Orissa High Court
Ram Gopal Khemka vs State Of Orissa on 13 October, 2020
Author: S.Pujahari
Bench: S.Pujahari
CORAM :- HON'BLE SHRI JUSTICE S.PUJAHARI
CRLMC NO.329 OF 2019
1. Ram Gopal Khemka, aged about 54 years,
S/o. Late Laxminarayan Khemka.
2. Avinash Khemka, aged about 27 years,
S/o. Ram Gopal Khemka.
Both are of Village- Rairangpur (T),
P.S.- Rairangpur, District- Mayurbhanj.
........ Petitioners
-Versus-
1. State of Orissa.
2. Dillip Kumar Agrawal, aged about 52 years,
Son of Ram Kumar Agrawal.
At/P.O/P.S.- Baragaon, Dist-Sundargarh.
........ Opp.parties
CRLMC NO.367 OF 2019
1. Sunita Khemka @ Devi, aged about 51 years,
Wife of Ram Gopal Khemka.
2. Payal Khemka, aged about 33 years,
D/o. Ram Gopal Khemka.
Both are of Village- Rairangpur,
P.S.- Rairangpur, District- Mayurbhanj.
........ Petitioners
-Versus-
1. State of Orissa.
2. Dillip Kumar Agrawal, aged about 52 years,
Son of Ram Kumar Agrawal.
At/P.O/P.S.- Baragaon, Dist-Sundargarh.
........ Opp.parties
ORDER
17. 13.10.2020 Both these matters having arisen out of the same case, i.e., G.R. Case No.21 of 2018 on the file of the learned S.D.J.M., Rairangpur corresponding to Rairangpur Town P.S. Case No.6 dated 15.01.2018, 2 have been heard together and are being disposed of by this common order.
2. Facts relevant for disposal of both the CRLMCs are as follows:-
The only daughter of one Dillip Kumar Agarwal, the Informant in this case, (hereinafter referred to as the „deceased‟) was given in marriage to Avinash Khemka (petitioner no.2 in CRLMC No.329 of 2019) on 28.04.2015. The deceased, who was blessed with a male child, however, sustained burn injuries on 12.01.2018 morning hour in her in-laws‟ house at Rairangpur in the district of Mayurbhanj and, as such, taken to Rairangpur Sub-Divisional Hospital for treatment. The doctor there immediately finding the deceased, a married woman, to have sustained burn injuries of 100% considered it to be MLC, as revealed from the record, intimated the police in Rairangpur Town Police Station. The S.I. of Police, namely, Sangita Dash on receipt of such information rushed to the hospital and got the statement of the deceased videographed immediately 3 in her mobile phone wherein the deceased stated to have disclosed that she burnt herself. The doctor finding the condition of the deceased to be serious, referred to the deceased to the District Headquarters Hospital, Mayurbhanj for better treatment. However, the father-in-law of the deceased and other family members took her to Tata Main Hospital at Jamshedpur. The Informant getting the news that his daughter to have sustained burn injuries from the father-in-law of the deceased, rushed towards Rairangpur. However, on his way to Rairangpur, came to know that the deceased has been shifted to Tata Main Hospital. Accordingly, he rushed to the Tata Main Hospital wherein he found his daughter to have sustained 90% burn injury and in critical condition. Therefrom the father of the deceased came back to Rairangpur and lodged a written report at Rairangpur Town Police Station on 13.01.2018 at about 5 A.M. In the said report, it has been alleged that four months after the marriage of her deceased daughter, she was meted with cruelty by her 4 husband, both parents-in-law and also her unmarried sister-in-law and she was even not allowed to talk privately over phone with any members of her parents‟ side, so also not allowed to visit her parents‟ home and only in one occasion she was allowed to visit the house of the informant in the company of her in-law members and stayed there for two to three days and returned. One day, i.e., three to four days before the last „Diwali‟, the father-in-law of the deceased had also made an attempt to kill the deceased by pushing her from the staircase, for which she had sustained injury on her head and admitted in Tata Hospital. The father-in-law of the deceased had also on many occasions sexually assaulted the deceased, sending his other family members, i.e., his son, wife and daughter outside and also extended threat to her not to disclose the same. Though the aforesaid matter was with the knowledge of the husband of the deceased, but he made no effort to rescue her, rather stated that he was not the father of the child of the deceased, for 5 which the deceased was depressed. Furthermore, lastly on 08.01.2018, the father-in-law sent his wife, son and daughter to Hyderabad for eye check-up of his daughter - Payal Khemka (petitioner no.2 in CRLMC No.367 of 2019) and in their absence, he sexually assaulted the deceased. However, soon after return of the husband when the deceased disclosed about such incident, her husband instead of redressal of her such grievance, threatened to kill her and her child on disclosure of the said incident before anyone. The deceased having no alternative, intimated the said fact to her brother - Bibek Agarwal and sister-in-law (Bhauja) - Renu Agarwal through WhatsApp messages. Thereafter, on 12.01.2018 at 8 a.m. to 8.30 a.m., the Informant got a message from the father-in-law of the deceased that his daughter sustained burn injuries. Getting the said news, the informant and his wife started their journey for Rairangpur, but on their way, they came to know that the deceased had been shifted to Tata Main Hospital for treatment. Then, the 6 informant along with his wife proceeded to Tata Main Hospital where they found their daughter to have sustained 90% burn injuries, where she disclosed with difficulty that as she disclosed the aforesaid misdeeds of her father-in-law through WhatsApp messages to her sister-in-law (Bhauja) and also her brother, they (accused persons) poured kerosene on her body and set her ablaze and their daughter was in critical condition in Tata Main Hospital. So also, it was alleged by the Informant that evidence had been wiped out by the accused persons by cleaning the incident spot to save themselves. Basing on the said written report, a case was registered vide Rairangpur Town P.S. Case No.6 dated 13.01.2018 under Sections 498-A/307/376(2)(f)/376(2)(n)/ 506/201/ 34 of IPC against the petitioners and investigation was taken up. Subsequently, when the deceased succumbed to the injuries in the Tata Main Hospital while undergoing treatment, the police arrested the father-in-law of the deceased, namely, Ram Gopal Khemka (petitioner no.1 in CRLMC No.329 of 2019) 7 and forwarded him to Court for alleged commission of offence under Sections 498-A/376(F)/376(2)(f)(n)/ 506/201 read with Section 34 of I.P.C. However, subsequent to the same, the husband of the deceased, namely, Avinash Khemka (petitioner no.2 in CRLMC No.329 of 2019) taking note of the alleged dying declaration of the deceased stated to have been made before the S.I. of Police at Rairangpur Hospital, was forwarded to the Court under Sections 498-
A/306/34 of IPC and continued with investigation.
3. On completion of investigation, charge-sheet no.18 dated 14.03.2018 nomenclating it to be „preliminary‟ was filed against both the aforesaid petitioners in CRLMCNo.329 of 2019 indicating the commission of offence by Ram Gopal Khemka, father-in-law of the deceased under Sections 376(2)(f)/498-A/306/201 read with Section 34 of IPC and his son - Avinash Khemka, the husband of the deceased under Sections 498-A/306/201 read with Section 34 of IPC keeping the investigation open under Section 173(8) of Cr.P.C. pending arrest of the 8 mother-in-law and the sister-in-law of the deceased who were absconding. The learned S.D.J.M., Rairangpur on receipt of such charge-sheet, perusing the materials on record, vide the order dated 17.03.2018 passed in the aforesaid G.R. Case while taking cognizance disagreed with the Investigating Officer‟s opinion that it was a case of 306 of IPC as stated in the charge-sheet, but held it to be a case under Sections 498-A/302/376(f)(n)/201 read with Section 34 of IPC and, accordingly, held the offence under Sections 498-A/302/376(F)(n)/201 read with Section 34 of IPC prima-facie available against Ram Gopal Khemka and under Sections 498-A/302/201 read with Section 34 of IPC against petitioner no.2 - Avinash Khemka. In the same G.R. Case, pursuant to the charge-sheet No.64 dated 31.08.2018 being nomenclated as "Final Charge-sheet", the learned S.D.J.M. vide the order dated 20.09.2018 has held that prima-facie the offences under Sections 498-A, 302, 201/34 of IPC are there against both the petitioners in CRLMC No.367 of 2019. The accused- 9 petitioners have, as such, invoked the jurisdiction of this Court under Section 482 of Cr.P.C. in both the CRLMCs for quashing of the aforesaid orders of cognizance passed respectively against them.
4. I have heard the learned counsel appearing for the petitioners, learned counsel for the opposite party No.2-Informant and the learned Standing counsel for the opposite party No.1-State. Also perused the F.I.R., charge-sheets and other relevant papers in the lower Court record made available to this Court, so also the Forensic Laboratory report on the contents of WhatsApp those were there in different mobile handsets seized and sent for Forensic examination which was produced by the parties when the case was taken up for further hearing for some clarifications from the parties, after the order was reserved.
5. It is the contention of the learned counsel for the petitioners that the materials produced by the Investigating Officer, even at their face value, being not capable of making out any prima-facie case for 10 the offences taken cognizance of, the impugned orders are not sustainable either in fact or in law. However, learned counsel appearing for the petitioner is more critical of the cognizance of the offence under Section 376(2)(f)(n) of IPC, inasmuch as according to him, there was no credible materials on record to make out such a case in the absence of any specific allegation with regard to the exact time and place of sexual assault, which is requirement while giving notice to them or the charge allegedly by the father-in-law. It is submitted that the trial Court in absence of any such credible statement of the deceased made to Renu Agarwal through WhatsApp or otherwise the learned S.D.J.M. could not have placing reliance on some vague statement of Renu Agarwal proceeded against the petitioner - Ram Gopal Khemka for offence under Section 376(2)(f) of I.P.C., more particularly when no hard copy of such WhatsApp message was filed with the charge-sheet nor the mobile handset containing the soft copy of the same was produced before the S.D.J.M. at the 11 time of filing of the charge-sheet substantiating the same. In this regard, he has drawn notice of this Court to the rejection of the copy application of the petitioners seeking for supply of hard copy of WhatsApp chart, if any, and also the Compact Disc (C.D.) containing the dying declaration which has been rejected on 10.01.2019 indicating the reasons that the WhatsApp messages were not available in the record and the C.D. was in a sealed cover. It is further contended that even if in the Forensic report collected in the meanwhile, some charts between the deceased stated to have been made with her sister- in-law, i.e., Bhauja and brother - Bibek Kumar Agarwal have been retrieved from the handsets stated to have been used by Renu Agarwal and Bibek Agarwal, the aforesaid evidence is not credible and is also no evidence in the absence of any evidence that those WhatsApp charts retrieved were actually received from the deceased or sent to the deceased. Admittedly, no WhatsApp chart was found in the mobile handset of the deceased or retrieved in the 12 Forensic examination of the said handset with which Renu Agarwal and Bibek Kumar Agarwal stated to be in communication through WahtsApp. Therefore, there is no material to corroborate the evidence of Renu Agarwal and Bibek Kumar Agarwal that the deceased had made some WhatsApp charts indicative of threat to her life or sexual assault on her. Furthermore, the statement of Renu Agarwal that the deceased had made WhatsApp chart with her which were retrieved from her mobile handset is also not worthy of credence, inasmuch as from the mobile handset of Renu Agarwal, the Forensic Laboratory found a video message to have been sent on 26.01.2018, i.e., after the death of the deceased. In such premises, it is submitted that the Court should not have taken cognizance of the offence under Section 376(2)(f)(n) of IPC. He has also questioned the cognizance taken of the offence under Section 302 of IPC in absence of any material indicating a homicidal death and also in presence of material collected during investigation disclosing a 13 case of self-immolation as the deceased stated before the S.I. of Police in the hospital that she herself poured kerosene on her body to immolate her, disagreeing with the police report that it is a case under Section 306 of IPC that too without assigning any reasons for such disagreement with the opinion formed by the police in the report under Section 173(1) of Cr.P.C. indicating it to be a case under Section 306 of I.P.C.. Therefore, there being absolutely no material to proceed against the accused persons in any of the offences much less for the offence under Section 376(2)(f) of IPC against accused - Ram Gopal Khemka and also under Section 302 of IPC against all, the continuance of the proceeding against the petitioners shall be an abuse of the process of the Court and, as such, the cognizance taken vide the impugned orders and the consequential proceedings are liable to be quashed, is the submission of the learned counsel for the petitioners.
14
6. Per contra, the learned counsel for the State submits that the proceeding before the Court below being at its threshold, the learned S.D.J.M. at this stage was not supposed to make any threadbare analysis of the materials on record, and the impugned orders having been passed by him on taking a prima-facie view of the materials placed by the Investigating Officer, no interference is called for by this Court under Section 482 of Cr.P.C.
7. The learned counsel for the opposite party no.2 has echoed the submission advanced on behalf of the State, and further submitted that there is material to indicate that the WhatsApp message was sent by the deceased to her sister-in-law - Renu Agarwal, brother - Bibek Kumar Agarwal which is indicative of the fact that the deceased was subjected to sexual assault by her father-in-law. The Investigating Officer in this case has also seized the mobile phone of the deceased and her husband, so also mobile phone of Renu Agarwal as well as the brother of the deceased, namely, Bibek Kumar 15 Agarwal. No doubt, from the mobile phone of the deceased, all the charts between her with her sister- in-law as well as her husband and her brother were deleted, so also from the mobile handset of her husband all the charts with the deceased were deleted, but from the mobile handsets of the sister- in-law and brother of the deceased, screenshot of the contents of some chart with the deceased were taken and seized during the seizure of their phones and submitted to the Court by the I.O., as revealed from the materials on record. Therefore, the statements of Renu Agarwal and the brother of the deceased with regard to the deceased making disclosure before them about the sexual assault made on her by the father-in-law through WhatsApp messages / WhatsApp charts, cannot be said to be vague one and without any substance. The accused-petitioner - Ram Gopal Khemka also confessed the same before the police. Furthermore, it is also submitted that there is ample material with regard to the torture on the deceased, as revealed from the statement of the 16 witnesses and also the death of the deceased sustaining burn injuries. The WhatsApp message also indicates that the deceased was expecting the threat to life on disclosure of such sexual assault. There are other materials on record disclosing the commission of the offence, for which cognizance has been taken and, as such, cognizance taken of offences cannot be said to be without any substance. Furthermore, in the meanwhile the Forensic Report also obtained and the WhatsApp charts which were there in the mobile handset of Renu Agarwal and Bibek Agarwal with the deceased were retrieved, but no charts could be retrieved from the mobile handset of the deceased and her husband as those were deleted. The said charts support the order of cognizance. However, the Court while taking cognizance of the offence under Section 302 of IPC, even if charge-sheet was not filed for the said offence, but disclosed it to be a case under Section 306 of IPC though have not bereft of jurisdiction for the same, but the Court ought to have assigned the 17 reasons and could not have proceeded without assigning the reasons for the same. But, there being sufficient materials disclosing prima-facie the commission of the offences, for which cognizance has been taken, this Court should not interfere with the same in exercise of the power under Section 482 of Cr.P.C., is the submission of the learned counsel for the opposite party no.2-Informnat.
8. Perused the materials available in the L.C.R., so also the Forensic report filed. The materials available on record indicate that the deceased sustaining burn injuries in her in-laws‟ house admitted in the Sub-Divisional Hospital, Rairangpur, and smell of kerosene then was emitting out from her body. The doctor finding it to be of Medico Logical case intimated to the local police. The S.I. of Police then rushed to the hospital and stated to have videographed the statement of the deceased in her mobile phone. Thereafter, the deceased was shifted to Tata Main Hospital where she succumbed to the injuries sustained while undergoing treatment. The 18 father of the deceased lodged the report making the allegation, as stated in the F.I.R. before the death of the deceased. The Case Diary also reveals that on the very date of information at about 5.30 a.m., the hard copy of the screenshot of WahtsApp messages stated to be containing the WhatsApp messages between the deceased and her husband forwarded to Renu Agarwal by the deceased were also seized by the police on production by the informant and seizure list was prepared in presence of the witnesses. The statement of the witnesses, such as, father and mother of the deceased and her other relations including Renu Agarwal and Bibek Agarwal which indicates that the deceased was subjected to cruelty and also her father-in-law sexually assaulted her and threat was extended to kill her. So also, the F.I.R. and statement of the informant disclose that the deceased made dying declaration before him in the hospital that she was burnt by her in-laws for disclosure of the aforesaid misdeeds. The mobile handsets of Renu Agarwal as well as Bibek Agarwal 19 were also seized by the police on 03.02.2018 along with the hard copy of the screenshots of WhatsApp messages of them with the deceased, as revealed from the seizure list. So also, the mobile handsets used by the deceased and her husband were seized from the possession of the husband of the deceased, as revealed from the seizure list. However, those mobile handsets did not find any WhatsApp charts / messages between the deceased with Renu Agarwal as well as Bibek Agarwal, so also the husband of the deceased and all charts were deleted. Furthermore, in this case, postmortem report has also been received indicating the deceased died of hemorrhaganic shock arising out of burn injuries sustained. The confessional statement of the accused
- Ram Gopal Khemka made before the police indicates that he committed rape on the deceased. The other statements of the witnesses also recorded till the filing of the Charge-sheet No.18 nomenclating the same to be the preliminary charge-sheet against the petitioners in CRLMC No.329 of 2019. The said 20 charge-sheet filed revealed that the hardcopy of screenshots seized was part of the record though the mobile handsets seized were kept in the Police Station. The mobile handset of the I.O. and the extract where she stated to have captured the videograph statement of the deceased, was not produced along with the record. But, strangely enough, though the seizure lists are available, but the hard copy of the screenshots seized as part of the record, as revealed from the charge-sheet, is not part of the record submitted to this Court. Subsequently, the charge-sheet nomenclating the same to be final charge-sheet, was filed against all four accused persons. However, the Court on filing of the preliminary charge-sheet passed the order as stated earlier, so also the subsequent order on filing the same. In the meanwhile the mobile handsets of the deceased and her husband as well as Renu Agarwal and Bibek Kumar Agarwal seized have been examined by the Forensic Laboratory, so also the extract in the C.D. and the contents of the mobile 21 handset of the I.O. in which the statement of the deceased was videographed, have been seized. From such examination it is found that there were communications between the deceased preceding two days of the date of incident with her sister-in-law
- Renu Agarwal, who happens to be the wife of the first cousin and also the cousin brother - Bibek Agarwal with the contents which suggests that she was subjected to sexual assault by her father-in-law and also the deceased apprehending threat to her life from the in-laws on disclosure of the same. Some charts were also advised to be deleted. The charts from the mobile handset of the deceased to these two mobile handsets and also her husband, however, have been deleted, so also a video chart on 26.01.2018 after death of the deceased which was received from the said handset of the deceased was again sent by Renu Agarwal to mobile handset of the deceased then not seized. The said video contents could not be read. In the aforesaid factual backdrop and the settled position of law, the contention 22 advanced by the parties regarding sustainability of both the impugned orders of cognizance and the proceeding against the petitioners has to be addressed.
9. Before addressing the contention of the parties, it would be apposite to mention that opinion formed by the police on conclusion of an investigation taken up on registration of an F.I.R. under Section 154 of Cr.P.C. while filing the report under Section 173(1) of Cr.P.C. before the jurisdictional Magistrate is not binding to him, is well settled in law in a line of decisions of the Apex Court. The oft-quoted decision in this regard is in the case of Abhinandan Jha and others vrs. Dinesh Mishra, reported in 1968 AIR 117 (SC). The law laid down in the said case has been followed in many subsequent decisions by the Apex Court. In the case of Abhinandan Jha (supra) it has been held that different options are available to the Magistrate empowered under Section 190 of Cr.P.C. when a report is laid before him under Section 173(1) of Cr.P.C. In the said case it has also 23 been held that the Magistrate on receipt of such report has to consider the said report and judiciously take a decision whether or not to take cognizance of the offence, irrespective of the fact whether police has filed charge-sheet or final report. The learned Magistrate also then can direct further investigation, if not convinced that the investigation has been done properly. Therefore, even if charge-sheet is filed against some persons forming an opinion that offences have been committed by them, it is open to the Magistrate to say that there is no sufficient evidence to justify an accused being put on trial. On the other hand, if the Magistrate agrees with such report in the charge-sheet submitted and proceed further, then it can be said that he has taken cognizance of the offence. Such a wide power has been provided to the Magistrate under Section 190 of Cr.P.C. to secure that no offence go unpunished, even if persons aggrieved in a case individually are unwilling and unable to prosecute and the police wantonly or bonafidely failed to submit a report 24 stating out the facts constituting the offence. So also, the same empowers the Magistrate to protect the innocents who are challaned by the police without any material indicating the commission of an offence.
10. Though Section 190 of Cr.P.C. empowers the Magistrate for taking cognizance, but in the case of Ajit Kumar Polit vrs. State of West Bengal, reported in AIR 1963 S.C. 765, the Apex Court have held that the word „cognizance‟ has no esoteric or mystic significance in criminal law or procedure. It merely means to become aware of and when used with reference to a court or Judge to take notice of judicially. The legal position is further explained in the case of Tula Ram vrs. Kishore Singh, reported in AIR 1977 S.C. 2401, wherein the Apex Court have held that "there is no special charm or any magical formula in the expression. "Taking cognizance"
which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to take further action. Thus, 25 what Section 190 contemplates is that the Magistrate takes „cognizance‟ once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations". Therefore, "taking cognizance‟ implies application of judicial mind for the purpose of finding out whether an offence has been committed or not and the same is a judicial process and not a clerical one. The Magistrate, therefore, has to apply its mind when a police report is filed under Section 173(1) of Cr.P.C. whether or not prima-facie the same discloses the commission of offences and if so, what offences are stated to have been prima-facie made from the record and to proceed against accused, against whom incriminating materials have been collected indicating their involvement irrespective of the fact that whether they are challaned by the police or not or the opinion formed by the police. For the aforesaid, the Magistrate is not required to weigh the materials placed meticulously nor it is required to 26 examine the veracity or reliability of the incriminating materials / evidence collected appreciating the same. It is only when the evidences are adduced by the witnesses and the documents are proved, its veracity can be tested.
11. In such factual backdrop and also the settled position of law with regard to taking of cognizance, it is to be seen whether the cognizance taken in this case by the S.D.J.M. for proceeding in the matter and also against the accused persons for the offences they alleged to have committed, on receipt of the police report, was justified or not. It is the contention of Mr. H.S. Mishra, the learned counsel appearing for the petitioners that absolutely there is no credible material in this case to proceed with the same, inasmuch as the evidence that is produced, are absurd and also unreliable one, rather evidence adduced discloses that the deceased for the reasons known to her committed suicide by burning herself, as revealed from the statement videographed by the Investigating Officer. To substantiate the same, Mr. 27 Mishra has drawn notice of this Court to the facts, as stated earlier and, as such, he has submitted to invoke the jurisdiction of this Court under Section 482 of Cr.P.C., as otherwise continuance of the proceeding shall be an abuse of the process of the Court/law. The same has been controverted by the learned counsel for the State as well as the learned counsel for the opposite party no.2-informant to be without any substance in view of the materials available on record.
12. To address the contention of the learned counsel for the parties regarding invoking the jurisdiction of this Court under Section 482 of Cr.P.C. to quash the order of cognizance and the consequential proceeding against the accused persons, it would be apposite to mention here that the inherent power as envisaged in Section 482 of Cr.P.C. to quash the proceeding is an exception, rather than a rule and the case of quashing at the initial state must have to be made in the rarest and 28 rare case so as not to scuttle the prosecution at the threshold. The Apex Court dealing with such inherent power under Section 482 of Cr.P.C. which corresponds to Section 561A of the old Code to quash the proceeding against the accused, in the case of R.P. Kapur vrs. The State of Punjab, reported in 1960 AIR 862 (SC), have held as follows:-
"xxxxx xxxxx It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, 29 for instance, furnish cases under this category. Cases may also arise where the a11egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no ques- tion of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magis- trate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and' contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar (1), Jagat Ohandra Mozumdar v. Queen Empress (2 ), Dr. Shanker Singh v. The State of Punjab (3 ), Nripendra Bhusan Ray v. Govind 30 Bandhu Majumdar(4 ) and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar (5).) xxxxx"
[Underlining are made by me]
13. The aforesaid proposition of law has been followed in line of decisions thereafter rendered by the Apex Court while sitting in appeal against the order passed under Section 482 of Cr.P.C. by different High Courts for quashing of cognizance/proceeding. Keeping the aforesaid law in mind, when the case in question is addressed, it appears to this Court that the submission of Mr. Mishra, learned counsel for the petitioners that absolutely there is no material indicating the commission of the offences, appears to be without any substance as the same is contrary to the materials produced with the charge-sheet by the I.O. before the learned S.D.J.M. The materials on record, particularly the evidence of the relations of the deceased, i.e., parents of the deceased, sister-in-law - Renu Agarwal as well as her brother - Bibek Agarwal prima-facie disclose the commission of the offences, which the learned Magistrate has taken note of, bereft of the 31 confessional statement of accused-petitioner - Ram Gopal Khemka, which is legally impermissible to be taken into consideration with regard to sexual assault made by him on the deceased, made while in the custody of the police. The learned S.D.J.M., therefore, relying on such evidence/statement of the relations of the deceased having taken cognizance and decided to proceed against the accused persons in this case, it cannot be said that in absence of the screenshots of the WhatsApp messages, such an order taking cognizance of the S.D.J.M. is without any substance. The hard copy of screenshots of WhatsApp messages seized indicating a communication between the deceased and her husband which was forwarded to Renu Agarwal by the deceased, was seized soon after the F.I.R. and seizure list was prepared, as revealed from the case diary. The same also stated to have been submitted to the Court and from part of the record. So also, the hard copy of the screenshots of WhatsApp messages from the mobile handset of Renu Agarwal and also Bibek Agarwal indicating their communication of them with the deceased in the immediate two 32 preceding days of the alleged incident, which is the indicative of such a sexual assault on her and suggesting communication of the same to her husband was seized along with the seizure of the mobile handset as revealed from the seizure list dated 03.02.2018. But, conspicuously though the seizure lists are available, but the hard copies of such screenshots are not there in the photocopy of the L.C.R. submitted by the Court below to this Court, even if the charge-sheet submitted disclosed the same were part of record. The copy application which indicates that no such charts were available in record was filed on 10.01.2019, i.e., subsequent to the cognizance taken. The bonafide of entry of non-availability of the same on the record by the Dealing Assistant concerned is doubtful, inasmuch as it is visible to the naked eye at the first instance, in such rejection of copy application of the petitioners, it is written that such documents cannot be supplied, but later on entry has been made in the limited available space above the same that those documents are not available in the record and contents of the dying declaration videographed by the I.O. in her 33 mobile handset later on extracted in computer disc is in a sealed envelope, though such compact disc by then was already sent to the Forensic Laboratory, as revealed from the forwarding letter dated 05.07.2018. As such, definitely it cannot be said that there was no hard copy of screenshots of the WhatsApp messages seized in this case at the time of filing of charge-sheet before the learned Magistrate. From the aforesaid, it can very well be said that some unforeseen hands are meddling with the record in this case. Otherwise also, the statement of the relations of the deceased prima- facie discloses commission of the offence of torture and other offences including sexual assault and also murder of the deceased. No doubt, contrary evidence is stated to have been collected by the I.O., i.e, the statement of the deceased soon after the alleged incident indicating of the suicide, as such, charge- sheet under Section 306 of IPC, but the hard copy of the transcript of that dying declaration videographed was not there nor soft copy was there with the charge- sheet then before the learned S.D.J.M.. Only the statement of the witnesses present while recording the 34 same was there. The learned S.D.J.M. looking into such materials on record when decided to proceed under Section 376(2)(f)(n) of IPC against accused - Ram Gopal Khemka and Sections 498-A/302/201 read with Section 34 of IPC against all the accused persons, it cannot be said that the cognizance taken by the learned S.D.J.M. and proceeding for the aforesaid offences to be based on surmises and conjectures, so also a mechanical one. Otherwise also, in the meanwhile the Forensic examination of the mobile handset, which was there in the Police Station and sent later as well as the extract of the statement of the deceased indicates that there was communications. In this case, it appears that except the statement of accused - Ram Gopal Khemka confessing guilt before the police, the other evidence is legally admissible. Veracity of such version can only be tested by the trial court not by the Magistrate who is simply taking cognizance in a case triable by the Court of Session and to commit the case for trial. There were ample legally admissible materials before the learned S.D.J.M. to take cognizance of the offences suspected to have 35 been committed and also the involvement of the accused persons in commission of such offences. The entire contention of Mr. H.S. Mishra, learned counsel for the petitioners is to appreciate the credibility of such version of the witnesses scrutinizing the materials available on record and interfere with the order of cognizance. It is never the case of Mr. Mishra that those evidences of the relations are legally inadmissible and does not disclose the commission of any offence. His whole contention is to scrutinize the credibility of such versions and the materials to come to a conclusion that no case was made out to proceed against the petitioners. However, the learned S.D.J.M. at this stage being not required to scrutinize the evidence in detail but to take a prima-facie view taking note of the evidences/materials collected which are legally admissible, to proceed further in the matter and not to make a detailed documentation and appreciation of the same, the order of the learned S.D.J.M., as such, cannot be said to be bad on the grounds stated by the learned counsel for the petitioners. This Court also while exercising the power under Section 482 of 36 Cr.P.C. to examine the correctness of the cognizance taken and the proceeding against the accused persons cannot make a critical appreciation of such evidence which are legally admissible with regard to its reliability in view of the law laid down in the case of R.P. Kapur (supra). Otherwise also, any detailed appreciation and comment on the same by this Court on such evidence and rendering a finding is likely to prejudice the case of the petitioners in the trial Court which is the Court subordinate of this Court in the different subsequent stages of this case, more particularly when the case is going to be committed to the Court of Sessions which then have also to take a judicious decision at the stage of Sections 227 and 228 of Cr.P.C. A contention has been advanced on behalf of the petitioners that non-supply of copy has caused prejudice to the petitioners in view of the mandate of Section 207 of Cr.P.C. and, as such, order of cognizance is liable to be quashed, appears to this Court to be farfetched one and a proceeding cannot be quashed on that ground, more so when the same is not 37 required to be supplied at that stage.
14. So far as the contention of the learned counsel for the petitioners that without assigning any reason since the cognizance has been taken for commission of offence under Section 302 of IPC differing with the opinion of the police, such cognizance cannot be sustained on that ground also appears to be fallacious notwithstanding the concession of the learned counsel for the opposite party no.2- informant. The statute never mandates that the Court has to record the reasons for the same. It is only in the circumstance when the Court on receipt of police report under Section 173(1) of Cr.P.C. decides to proceed in the matter contrary to the allegation made by the informant which is likely to aggrieve the informant, it is required to give notice to the informant and also pass a speaking order. Here in this case, the aforesaid decision of the S.D.J.M. to proceed under Section 302 of IPC is no way affects the informant. The same has also caused no 38 prejudice to the petitioners, inasmuch as cases against the petitioners are triable by the Court of Sessions and the Magistrate has to commit their case and the Sessions Court, therefore, has also to scrutinize the materials on record afresh before taking a decision to ask the accused persons / petitioners in this case to face the trial for such offence. The trial Court concerned then has to make an independent assessment of the same taking note of the contention advanced by the accused- petitioners sent up to the Court of Session for trial by the learned S.D.J.M., Rairangpur. The trial Court concerned has no binding tie with such order of the learned S.D.J.M. taking a prima-facie view regarding commission of any particular offence by any of the accused as it has to independently deal with the evidence / incriminating materials placed after hearing the prosecution and the accused on the same and then take a judicious decision while dealing with the question of framing of charge. 39
15. Accordingly, both the CRLMCs filed challenging the impugned order of cognizance, so also the prosecution being devoid of merit stand dismissed.
The parties may utilize the copy of this order as per the High Court‟s Notice No.4587 dated 25.03.2020.
..............................
S.Pujahari, J.
MRS 40