having jurisdiction to take the cognizance of the offence and then the Magistrate is required to enquire into the complaint as provided in the Chapter XV of the Code, and, in such an eventuality, if the Magistrate after recording evidence finds a prima facie case, then even instead of issuing process to the accused he is empowered to direct the police concerned to investigate into the offence under Chapter XII of the Code and to submit a report.
-8-14. It is thus apparent from the preponderant judicial view adumbrated as above that even on the submission of a report by the police under Section 173(2) of the Code stating that no case had been made out against the accused, it is competent for the Magistrate to disagree with the said conclusion on a scrutiny of the materials collected in course of the investigation and either take cognizance of the offence alleged or direct further investigation under Section 156(3) of the Code. It is also amply clear that if such a course is adopted, the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of the offences under Section 190(1)(a) though it is open for him to do so.
15. However, if the protest petition is construed to be an original complaint and reliance is placed thereon by the Magistrate, he has to essentially follow the procedure as set out in Chapter XV of the Code enfolding Sections 200 to
203. In such an eventuality, therefore, the cognizance of the offence would be construed to be under Section 190(1)(a) of the Code for which the procedure enjoined under Chapter XV has to be unsparingly observed.
16. In the case in hand, on a scrutiny of the materials on record as a whole, this Court is left with the impression that the learned trial court while taking cognizance of the offence under Sections 307/363/34 IPC against the petitioner and opp. party nos.3 and 4 had traversed beyond the materials collected in course of the investigation by the police and had consciously relied upon the statements made in the protest petition by way of additional materials without, however, adhering to the procedure prescribed under Chapter XV of the Code. This, -9- in comprehension of the Court, is not permissible in view of the law laid down by the Hon'ble Apex Court as adverted to herein above.
17. In the above factual and legal premise, this Court is thus inclined to sustain the challenge laid to order dated 23.12.2006 taking cognizance of the offences under Sections 307/363/34 IPC against the petitioner and opp. party nos.3 and 4 and steps consequential thereto in G.R. Case No.339 of 2005. The order dated 23.12.2006 is thus set aside.
The petition is allowed.
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Amitava Roy, C.J.
Orissa High Court, Cuttack Dated 5th December, 2014/pcp