Research › Search › Judgment

Orissa High Court · body

2001 DIGILAW 143 (ORI)

Santosh Kumar Biswal v. Sahadev Mallick

2001-03-28

P.K.TRIPATHY

body2001
ORDER 28.3.2001 — Heard. 2. In this application under Sec. 482, Cr.P.C. petitioners pray to quash the order of cognizance in I.C.C.No. 66 of 1996 of the Court of S.D.J.M., Bhanjanagar and to recall the order of process so far it relates to both of them. 3. Mr. Ashok Mohanty, learned counsel for the petitioners states that for the self-same occurrence, on the basis of the F.I.R. G.R.Case No. 204 of 1996 was registered in the Court of S.D.J.M., Bhanjanagar. On completion of the investigation, charge-sheet was filed, but the present petitioners were not charge-sheeted as accused persons. Though attempt was made by the informant through the Additional Public Prosecutor to add the present two petitioners as accused in that G.R.Case, but that application was rejected by learned S.D.J.M. on 25.9.1996. The impugned order taking cognizance was passed on 30.4.1998. Learned counsel for the petitioners states that in the order dated 30.4.1998 process was directed to be issued against the present petitioners as the co-accused persons alongwith the other accused persons in the said complaint. Learned counsel for the petitioners thus states that when once the learned S.D.J.M. refused to include the petitioners as accused for the self-same occurrence vide the order dated 25.9.1996 in G.R.Case No. 204 of 1996, it is peculiar enough for learned S.D.J.M. to issue process against the petitioners in the complaint case on 30.4.1998. 4. Mr. Sarangi, learned counsel for the opp. party, on the other hand, states that refusal to include the petitioners as accused in the G.R.Case was on a technical ground that they were not charge-sheeted and not on merit with the finding regarding absence of prima facie case. He further argues that the order of cognizance dated 30.4.1998 was passed after perusal of the statements of a large number of witnesses which was recorded in the enquiry under Sec. 202, Cr.P.C. and order was passed to issue process against the accused persons including the petitioners on the basis of existence of a prima facie case against them. He further states that the aforesaid order in the complaint being independent of the order in G.R.Case, therefore, petitioners are not to get any advantage from out of the circumstance of rejection of the application of the prosecution by the S.D.J.M. in the G.R.Case. 5. He further states that the aforesaid order in the complaint being independent of the order in G.R.Case, therefore, petitioners are not to get any advantage from out of the circumstance of rejection of the application of the prosecution by the S.D.J.M. in the G.R.Case. 5. Learned counsel for the petitioners also argues that during the course of enquiry under Sec. 202, Cr.P.C. though eleven witnesses were examined but such are not consistent regarding presence of the petitioners at the spot of occurrence and also relating to the offence committed by them in course of the occurrence and, therefore, process under Sec. 204, Cr.P.C. should not have been issued against them. In that context, learned counsel for the opp. party argues that it is neither necessary nor required for the Magistrate to make a roving enquiry at the stage of cognizance and, apart from that, the evidence which is available on record is sufficient to take cognizance and also to issue process against the accused persons including the present petitioners. 6. It is also stated at the Bar that learned S.D.J.M. has passed order to club both the cases, i.e. I.C.C.Case and the G.R.Case and to undertake a common trial and the parties have conceded to that. 7. On considering the aforesaid contention and after perusal of the statements of the witnesses in the L.C.R. this Court finds that there exists a prima facie case for issue of process against the petitioners. The law does not prohibit or prevent an inform¬ant in a police case to lodge a complaint on reasonable circum¬stance. In this case nothing has been shown about any unreasona¬bility in filing of the complaint. In that context the safety measure as provided in Sec. 210, Cr.P.C. has not been stated to have been ignored or violated by learned S.D.J.M. The order of cognizance and issue of process in the G.R.Case is to be governed by the materials collected during the course of investigation. Any lacuna or lapses from the side of the Investigating Agency may allow a person to escape from the clutches of law temporarily inasmuch as the leftover accused can be asked to face the trial by resorting to Sec. 319, Cr.P.C. or by filing protest peti¬tion/complaint in the Court of the cognizance taking Magistrate. Any lacuna or lapses from the side of the Investigating Agency may allow a person to escape from the clutches of law temporarily inasmuch as the leftover accused can be asked to face the trial by resorting to Sec. 319, Cr.P.C. or by filing protest peti¬tion/complaint in the Court of the cognizance taking Magistrate. If a vigilant informant takes recourse to Sec. 200, Cr.P.C. and if that is legally maintainable, then it cannot be ignored to be considered. The cognizance taking Magistrate is to consider the same on the basis of the evidence which is produced under Sec. 200 and/or Sec. 202, Cr.P.C. On perusal of the lower Court record, this Court finds that learned S.D.J.M. has properly followed the procedure as provided in Chapter XV of the Criminal Procedure Code. 8. In the above context, the grievance of the petitioner against the S.D.J.M. is also on the ground that at the time of assessing the evidence received in the enquiry under Sec. 202, Cr.P.C., learned S.D.J.M. did not take note of the materials in the case diary in the connected G.R.Case though both the cases were posted to the same day i.e. 30.4.1998. There is no hard and fast rule provided or prohibiting a cognizance taking Magistrate to peruse the case diary if he is put into a position which exists in this case in the aforesaid manner. But one thing is certain from the provision in Chapter XV that the cognizance taking Magistrate cannot ignore the evidence received in course of the enquiry under Sec. 202, Cr.P.C. on the ground of contradictory or inconsistent materials available in the case diary. The simple reason for that is that neither of the evidence is conclusive relating to the matter under consideration and truth or otherwise in such statement is liable to be assessed only at the time of trial. In view of that position of law, no fault can be found with learned S.D.J.M., as complained by the petitioner, for not perusing the case diary at the stage of assessing the evidence recording under Sec. 202, Cr.P.C. relating to issue of process. 9. In the instant case, as there is existence of a prima facie case, this Curt is not inclined to invoke the inherent power either to quash the order of cognizance or to recall the order of issue of process against the petitioners. 9. In the instant case, as there is existence of a prima facie case, this Curt is not inclined to invoke the inherent power either to quash the order of cognizance or to recall the order of issue of process against the petitioners. Accordingly, the application under Sec. 482, Cr.P.C. stands dismissed being devoid of merit. 10. Learned counsel for the petitioners states that by 12.4.2001 both the petitioners shall surrender and apply for bail in the Court of S.D.J.M., Bhanjanagar and direction be issued to the Courts below to release them on bail. In view of the above submission, it is observed that if both the petitioners shall surrender and apply for bail by the aforesaid date, then learned S.D.J.M., Bhanjanagar may do well to hear and dispose of that bail application in accordance with law and on its own merits, as far as practicable, during the first half of the day itself. Petition disposed of.