Orissa High Court
Panchanan Chhatar vs Geddam Enkat Rao .... Opposite Parties on 6 July, 2021
Author: S. Pujahari
Bench: S. Pujahari
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3024 of 2010
Panchanan Chhatar .... Petitioner
Mr. Gautam Misra, Advocate
-versus-
1. Geddam Enkat Rao .... Opposite Parties
2. State of Orissa
Mr. R.K. Mahapatra (For OP. No.1)
CORAM:
JUSTICE S. PUJAHARI
ORDER
Order 06.07.2021 No. 25. 1. This application under Section 482 of Cr.P.C.
has been filed for quashing of the entire proceeding in I.C.C. No.51 of 2009 and G.R. Case No.853 of 2008, pending in the Court of the learned S.D.J.M., Bargarh.
2. Heard the learned counsel for both parties and perused the relevant papers on record vis-à-vis the contention raised by the parties before this Court.
3. Alleging the petitioner and his late father - Gobardhan Chhatar to have forcibly cut and removed the standing paddy crops from the land in his possession, the complainant (opposite party herein) Page 1 of 8 // 2 // lodged a complaint registered as I.C.C. No.65 of 2008 before the learned S.D.J.M., Bargarh. The said complaint on being referred to police under Section 156(3) of Cr.P.C. was treated as F.I.R. giving rise to P.S. Case No.195 dated 19.11.2008 corresponding to G.R. Case No.853 of 2008 under Sections 379/294/506 of IPC. On completion of investigation, police, however, submitted final report treating the case as mistake of law on the ground, inter-alia, that the disputed land was the subject-matter of a proceeding under Section 145 of Cr.P.C. before the learned Executive Magistrate. In the wake of the aforesaid, the learned S.D.J.M., Bargarh issued notice to the Informant (complainant), and on receiving a protest petition from the complainant, he registered the same as I.C.C. No.51 of 2009 and in proceeding therewith as per Chapter-XV of Cr.P.C., recorded initial statement of the complainant under Section 200 of Cr.P.C. followed by an inquiry under Section 202 of Cr.P.C., and vide the order dated 24.02.2010 passed in said complaint case (I.C.C. No.51 of 2009) took cognizance of offences under Sections Page 2 of 8 // 3 // 448/294/379/506/34 of IPC against the petitioner and his father and also directed the said complaint case to be tagged with G.R. Case No.853 of 2008. For a ready reference, the order dated 24.02.2010 passed by the learned S.D.J.M., Bargarh is re-produced here below:-
"The record is placed today for order. Perused the complaint petition in I.C.C. 51/2009 which is filed as a protest petition against the final report submitted in G.R. Case No.853/2008. Perused the initial statement of the complainant and the statements of other witnesses recorded U/s.202 of Cr.P.C. and the materials available in the complaint petition. Prima-facie offence U/s.448, 294, 379, 506/34 of IPC are made out. Cognizance of the offence U/s.448, 294, 379, 506/34 of I.P.C. is taken. There are sufficient materials to proceed against the accused persons (named in the complaint petition under the above sections of law. So, process be issued accordingly.
The aforesaid order be reflected in G.R. Case No.853/2008 and the present case in I.C.C. 51/2009 be tagged with the G.R. Case No.853/2008 and the same shall run as G.R. Case No.853/2008. The above order of issuance of process be complied in G.R. Case No.853/2008.
Since the complaint petition in I.C.C. 65/2008 was sent U/s.156(3) of Cr.P.C. which was registered as G.R. Case No.853/2008 (Attabira P.S. Case No.195/2008), the case record in I.C.C.65/2008 which is only having the copy of the complaint petition and the order sheets be tagged with the G.R. Case No.853/2008 for reference."
4. It is the contention of the learned counsel for the petitioner that not only the learned S.D.J.M., Bargarh has followed a faulty procedure but also there has Page 3 of 8 // 4 // been total non-application of mind to the factual aspect of the case. According to him, when the dispute was of civil nature and the subject-matter was pending before other Forums, and when the police after due investigation returned the case as a mistake of law, the order passed by the learned S.D.J.M., Bargarh taking cognizance of the offences is bad both in fact and law. He further pointed out that the father of the petitioner being since deceased, no proceeding against him could have been instituted, and that taking of cognizance of offence under Section 448 of IPC is beyond the facts alleged by the complainant.
5. On the other hand, the learned counsel appearing for the complainant-opposite party submits that the materials on record show that the land was in cultivating possession of the complainant and that the learned S.D.J.M., Bargarh on proceeding with the case in right direction has taken cognizance of the offences on the basis of the materials placed before him under Chapter-XV of Cr.P.C. According to him, there is no Page 4 of 8 // 5 // ground for interfering with the proceedings legally instituted before the Court below.
6. The complainant has relied, inter-alia, on the order of the learned Executive Magistrate declaring the possession of the complainant over the land in dispute. The learned S.D.J.M., Bargarh on receiving the final report from police rightly invited protest from the Informant in adherence to the principle settled by the Apex Court in the case of Minu Kumari and another vrs. State of Bihar and others, reported in (2006) 4 SCC 359, and proceeded with the protest petition as per Chapter-XV of Cr.P.C. But, the direction issued by him to tag the complaint case with G.R. case is a patent error of procedure committed by him, inasmuch as when according to the police, there was no material to file charge-sheet against the accused persons, and the learned S.D.J.M., Bargarh impliedly accepted the said opinion/report of the police, nothing was left in the G.R. case to lay any basis to proceed against the accused persons. Since the learned S.D.J.M., Bargarh took cognizance of Page 5 of 8 // 6 // offences against the accused persons purportedly on the basis of the materials received in course of the proceeding under Chapter XV of Cr.P.C., it was the complaint case which prevailed upon the G.R. case. Assuming him to have found a case for the offences against the accused persons, he ought to have directed the complaint case (I.C.C. No.51 of 2009) to be proceeded with as per the procedure laid down for the prosecution instituted otherwise than on police report. To put in other words, it could have been his right approach had he directed the G.R. Case to be tagged with the complaint case and not vice-versa.
7. As pointed out by the learned counsel for the petitioner, it was never the complaint before the Magistrate that there was any house trespass punishable under Section 448 of IPC. In that view of the matter, the order of cognizance in so far as the same related to Section 448 of IPC reflects non- application of judicial mind. That apart, as per the copy of the death certificate produced by the learned counsel for the petitioners before this Court, Page 6 of 8 // 7 // Gobardhan Chhatar died on 14.03.2009, that is prior to the order of cognizance challenged in this case. Needless to mention that upon death of an accused, the proceeding, if any, against him stands abated automatically. Since the learned S.D.J.M., Bargarh while passing the order of cognizance has remained oblivious of the important aspects indicated above, the order dated 24.02.2010 passed in I.C.C. No.51 of 2009 needs interference. At the same time, this Court is not in agreement with the contention advanced on behalf of the petitioner that no case for any offence is prima- facie made out against him.
8. With the observation made and direction given as above, this CRLMC stands disposed of. The learned S.D.J.M., Bargarh is hereby directed to re-consider the order of cognizance in right perspective keeping in view the observation made hereinbefore. Since the matter is long dragged, the learned S.D.J.M., Bargarh shall do well to proceed with the matter expeditiously.
L.C.R. received along with a copy of this order be sent back forthwith.
Page 7 of 8
// 8 // As the restrictions due to resurgence of COVID- 19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
( S.Pujahari ) Judge MRS Page 8 of 8