Orissa High Court
Manjulata Swain vs State Of Orissa on 24 October, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV NO. 593 of 2016
From the order dated 31.05.2016 of the S.D.J.M.(Sadar),
Cuttack passed in G.R. Case No.1373 of 2015.
----------------------
Santosh Kumar Roul
@ Srimad Sarathi Dev
@ Sarathi Baba ......... Petitioner
-Versus-
State of Orissa ......... Opp. Party
For Petitioner: - Dr. Susant Kumar Kanungo
Manoranjan Sahoo
For Opp. party: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
CRLREV NO. 491 of 2016
Manjulata Swain ......... Petitioner
-Versus-
State of Orissa ......... Opp. Party
For Petitioner: - Mr. Manas Chand
M. B. Patra
R. R. Mishra
For Opp. party: - Mr. Janmejaya Katikia
Addl. Govt. Advocate
---------------------
2
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Argument: 23.09.2016 Date of Judgment: 24.10.2016
---------------------------------------------------------------------------------------------------
S. K. Sahoo, J." NAHAM TISTHAMI VAIKUNTHE YOGINAM HRIDAYE NACHA MADBHAKTA YATRA GAYANTI TATRA TISTHAMI NARADA"
In the simplest form, Bhagwan tells Narada about his place of abode, "O Narada! My celestial home is not in Vaikuntha, nor in the hearts of Yogis. Wherever my devotees sing my name, I dwell there."
The relationship between God and His devotee is pure, unselfish and honest. God responds to His true devotee if there is sincerity in his prayer. To get divine pleasure, a devotee sacrifices all the worldly relations, pleasures and possessions. Babas or spiritual gurus come in between God and devotee. Sometimes they project themselves as the incarnation of God and sometimes as a via media to approach God. It is said that a spiritual Guru opens up the eyes of a disciple by applying divine collyrium of self-knowledge which had got blinded by the cataract of ignorance for which the disciple salutes his reverential teacher.
3
"Agyana Timirandhasya Gyananjana Shalakaya Chakshur Oonmilitam Yena Tasmai Shri Gurave Namah"
What sort of character a devotee expects from his spiritual Guru? Beauty is fortified by good character. A spiritual Guru in true sense possesses strong personality, simple life style and astounding experience in the spiritual path. A crafty devilish and false character man cannot even cross the first step towards spiritual salvation. It requires a patient sincere dedicated incessant effort to achieve success in the spiritual journey.
The fact of the case is neither a nightmare nor a fairy tale. The accusations unfold the reality of a much-hyped Baba who claimed himself possessing divine power like Lord Krishna. The followers of Baba who were once mesmerized by his well- articulated Pravachan, singing of bhajans, simple custom made dresses and magical miracles could not believe when the fourth pillar of Indian democracy placed the Baba in different flavours and that to in an unexpected place in an unexpected company. They sighed in utmost despair, "This is ghor Kaliyug!!!"
The petitioner Santosh Kumar Roul @ Srimad Sarathi Dev @ Sarathi Baba in CRLREV No. 593 of 2016 has challenged the order taking cognizance of offences under sections 384/ 506/ 4 211/ 120-B/ 342/ 343/ 365/ 508/ 34 of the Indian Penal Code read with section 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 (hereafter '1989 Act') and issuance of process against him and the petitioner Manjulata Swain in CRLREV No. 491 of 2016 has challenged the order taking cognizance of offences under sections 384/ 506/ 211/ 120-B/ 34 of the Indian Penal Code and issuance of process against her passed by the learned S.D.J.M. (Sadar), Cuttack in G.R. Case No.1373 of 2015 vide common order dated 31.05.2016 which arises out of CID, CB, Cuttack P.S. Case No. 19 of 2015.
Since both the revision petitions arise out of a common order, with the consent of the parties, those were heard analogously and are being disposed of by this common judgment and order.
2. CID, CB, Cuttack P.S. Case No.19 of 2015 was registered on 14.08.2015 under sections 384/ 506/ 211/ 120-B read with section 34 of the Indian Penal Code against petitioner Sarathi Baba, Mili and one unknown lady on the first information report submitted by the victim "RM". After completion of investigation, charge sheet was submitted on 28.11.2015 under sections 384/ 506/ 211/ 120-B/ 342/ 343/ 347/ 365/ 508/ 34 of 5 the Indian Penal Code and section 3(2)(v)(vi) of 1989 Act against the petitioners Sarathi Baba, Manjulata Swain @ CBI Madam and one Mili @ Subhalaxmi Pati.
On receipt of such charge sheet, the learned S.D.J.M. (Sadar), Cuttack on 28.11.2015 took cognizance of offences under sections 120-B/ 384/ 211/ 506/ 508/ 34 of the Indian Penal Code and section 3(2)(v)(vi) of 1989 Act and issued process against the petitioners and co-accused Mili @ Subhalaxmi Pati.
The petitioner Manjulata Swain challenged the aforesaid order 28.11.2015 before this Court in CRLREV No.98 of 2016 and this Court vide order dated 13.05.2016 has been pleased to set aside the order of cognizance and remitted the matter back to the learned S.D.J.M. (Sadar), Cuttack to address the order of cognizance afresh looking into the materials on record. This Court further observed that the order shall not prevent the learned S.D.J.M. (Sadar), Cuttack to take cognizance for any offences, even if police has not filed charge sheet alleging the same, if on scrutiny the Court finds the same to have been committed by any of the accused persons.
The learned S.D.J.M. (Sadar), Cuttack as per the direction and observation of the order dated 13.05.2016 passed 6 in CRLREV No.98 of 2016, considered the matter afresh and has been pleased to observe that the ingredients of the offence under section 3(2)(v) of the 1989 Act are not attracted. Similarly it was observed that the materials on record do not constitute the offence under section 3(2)(vi) of the 1989 Act against petitioner Sarathi Baba, however, it was held that the ingredients of the offence under section 3(1)(w)(i) of 1989 Act is well made out against petitioner Sarathi Baba and accordingly, the impugned order was passed observing that there are sufficient materials to proceed against the petitioner Sarathi Baba under sections 384/ 506/ 211/ 120-B/ 342/ 343/ 365/ 508/ 34 of the Indian Penal Code read with section 3(1)(w)(i) of the 1989 Act for taking cognizance of such offences. It was further held that there are sufficient materials to proceed against the petitioner Manjulata Swain @ CBI Madam and Mili @ Subhalaxmi Pati under sections 384/ 506/ 211/ 120-B/ 34 of the Indian Penal Code for taking cognizance of such offences.
3. On 14.08.2015 the victim RM who was a student of 8th Semester M.B.B.S. and prosecuting her studies at S.C.B. Medical College, Cuttack staying in the college hostel, lodged the First Information Report before the Superintendent of Police, CID, CB, Odisha, Cuttack stating therein that on 07.08.2015 she 7 received a number of phone calls for which she was mentally upset. Relating to her visit to Hyderabad on 05.08.2015, she was under severe tension for which she kept her friend Smruti Pragyna Sanhita with her. It is stated that in between 2.00 to 2.30 p.m. on 7.8.2015, a phone call came to Smruti. One Milli Appa who was previously known to the victim told the victim to talk with the CBI Madam over phone. CBI Madam told the victim that her life was in danger and eight lakh rupees have been paid to the hostel authorities to kill her and further informed her that Nandi, Khageswar Rout, Kailash Mallik and Kishore Mallik have prepared themselves to kill her. Believing the version of CBI Madam and Milli Appa to be correct, the victim prepared a letter but she was not aware that it would be registered as First Information Report. The victim handed over such letter to her friend Smruti who in turn handed over the same to Milli Appa. At about 9.00 p.m., Inspector in charge of Mangalabag Police Station came to her where after she came to know that her letter has been presented before the Police Station. It is further stated by the victim in the F.I.R. that she had no complain whatsoever against those four persons who were named in her letter. She further stated that petitioner Sarathi Baba was giving repeated threat to her to kill her and to ruin her entire family so that they 8 would beg on the streets. When Hyderabad incident was telecasted, Sarathi Baba was repeatedly cautioning the victim not to watch the television and asking her to inform her family members not to watch television. Sarathi Baba also asked the victim to inform the media people that she took him to Hyderabad forcefully and that she was an adult and can move on her own sweet will. The victim further stated in the F.I.R. that due to fear of the petitioner Sarathi Baba and apprehending danger to her family, she made incorrect statements before the media people.
On receipt of such First Information Report, since it revealed a cognizable case under sections 384/ 506/ 211/ 120-B read with section 34 of the Indian Penal Code, the Superintendent of Police CID, CB, Odisha, Cuttack directed the I.I.C., CID, CB police station to register the case and accordingly CID, CB, Odisha, Cuttack P.S. Case No.19 dated 14.8.2015 was registered under sections 384/ 506/ 211/ 120-B read with section 34 of the Indian Penal Code. The investigation of the case was entrusted to Inspector Mamata Rani Panda.
During course of investigation, the I.O. examined the victim RM, her parents, her brother, her friend Smruti and other material witnesses and recorded their statements. The statement 9 of the victim was also recorded under section 164 Cr.P.C. by J.M.F.C., Rural, Cuttack. The call detail records in respect of the mobile phone used during the alleged transactions were collected from the competent authority along with other material correspondence. The material evidence relating to the stay of the petitioner Sarathi Baba along with the victim at Hotel Golkonda of Hyderabad was collected by the Investigating Officer. The charge of the investigation was taken over by Sri Ramesh Ch. Sethi, Deputy Superintendent of Police, CID, CB with effect from 16.10.2015 as per the office order No.165-A/CID dated 15.10.2015. The I.O. collected materials from the Tahasil office, Derabis and Tirtol as regards the caste status of victim as well as petitioner Sarathi Baba which revealed that the petitioner Sarathi Baba is Brahmin by caste and the victim RM hails from scheduled caste community and her sub-caste is 'Kandara'. From the materials collected during investigation, the Investigating Officer came to know that the petitioner Sarathi Baba had been to Hotel Golkonda at Hyderabad along with the victim lady and by inducing her in deceitful means, he confined her in hotel rooms for about five days, criminally intimidated her and to her family members, abducted her and put her in wrongful confinement, threatened her in the name of divine displeasure and got a paper 10 written from her by way of criminal conspiracy to use the same as a valuable security. The I.O. found prima facie case under sections 384/ 211/ 506/ 120-B read with section 34 of the Indian Penal Code against CBI Madam @ Manjulata Swain (petitioner in CRLREV No.491 of 2016) and accused Mili @ Subhalaxmi Pati and under sections 120-B/ 384/ 211/ 506/ 508 read with section 34 of the Indian Penal Code and section 3 (2)(v)(vi) of 1989 Act against petitioner Sarathi baba and accordingly charge sheet was submitted on 28.11.2015.
4. On 28.11.2015 the learned S.D.J.M. (Sadar), Cuttack on perusal of the F.I.R., charge sheet and other documents submitted by the Investigating Officer was of the view that prima facie case is well made out under sections 120-B/ 384/ 211/ 506/ 508/ 34 of the Indian Penal Code and 3(2)(v)(vi) of 1989 Act and accordingly, took cognizance of such offences and issued process against three charge sheeted accused persons including the petitioners Sarathi Baba and Manjulata Swain. The order of cognizance was set aside in CRLREV No.98 of 2016 by this Court and as per the direction, it was reconsidered by the learned S.D.J.M. (Sadar), Cuttack and the impugned order was passed.
It is pertinent to note that the letter of the victim which was written at the instance of CBI Madam @ Manjulata 11 Swain and Mili Appa @ Subhalaxmi Pati and handed over to her friend Smruti who in turn handed over the same to Milli Appa @ Subhalaxmi Pati was presented before Inspector in charge, Mangalabag police station on 07.08.2015 by petitioner Manjulata Swain and accordingly, Mangalabag P.S. Case No. 164 of 2015 was registered on 08.08.2015 against four persons namely Kailash Chandra Mallick, Khageswar Rout, Nandi and Kishor Mallick under section 506/34 of the Indian Penal Code and section 67-A of the Information Technology Act, 2000 and in pursuance of CID, CB Office Order No. 132/CID dated 08.08.2015, the said F.I.R. presented at Mangalabag Police Station was registered as CID, CB, Odisha, Cuttack P.S. Case No. 18 dated 08.08.2015 and after completion of investigation, it was found that the named accused persons have no criminal liability and there was no supporting evidence to book them in the case as accused and accordingly, final report was submitted on 11.12.2015 and the case was returned as mistake of fact.
5. Dr. Susant Kumar Kanungo, learned counsel appearing for the petitioner Sarathi Baba contended that prima facie ingredients of the offences under which cognizance has been taken are not made out. He emphatically contended that the 1989 Act was amended by the Scheduled Castes and 12 Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (1 of 2016) which came into force on 26.01.2016 and in view of the amended Act, the Special Court or the Exclusive Special Court established under section 14 of the Act has power to directly take cognizance of the offences under the Act. He contended that when the matter was remanded back by this Court in CRREV No. 98 of 2016 on 13.05.2016 to the learned S.D.J.M. (Sadar), Cuttack to address the order of cognizance afresh looking into the materials on record, the learned S.D.J.M. (Sadar), Cuttack had lost its jurisdiction to directly take cognizance of offences and therefore, the order of cognizance under section 3(1)(w)(i) of the 1989 amended Act is not sustainable in the eye of law. It is further contended that when the offence is alleged to have been committed on 07.08.2015 and section 3(1)(w)(i) came into force on 26.01.2016 by virtue of the amendment Act, no cognizance of such offence should have been taken. Learned counsel further urged that when the F.I.R. was lodged on 14.08.2015, the case was not registered under the 1989 Act but subsequently the investigation of the case was handed over to one Ramesh Chandra Sethi, Deputy Superintendent of Police in view of Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 13 (hereafter "1995 Rules") after prima facie case under section 3 of 1989 Act was found and after taking over the charge of investigation, the new Investigating Officer has done no investigation but relying on the statements collected by the previous Investigating Officer submitted charge sheet which is illegal and not in consonance with Rule 7 of 1995 Rules. Learned counsel for the petitioner placed reliance in case of State of Madhya Pradesh -Vrs.- Chunnilal reported in (2009) 43 Orissa Criminal Reports (SC) 385. He further contended that in view of bar under section 195(1)(b)(i) of Cr.P.C., the learned Magistrate could not have taken cognizance of the offence under section 211 of the Indian Penal Code. Learned counsel for the petitioner further contended that one Kailash Chandra Mallick and two others who were the ex-employees of the Ashram of petitioner Sarathi Baba were driven out of the Ashram on the allegation of misappropriation of Ashram money and some cases were also instituted against them from the side of the petitioner for which those persons bore grudge against the petitioner and falsely implicated him in the crime. The learned counsel further submitted that the investigation has been conducted in a perfunctory manner and as the matter was highlighted in local T.V. channels and news papers, the investigating officer was 14 under tremendous pressure and concocted certain statements and filed charge sheet. The learned counsel further urged that mainly basing on the hearsay evidence, charge sheet has been submitted and therefore, in order to prevent the abuse of the process of the Court and to secure the ends of justice, the impugned order of cognizance so also the entire criminal proceeding against the petitioner should be quashed.
Mr. Manas Chand, learned counsel appearing for CBI Madam @ Manjulata Swain contended that the petitioner was not named in the First Information Report and in her first statement, though the victim stated that over phone, the CBI Madam gave dictation for lodging the F.I.R. but in her second statement, she did not allege any such thing. He further submitted that no specific role has been attributed to the petitioner even as per the statement of Surendra Mallick recorded on 12.09.2015 and therefore, the proceeding should be quashed.
6. Mr. Janmejaya Katikia, learned Addl. Government Advocate on the other hand placed the statements of the witnesses, statements of the victim including her 164 Cr.P.C. statement and contended that the ingredients of the offences are clearly made out. He placed reliance on the statement of witness Surendra Mallick to indicate that petitioner Sarathi Baba asked 15 co-accused petitioner Manjulata Swain @ CBI Madam and Mili @ Subhalaxmi Pati to approach the victim and prepare a false report against four persons and to present it before the police station. Learned counsel for the State further placed numbers of statements which were recorded by the Deputy Superintendent of Police and contended that the contentions raised by the learned counsel for the petitioner that the D.S.P. has done no investigation and simply submitted chargesheet relying on the materials collected by the previous investigating officer is not correct. It was contended that though the learned Magistrate while re-considering the matter afresh in the light of the direction of this Court held that the ingredients of offence under section 3(2)(vi) of the 1989 Act are not attracted but it is palpably wrong rather section 3(1)(w)(i) of the amended 1989 Act has got no application in this case and therefore, this Court should exercise its suo moto revisional power and direct the Magistrate to take cognizance of offence under section 3(2)(vi) of 1989 Act. Concluding his arguments, he submitted that both the revision petitions being devoid of merits should be dismissed.
7. Before examining the tactical and enthralling contentions raised at the Bar from the respective sides, it is felt necessary to advert to the ambit and scope of the revisional 16 power of this Court. Revisional power of the Court under sections 397 to 401 of Code of Criminal Procedure is not to be equated with that of an appeal and a revisional Court is not meant to act as an appellate Court. The revisional jurisdiction of the higher Court is a very limited one and cannot be exercised in a routine manner. Unless the order passed by the Magistrate is perverse or grossly erroneous or glaringly unreasonable or palpable misreading of records or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the revisional Court would not be justified in setting aside the order merely because another view is possible. The whole purpose of the revisional jurisdiction is to preserve the power in the Court to do justice in accordance with the principles of criminal jurisprudence.
Whether S.D.J.M.(Sadar), Cuttack was competent to take cognizance of offences under 1989 Act as on 31.05.2016?
8. A question was posed in case of Gangula Ashok and another -Vrs.- State of A.P. reported in (2000) 18 Orissa Criminal Reports (SC) 364 as to whether a Special Court which is envisaged in 1989 Act can take cognizance of any offence without the case being committed to that Court? While 17 answering such question, it was held that a Special Court under 1989 Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. A complaint or a charge sheet cannot straightaway be laid before the Special Court under the Act. It was further held that Special Courts created under certain other enactment like N.D.P.S. Act have been specially empowered to take cognizance of the offence without the accused being committed to it for trial but there is no similar provision in the 1989 Act.
In case of M.A. Kuttapan -Vrs.- E. Krishnan Nayanar reported in (2004) 28 Orissa Criminal Reports (SC) 58, it was held that Special Judge erred in directly entertaining a complaint filed before it for commission of offence under section 3(1)(x) of the 1989 Act and under section 7(1)(d) of the Protection of Civil Rights Act and in issuing process after taking cognizance without the case being committed to it for trial by a competent Magistrate.
Thus a complaint petition or a charge sheet disclosing commission of offence under the 1989 Act has to be placed first before the Magistrate who is competent to take cognizance of offence in terms of section 190 of the Cr.P.C. The Magistrate 18 after taking cognizance of offence has to issue process against the accused persons in terms of section 204 of the Cr.P.C. and then he has to follow the procedure of commitment as laid down under sections 207, 208 and 209 of the Cr.P.C. and then the case would come to the Special Court for trial. This procedure was followed as per the decision of the Hon'ble Supreme Court in case of Gangula Ashok (supra) till the 1989 Act was amended by virtue of 2015 Amendment Act (1 of 2016) which came into force on 26.01.2016. The second proviso to section 14 of 1989 Amended Act indicates that the Special Court and the Exclusive Special Court established or specified shall have power to directly take cognizance of the offence under the Act. In view of the second proviso, if a charge sheet is filed either on 26.01.2016 or thereafter for commission of offence under the 1989 Act then the Magistrate will have no jurisdiction to take cognizance of offence. It is only the Special Court and the Exclusive Special Court who will have jurisdiction to take cognizance of offence. In the present case, charge sheet was submitted on 28.11.2015 not only for commission of offences under the Indian Penal Code but also for the offences under section 3(2)(v)(vi) of 1989 Act and accordingly, the learned S.D.J.M.(Sadar), Cuttack took cognizance of the offences. When the matter was remanded back 19 to the learned S.D.J.M.(Sadar), Cuttack by this Court in CRLREV No.98 of 2016 vide order dated 13.05.2016 for addressing the order of cognizance afresh, even though the Amended Act had already became effective but since the order of cognizance was to be decided basing on a charge sheet which was filed earlier to the enforcement of the Amended Act, it is only the learned S.D.J.M.(Sadar), Cuttack who was competent to deal with the matter and therefore, I am of the view that the contention raised by the learned counsel for the petitioner Sarathi Baba that the learned Magistrate was lacking jurisdiction to take cognizance of the offences after remand is not at all acceptable. Whether cognizance of offence under section 3(1)(w)(i) of 1989 Amended Act is sustainable?
9. Section 3(1)(w)(i) of 1989 Amended Act prescribes punishment for intentionally touching a woman belonging to a Scheduled Caste or a Scheduled Tribe knowing that she belong to a Scheduled Caste or a Scheduled Tribe, when such act of touching was of a sexual nature and is without the recipient's consent. When the alleged offence was committed, section 3(1)(w)(i) of the Amended 1989 Act has not come into force or in other words such an offence was not there in the statute book. Article 20(1) of the Constitution of India lays down that no 20 person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than which might have been inflicted under the law in force at the time of the commission of the offence. The term "law in force" in Clause (1) of Article 20 of the Constitution of India relates not to a law deemed to be in force but to a law factually in operation at the time of the commission of the act. Therefore, when Amended Act was not in force when the alleged offence was committed and came into force only on 26.01.2016, I am of the view that the order of cognizance of offence under section 3(1)(w)(i) of the Amended 1989 Act is not sustainable in the eye of law. Whether the S.D.J.M.(Sadar), Cuttack was justified in holding that the ingredients of offences under sections 3(2)(v) and 3(2)(vi) of 1989 Act are not attracted?
10. Section 3(2)(v) of the 1989 Act prescribes punishment for commission of any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of Scheduled Caste or a Scheduled Tribe or such property belongs to such member. Since charge sheet was submitted under sections 384/ 506/ 211/ 120-B/ 342/ 343/ 365/ 21 508/ 34 of the Indian Penal Code and none of the offences is punishable with imprisonment for a term of ten years or more, I am of the view that prima facie the ingredients of the offence under section 3(2)(v) of 1989 Act are not attracted and therefore, the learned S.D.J.M.(Sadar), Cuttack was justified in not taking cognizance of such offence.
So far as the offence under section 3(2)(vi) of the 1989 Act is concerned, it indicates that if the accused knowingly or having reason to believe that an offence has been committed under Chapter-II of the 1989 Act, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, he shall be punishable with the punishment provided for that offence. The materials available on record particularly the statement of the victim recorded on 12.09.2015 prima facie discloses that the petitioner Sarathi Baba was aware that the victim belonged to Scheduled Caste and he took her to Hyderabad putting her and her family members under threat of life and wrongfully confined the victim in the hotel room and thereafter, when the matter was highlighted in the media, in order to save himself from legal punishment, the 22 petitioner Sarathi Baba managed to get a false report prepared by the victim against four innocent persons and the same was presented before Mangalabag Police Station which on completion of investigation ended in final report and the case was returned as mistake of fact. Therefore, I am of the view that the ingredients of the offence under section 3(2)(vi) of 1989 Act are fully satisfied and as such the learned S.D.J.M.(Sadar), Cuttack erred in not taking cognizance of such offence even though charge sheet was submitted for such offence. Law is well settled that this Court in exercise of suo motu revisional jurisdiction can correct any error committed by the lower Court. Therefore, I direct the learned S.D.J.M.(Sadar), Cuttack to take cognizance of the offence section 3(2)(vi) of the 1989 Act and proceed in accordance with law.
Whether submission of charge sheet for offences under 1989 Act is illegal because of non-compliance of Rule 7 of 1995 Rules?
11. It is contended by the learned counsel for the petitioner Sarathi Baba that Ramesh Chandra Sethi, Deputy Superintendent of Police took over charge of investigation of the case after prima facie case under section 3 of 1989 Act was found but after taking over the charge of investigation, he has 23 done no investigation but relying on the statements collected by the previous Investigating Officer submitted charge sheet which is not in consonance with Rule 7 of 1995 Rules. Learned counsel for the State on the other hand contended that numbers of statements were collected by the Deputy Superintendent of Police after taking charge of investigation and then considering the facts and circumstances of the case, the evidence collected in oral and documentary forms and being prima facie satisfied that the ingredients of offences are made out, charge sheet was submitted.
Rule 7 of 1995 Rules envisages that an offence committed under the 1989 Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police and such investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. In case of State of M.P. -Vrs.- Chunnilal reported in (2009) 43 Orissa Criminal Reports (SC) 385, it is held that it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police 24 officer not below the rank of D.S.P. for different areas in the police districts. Rule 7 of 1995 Rules provided rank of investigating officer to be not below the rank of D.S.P. An officer below that rank cannot act as investigating officer. The provisions in section 9 of 1989 Act, Rule 7 of 1995 Rules and section 4 of the Code of Criminal Procedure when jointly read lead to an irresistible conclusion that the investigation an offence under section 3 of 1989 Act by an officer not appointed in terms of Rule 7 of 1995 Rules is illegal and invalid. When the offence complained are both under the IPC and any of the offence enumerated in section 3 of the 1989 Act, the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non- investigation of the offence under section 3 of the 1989 Act by a competent police officer. In such a situation, the proceedings shall proceed in appropriate Court for the offences punishable under the IPC notwithstanding investigation and the charge sheet being not liable to be accepted only in respect of offence under section 3 of the 1989 Act for taking cognizance of that offence.
On perusal of the case diary, it appears that Mamatarani Panda, Inspector of Police, CID, CB, Odisha, Cuttack 25 started investigation of the case on 14.08.2015 and on 13.10.2015 on perusal of the statement of the victim lady recorded on 12.09.2015, she was of the view that new heads of offences under sections 342/ 343/ 347/ 365/ 508 of the Indian Penal Code and sections 3(2)(v)(vi) of 1989 Act are prima facie applicable against the petitioners and accordingly, sent intimation to the Court of learned S.D.J.M.(Sadar), Cuttack for necessary action and on 16.10.2015 in obedience to the office order no.165(A)/CID, dated 15.10.2015 communicated to her vide Memo No.29910/CID-Inv, dated 16.10.2015 requested DSP Shri R.C. Sethi of CID, CB P.S. for taking charge of investigation. The DSP took charge of investigation on 16.10.2015. He perused the case records and on 03.11.2015, he examined Khageswar Rout, Kishore Mallick, Kailash Chandra Mallick and Nandi @ Bichitrananda Bhuyan and recorded their statements. On 04.11.2015 he reached at BSNL Office, Bhubaneswar and contacted Senior SDE(CAF), BSNL, Odisha, Circle, Bhubaneswar for CAF of mobile no. 9438359672 and received certified copies of CDR and CAF of mobile no. 9438359672. On 06.11.2015 he received the copy of station diary extracts of Mangalabag P.S. S.D.E. No. 143 dated 07.08.2015. On 07.11.2015 he found that the mobile number used by petitioner Sarathi Baba was in the 26 name of one Sachidananda Mohapatra and he contacted IIC, Marsaghai Police Station regarding the present whereabouts of that person. On 19.11.2015 he issued requisition to Tahasildars of Tirtol, Jagatsinghpur, Derabis and Kendrapara for furnishing Caste Certificates in respect of the victim and petitioner Sarathi Baba. On 20.11.2015 he collected the Caste Certificate of the victim from Tahasildar, Tirtol and on 21.11.2015 he collected Caste Certificate of the petitioner Sarathi Baba. On 23.11.2015 he again went through the case record and submitted detail investigation report before SP, CID, CB, Odisha, Cuttack with a request for passing necessary order for submission of final form in the case. On 26.11.2015 he seized carbon copy of the case records in CID P.S. Case No. 18 dated 08.08.2015 and examined Mrs. Jhelam Jena and received CDR in respect of two mobile numbers. On 28.11.2015 considering the materials available on record, he submitted charge sheet against the petitioners Sarathi Baba, Manjulata Swain @ CBI Madam and Mili @ Subhalaxmi Pati.
Rule 7(2) of 1995 Rules indicates that the investigating officer shall complete the investigation on top priority and charge sheet has to be filed within a period of sixty days which is inclusive of investigation and filing of charge sheet. 27 When the first investigating officer Mamatarani Panda investigated the matter from 14.08.2015 till 16.10.2015 on which date she handed over the charge of investigation to DSP R.C. Sethi who not only perused the case records prepared by the previous investigation officer but also carried on with the further investigation and collected relevant materials, it cannot be said that there is either any defect or illegality in investigation. In case of H.M. Rishbud -Vrs.- State of Delhi reported in AIR 1955 SC 196, it was held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.
Thus the contentions raised by the learned counsel for the petitioner Sarathi Baba that the DSP R.C. Sethi has done no investigation but relying on the statements collected by the previous Investigating Officer submitted charge sheet is factually not correct and therefore, not acceptable.
Whether there is illegality in taking cognizance of the offences under Indian Penal Code?
12. In case of S.K. Sinha -Vrs.- Videocon reported in (2008) 39 Orissa Criminal Reports 704, it is held that the expression "cognizance" merely means becoming aware of and it 28 connotes to take notice of judicially. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by someone. In case of Dr. Subramanian Swamy -Vrs.- Dr. Manmohan Singh reported in AIR 2012 S.C. 1185, it is held that in legal parlance, cognizance is "taking judicial notice by the Court of law", possessing jurisdiction, on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially. In case of State of W.B. -Vrs.- Mohammed Khalid reported in 1995 Supreme Court Cases (Criminal) 266, it is held that taking of cognizance is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of the cases and not of persons. In case of Bhushan Kumar -Vrs.- State reported in (2012) 52 Orissa Criminal Reports (SC) 150, it is held that at the stage of section 190 of the Code, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the 29 conviction can be determined only at the trial and not at the stage of enquiry.
(i) Cognizance of offence under section 384 IPC:-
While attacking taking of cognizance of offence under section 384 of the Indian penal Code, it was contended by the learned counsels for the petitioners that the ingredients of offence are not attracted.
The learned counsel for the State on the other hand contended that by persuading the victim to write an F.I.R against four innocent persons was with a view to put those persons under a state of blackmailing and therefore, the document prepared by the victim at the behest of the accused persons had got the effect of being converted to a valuable security and therefore, the ingredients of the offence under section 384 of the Indian Penal Code is squarely attracted.
Section 384 of the Indian Penal Code prescribes punishment for "extortion" which is defined under section 383 of the Indian Penal Code. Intentionally putting any person in fear of any injury to that person or to any other, and thereby dishonestly inducing the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security is called 30 "extortion". It is required to be proved that the victim was induced to part with the property or valuable security by putting her in fear of injury. "Valuable security" is defined in section 30 of the Indian Penal Code which denotes a document which is, or purports to be, a document whereby any legal right is created, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.
Even though the victim has stated that she was induced to write a letter indicating threat to her life by four persons at the instance of CBI Madam and Mili Apa and such letter was presented in the police station as F.I.R. but I am of the view that it cannot be said that the victim delivered any property or valuable security or that her signed document was the effect of conversion into a valuable security. Merely inducing a person to write a false F.I.R. against another or putting such person in fear of any injury to write a false F.I.R. against another cannot be said to be "extortion". It is beyond comprehension as to how does a false F.I.R. fall within the ambit of a property or a valuable security or a document capable of being converted into valuable security. Mere inducing a person to write a false F.I.R. does not come within the mischief of "extortion". Writing F.I.R. is 31 neither putting any person in fear of death or of grievous hurt for the purpose of dishonestly inducing that person to deliver any property or valuable security or anything signed or sealed which may be converted into a valuable security. Such a view is difficult to ram down the throat and is highly preposterous. Therefore, I am of the view that the ingredients of offence of "extortion" are not attracted and as such the learned Magistrate was not justified in taking cognizance of the offence under section 384 of the Indian Penal Code.
(ii) Cognizance of offence under section 211 IPC:-
In order to attract the ingredients of the offence under section 211 of the Indian Penal Code, there must be material to show that there was an intention to cause injury to a particular person and such injury was caused by instituting or causing to be instituted criminal proceeding against that person or by falsely charging him to have committed an offence and there must be knowledge that there was no just or lawful ground for such proceeding or charge against that person.
Learned counsel for the petitioners contended that in view of section 195(1)(b)(i) of Cr.P.C., no Court shall take cognizance of any offence punishable under section 211 of the Indian Penal Code when such offence is alleged to have been 32 committed in, or in relation to, any proceeding in any Court except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. It is contended that basing on a First Information Report by the victim, cognizance of offence under section 211 of the Indian Penal Code cannot be taken.
The learned counsel for the State on the other hand contended that such restriction of taking cognizance of offence under section 211 of the Indian Penal Code will not be attracted as no proceeding in Court has commenced but only F.I.R. containing false allegation against four persons was presented which culminated in the submission of final report.
It is the prosecution case that the victim was induced to write a First Information Report against four innocent persons on 07.08.2015 at the instance of the accused persons which was presented in the police station on 08.08.2015 and it was investigated upon and ultimately final report was submitted on 11.12.2015 on the ground of mistake of fact.
To attract the bar under section 195(1)(b)(i) of Cr.P.C., there should be a proceeding in any Court and the offence should have been committed in such a proceeding or in 33 relation to such a proceeding. The word "proceeding" in clause
(b)(i) is not defined in the Code though "judicial proceeding" is, and it is used in a wider sense than "judicial proceeding". The "judicial proceeding" as per section 2(i) of Cr.P.C. includes any proceeding in the course of which evidence is or may be legally taken on oath.
The false report was made to the police against four persons for which Mangalabag P.S. Case No. 164 dated 08.08.2015 was instituted which corresponds to CID, CB, Odisha, Cuttack P.S. Case No. 18 dated 08.08.2015. Neither any accused person was arrested nor remanded to custody nor was the Court asked to take cognizance of the offence. However, on the prayer of the investigating officer, the 164 Cr.P.C. statement of the victim was recorded on 14.08.2015 and on the very day, the victim presented the F.I.R. in this case before Superintendent of Police, CID, CB, Odisha, Cuttack. With the submission of the final report on the ground of mistake of fact, Mangalabag P.S. Case No. 164 of 2015 was closed.
In case of M.L. Sethi -Vrs.- R.P. Kapur reported in A.I.R. 1967 S.C. 528, it is held as follows:-
"13.........When examining the question whether there is any proceeding in any Court, these are three situations that can be envisaged. One is that 34 there may be no proceeding in any Court at all.
The second is that a proceeding in a Court may actually be pending at the point of time when cognizance is sought to be taken of the offence under section 211 of IPC. The third is that though there may be no proceeding pending in any Court in which or in relation to which the offence under section 211 of IPC could have been committed, there may have been a proceeding which had already concluded and the offence under section 211 may be alleged to have been committed in, or in relation to, that proceeding. It seems to us that in both the latter two circumstances envisaged above, the bar to take cognizance under section 195(1)(b) [i.e. 195(1)(b)(i) of the 1973 Code] would come into operation. If there be a proceeding actually pending in any Court and the offence under section 211 I.P.C. is alleged to have been committed in relation to that proceeding, section 195(1)(b) would clearly apply."
In case of Kamalapati Trivedi -Vrs.- State of West Bengal reported in A.I.R. 1979 S.C. 777, it was held as per majority view that as the order releasing P on bail and the one ultimately discharging him of the offence complained of amount to proceedings before a Court, both the orders resulted directly from the information lodged by T with the police against P and in this situation there is no getting out of the conclusion 35 that the offence under section 211 I.P.C. must be regarded as one committed in relation to those proceedings. This requirement of clause (b) of section 195(1) of Cr.P.C. is also therefore fully satisfied. It is further held that the complaint against T was in respect of an offence alleged to have been committed in relation to a proceeding in Court and that in taking cognizance of it, the S.D.J.M. acted in contravention of the bar contained in clause (b) of section 195(1) of Cr.P.C., as there was no complaint in writing either of the S.D.J.M. or of a superior Court.
There is no dispute that both the first information reports were written by the victim and the first case was registered on 08.08.2015 vide Mangalabag P.S. Case No.164 of 2015 corresponding to CID, CB, Odisha, Cuttack P.S. Case No.18 of 2015 and the second case was registered on 14.08.2015 vide CID, CB, Odisha, Cuttack P.S. Case No.19 of 2015. In the second case, when chargesheet was submitted and cognizance of offence was taken, inter alia, under section 211 of the Indian Penal Code on 28.11.2015, the first case was under investigation and the learned Magistrate had passed judicial order in that case to record the 164 Cr.P.C. statement of the victim. Subsequently in the first case, final report was submitted. Therefore, I am of 36 the view that the offence under section 211 of Indian Penal Code was committed in relation to a proceeding in Court and in taking cognizance of it, the learned S.D.J.M. acted in contravention of section 195(1)(b)(i) of Cr.P.C. as there was no complaint in writing by the S.D.J.M. or by any authorised officer of that Court or of a superior Court. Moreover, false charge of offence against some persons was brought by the victim which according to the prosecution was at the instance of the accused persons. Thus I am of the view that the learned Magistrate was not justified in taking cognizance under section 211 of the Indian Penal Code in contravention of section 195(1)(b)(i) of Cr.P.C.
(iii) Cognizance of offence under section 506 IPC:-
Section 506 of the Indian Penal Code prescribes punishment for 'criminal intimidation' which is defined under section 503 of the Indian Penal Code. Threatening a person with any injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested is called 'criminal intimidation'. Similarly threatening a person with any injury to cause alarm to that person or to cause the person to do any act which is not legally bound to do as the means of avoiding the execution of such threat or to cause that person to omit to do any act which that person is legally entitled to do as 37 the means of avoiding the execution of such threat is called 'criminal intimidation'. If threat was given to cause death or grievous hurt or to cause the destruction of any property by fire or to cause an offence punishable with death or with imprisonment for life or with imprisonment for a term which may extend to seven years or to impute unchastity to a woman, section 506 Part-II of the Indian Penal Code would be attracted.
In the First Information Report, the victim stated that petitioner Sarathi Baba was repeatedly giving her threat to kill and to ruin her family so that they would beg on the streets. On perusal of the statements of the victim dated 17.08.2015 and 12.09.2015, it indicate that petitioner Sarathi Baba was giving repeated threat to the victim to kill her and to ruin her family so that they would beg on the streets. The statements of Smruti Prajna Sanhita, the friend of the victim, Bhagabat Mallick, the father of the victim, Manorama Das, the mother of the victim and Jyoti Ranjan Mallick, the brother of the victim also indicate about such threat being given by the petitioner Sarathi Baba.
Therefore, I am of the view that the learned Magistrate was justified in taking cognizance of offence under section 506 of the Indian Penal Code.
38
(iv) Cognizance of offence under section 120-B IPC:-
Section 120-B of the Indian Penal Code prescribes punishment for criminal conspiracy. Section 120-A of the Indian Penal Code defines criminal conspiracy. According to the definition of criminal conspiracy, two or more persons must be parties to an agreement to do an illegal act or an act which is not illegal, to do the same by illegal means. It need not be proved that the parties actually came together and agreed in terms to pursue the unlawful object or that there was any express verbal agreement. A tacit understanding between the conspirators as to what should be done is sufficient. If in pursuance of a criminal conspiracy, the conspirators commit several offences then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences. The very fact that the conspiracy constitutes the offence, it is immaterial whether anything has been done in pursuance of unlawful agreement. The lack of direct evidence relating to conspiracy has got no consequence as direct evidence to prove conspiracy is rarely available.
In the present case, the statement of one Surendra Mallick which was recorded on 12.09.2015 clearly indicates that on 04.08.2015 at about 6.00 p.m. the petitioner Manjulata Swain 39 had come to the petitioner Sarathi Baba and she was told by Sarathi Baba to approach the victim who was staying in the hostel of S.C.B. Medical College and to induce or give threat to the victim to lodge one First Information Report against four persons indicating that they had compelled the victim to accompany Sarathi Baba to Hyderabad. The petitioner Sarathi Baba took the mobile phone of petitioner Manjulata Swain and talked with co-accused Mili. The petitioner Manjulata Swain then gave assurance to Sarathi Baba not to get worried and that she and Mili would do the needful. The statement of the victim dated 17.08.2015 clearly indicate as to how petitioner Manjulata Swain and Mili induced her to lodge false information report against four persons which was dictated by the petitioner CBI Madam @ Manjulata Swain.
Thus the materials available on record prima facie indicate that the accused persons entered into a criminal conspiracy and to save the petitioner Sarathi Baba from legal punishment and to save him from being defamed, committed an illegal act by inducing the victim to write a report against the innocent persons.
40
Therefore, I am of the view that the learned Magistrate has not committed any illegality in taking cognizance of offence under section 120-B of the Indian Penal Code.
(v) Cognizance of offence under section 342 IPC:-
In order to attract the ingredients of the offence under section 342 of the Indian Penal Code, it is required to prove by the prosecution that there has been wrongful restraint to any person in such a manner so as to prevent that person from proceeding beyond certain circumscribing limits. 'Wrongful restraint' has been defined in section 339 of the Indian Penal Code. There must be voluntary obstruction to any person so as to prevent him from proceeding in any direction in which he has a right to proceed. Proof of actual physical obstruction is not essential to support a charge of wrongful confinement. If an impression is created in the mind of the person detained so as to lead him believe reasonably that he was not free to depart or that he would be forthwith restrained if he attempted to do so, the same will also come within the purview of wrongful confinement.
The victim has stated in her statement dated 12.09.2015 that while she was staying with the petitioner Sarathi Baba in a room in Hotel Golkonda in Hyderabad from 41 03.07.2015 to 05.07.2015, she was not allowed to come outside or to talk with anybody. She further stated that the petitioner then took her to Jaipur where they stayed in a hotel and there also she was not allowed to keep any contract with anybody. The statement of one Pitabas Sahoo who was serving in Hotel Golkonda also indicates about the stay of petitioner Sarathi Baba with a lady in room no. 607. Another statement of one Rangadhar Panda who was serving in Hotel Golkonda also indicates about the stay of the petitioner Sarathi Baba along with the victim in room no.607.
Learned counsel for the petitioner Sarathi Baba contended that the victim girl was major at the time of occurrence and the statements of the hotel staffs indicate that both Sarathi Baba and the victim were moving in vehicle freely in Hyderabad city and therefore, there was no wrongful confinement of the victim. Learned counsel placed the statements of one Diptikanta Mohanty and one Hamid Mahiuddin. The statement of Hamid Mahiuddin does not indicate that petitioner Sarathi Baba took the victim with him. He has stated that he had no knowledge about the customer who moved inside the city by hiring the CAB services. Witness Diptikanta Mohanty has stated that only once he had seen both Sarathi 42 Baba and the lady had been for an outing to visit Hyderabad city. At this stage of taking cognizance, when the statement of the victim who is the best witness makes out a prima facie case under section 342 of the Indian Penal Code, it is not proper to sift her evidence and compare with other statements which according to me are only permissible at the stage of trial.
Therefore, I am of the view that the learned Magistrate was quite justified in taking cognizance of offence under section 342 of the Indian Penal Code.
(vi) Cognizance of offence under section 343 IPC:-
Since section 343 of the Indian Penal Code prescribes punishment for wrongful confinement of any person for three days or more and the statement of the victim dated 12.09.2015 indicates about such wrongful confinement in Hotel Golkonda as well as in a hotel at Jaipur from 03.07.2015 to 08.07.2015, I am of the view that the ingredients of such offence is satisfied.
(vii) Cognizance of offence under section 365 IPC:-
In order to attract the ingredients of the offence under section 365 of the Indian Penal Code, it is required to prove the kidnapping or the abduction by the accused so also to prove that the accused thereby intended that the person kidnapped or abducted should be kept in wrongful confinement. 43
Since the victim girl was aged about 24 years at the time of occurrence which is beyond the prescribed age limit under section 361 of the Indian Penal Code, no offence of kidnapping is attracted. However, for commission of offence of 'abduction' as defined under section 362 of the Indian Penal Code, no age limit of the victim has been prescribed but it is required to be proved that the victim was compelled by force or induced by deceitful means to go from any place. In abduction, consent of the person moved, if freely and voluntarily given condones it.
The learned counsel for the petitioner contended that since the victim lady was major and knowing and understanding fully the consequence of her act, moved with the petitioner Sarathi Baba from place to place and stayed with him in different hotels and never objected before anybody during her stay though she had got ample opportunity to do so, clearly indicates that she was a consenting party and therefore, the ingredients of the offence under section 365 of the Indian Penal Code are not attracted.
The victim in her statement dated 12.09.2015 has stated that petitioner Sarathi Baba used to hypnotize her for which she was unable to know anything when she was visiting 44 Ashram of Sarathi Baba. She has further stated that on 02.07.2015 when the petitioner Sarathi Baba asked her to visit Hyderabad, she could not resist and she was also threatened to be killed along with her family members if she did not visit Hyderabad. She specifically stated that when she returned to her hostel, she became conscious otherwise she was obliging all the instructions of the petitioner Sarathi Baba who acted as hypnotist and put her in a hypnotic state. She further stated that petitioner Sarathi Baba used to give threat to her that he was God and he had got power to destroy the victim and her family members for which she moved with him. Such statement clearly makes out the ingredients of 'abduction'. Since I have already held that the victim was under wrongful confinement in Hyderabad and Jaipur as per her statement dated 12.09.2015, I am of the view that the prima facie ingredients of the offence under section 365 of the Indian Penal Code are also attracted.
(viii) Cognizance of offence under section 508 IPC:-
In order to prove the ingredients of the offence under section 508 of the Indian Penal Code, the prosecution is required to prove that the accused caused, or attempted to cause, the victim (a) to do something which she was not legally bound to do, or (b) to omit to do something that she was legally entitled 45 to do. It is further required to prove that the accused did it voluntarily by inducing the victim or attempting to induce the victim that she or someone in whom she had an interest would become, or be rendered, an object of Divine displeasure, if she fails to do and such Divine displeasure would arise from some act of the accused and that the object of the accused was to cause the victim to do so or to so omit to do, such thing.
The learned counsel for the petitioner Sarathi Baba contended that since the victim was prosecuting her studies in 8th Semester of M.B.B.S. course in S.C.B. Medical College, it cannot be accepted that she was induced to believe that she would be rendered as an object of Divine displeasure if she failed to act according to the instruction of the petitioner Sarathi Baba.
The victim in her statement dated 12.09.2015 has stated as to how she was visiting the Ashram of petitioner Sarathi Baba since 2010 and how the petitioner used to hypnotize her and how the petitioner was posing himself as incarnation of God and threatening the victim that he had got power to destroy her and her family. The influence, the conduct and the act of the petitioner created a belief in the mind of the victim that if she would not oblige him and act according to his command then she would be rendered as an object of Divine 46 displeasure. She was acting in a helpless manner being hypnotized and threatened by the petitioner.
Thus I am of the view that prima facie ingredients of offence under section 508 of the Indian Penal Code is made out against the petitioner Sarathi Baba.
Conclusions:-
13. In view of the foregoing analysis of the relevant provisions of law and the materials available on record, I am of the considered view that prima facie ingredients of offences punishable under sections 365, 506, 508, 342, 343 read with section 120-B, 34 of the Indian Penal Code and section 3(2)(vi) of S.C. and S.T. (P & A) Act, 1989 are clearly made out against the petitioner Santosh Kumar Roul @ Srimad Sarathi Dev @ Sarathi Baba. Similarly I am of the considered view that prima facie ingredients of offences punishable under sections 506 read with section 120-B, 34 of the Indian Penal Code are clearly made out against the petitioner Manjulata Swain and co-accused Mili @ Subhalaxmi Pati. The ingredients of offences under sections 384 and 211 of the Indian Penal Code are not made out against any of the accused persons and ingredients of offence under section 3(1)(w)(i) of S.C. and S.T. (P & A) Act, 1989 are not made out against petitioner Santosh Kumar Roul @ Srimad Sarathi Dev @ 47 Sarathi Baba and therefore, cognizance of such offences are quashed.
Accordingly, so far as the petitioner Santosh Kumar Roul @ Srimad Sarathi Dev @ Sarathi Baba is concerned, since cognizance of offences punishable under sections 365, 506, 508, 342, 343 read with section 120-B, 34 of the Indian Penal Code has already been taken, the learned S.D.J.M. (Sadar), Cuttack has to additionally take cognizance of offence under section 3(2)(vi) of S.C. and S.T. (P & A) Act, 1989 and proceed against him in accordance with law. So far as the petitioner Manjulata Swain and co-accused Mili @ Subhalaxmi Pati are concerned, the learned S.D.J.M. (Sadar), Cuttack has rightly taken cognizance of offences under sections 506 read with section 120-B, 34 of the Indian Penal Code and he shall also proceed against them in accordance with law.
With the aforesaid modification in the impugned order of cognizance, both the revision petitions stand dismissed.
...............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 24th October, 2016/Sisir