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2001 DIGILAW 480 (ORI)

Republic of India v. Babu Samal

2001-11-05

P.K.TRIPATHY

body2001
JUDGMENT P. K. TRIPATHY, J. — The prosecution in S.P.E. Case No. 9 of 1996 of the Court of Addl. Chief Judicial Magistrate, Bhubaneswar has filed this revision application challenging legality and correctness of the order dated 19.7.1999 by which learned Addl. Chief Judicial Magistrate recalled the order of cognizance passed against the opposite party, who is one of the two accused persons in the said S.P.E. Case. 2. The aforesaid case in the Court of Addl. C. J. M., Bhubaneswar was registered on the allegations of offences punish¬able under Secs. 120-B/420,I.P.C. with the allegations that fake gas connections were shown as granted to eight none existing persons by the co-accused of the petitioners who is running a gas agency (not a party in this case) and the petitioner being a practising advocate at Bhubaneswar identified those persons in the affidavits though such persons with such names and descrip¬tions and addresses are non-existing. It is the further allega¬tion of the prosecution that when four affidavits bear the seal of the Court of Sri K. C. Das, Magistrate, the other four affida¬vits bear fake seal. 3. The opposite party filed an application under Sec. 482, of the Code of Criminal Procedure, 1973 (in short, ‘the Code’) with the prayer to quash the order of cognizance and at the stage of hearing of that application on 3.12.1998 that application was disposed of because the opposite party (petitioner in that case) stated that he would move an application in the Court below with the prayer to recall the order of cognizance. Thus, this Court directed that if any such application would be filed, that be heard and disposed of in accordance with law. The opposite party filed that application and the impugned order is the out come as the decision on that application. 4. Learned Addl. C.J.M., Bhubaneswar keeping in view the aforesaid facts and the ratio in the cases of Manoranjan Khatua v. State of Orissa (1989) 2 OCR 236 and Hiralal Jain v. Delhi Administration, AIR 1972 SC 2598, held that since the deponents were not personally known to the opposite party and he did indemnify them in good faith, therefore, that fact alone does not make out a case of conspiracy or cheating. He further held that when the seal of the Magistrate found genuine in four affidavits there was no reason for the opp. He further held that when the seal of the Magistrate found genuine in four affidavits there was no reason for the opp. party to obtain fake seal for the remaining four affidavits and at least there is no evidence on record that petitioner manufactured or acquired any such fake seal to commit the aforesaid offences. Taking that view in the matter he recalled the order of cognizance. In that Court prose¬cution relied on the case of M. Veerabhandra Rao v. Tek Chand, AIR 1985 SC 28 , and the learned Addl. C.J.M. recorded the reason that the ratio in that case is distinguishable and not applicable. 5. Prosecution (petitioner) as well as the opposite party reiterated their respective argument of the Court below and also relied on the same citations (supra). On a perusal of the im¬pugned order and the aforesaid citations this Court finds that the Court below has gone wrong in misappreciating the facts and not considering the law while recalling the order of cognizance. The important aspect in the whole case was completely forgotten by learned Addl. C.J.M. that when an advocate identifies a depo¬nent and attests his signature on the affidavit, he also remains present before the Magistrate to identify him where the seal of the Magistrate is being put and signature is being given after oath and affirmation. When four such affidavits are with fake seal, the innocence pleaded by the advocate is a matter to be tested in the trial and not to be given an window exit with pious observation. The case of M. Veerabhadra (supra) was wrongly recorded to be distinguishable. Though the facts in that case is not same but the circumstances relating swearing of affidavit stands in similar footing. In that case, it was alleged that the appellant as an advocate identified a wrong person who imperson¬ated the respondent. Appellant’s plea was that respondent ap¬proached with an affidavit where the name of the respondent was already signed at the place where the deponent was to sign. Hon’ble apex Court while disbelieving that plea held that the deponent not only was required to be identified by the advocate but also the deponent was required to sign before the officer administering the oath and if the respondent was the person who sent and sworn the affidavit then his signature should have been available. Hon’ble apex Court while disbelieving that plea held that the deponent not only was required to be identified by the advocate but also the deponent was required to sign before the officer administering the oath and if the respondent was the person who sent and sworn the affidavit then his signature should have been available. In this case, same analogy is applicable relating the Magistrate’s seal when the deponent with the identifying advocate are required to remain present. On the other hand, it would have been appropriate for the learned Addl. C.J.M. to record a finding that the other two citations (as above) relied on by the opposite party are distinguishable and not applicable because in those cases the allegation of identifying wrong persons (impersonating) was the issue. 6. Recall of an order of cognizance is not a routine power to be casually exercised by a Court of original jurisdiction inasmuch as he takes cognizance of the offence after perusal of record and being satisfied about existence of a prima facie case. It is when the accused appears and points out glaring lacunae or legal wanting which necessitates non-prosecution of the offender because of a total absence of a prima facie case that in such exceptional circumstance a case may be considered for recalling the order of cognizance not by the original Court but may be by the High Court in exercise of the inherent power inasmuch as the offence involved is governed by the procedure for trial of war¬rant cases as provided in Chapter XIX of the Code. It is only at the stage of Section 239 of the Code that the trial Court can discharge an accused only if he comes to a conclusion that the charge against the accused is groundless. Learned Addl. C.J.M. for reasons best known to him, neither examined the legal aspects nor properly analysed the factual aspect and by advancing an illogical logic recalled the order of cognizance. Therefore, the impugned order is set aside. If the petitioner has been dis¬charged from the bail bonds in the meantime, then if he surren¬ders and applies for bail within a period of four weeks, he may be allowed to go on bail on appropriate terms and conditions which shall appear just and proper to the Court below. Therefore, the impugned order is set aside. If the petitioner has been dis¬charged from the bail bonds in the meantime, then if he surren¬ders and applies for bail within a period of four weeks, he may be allowed to go on bail on appropriate terms and conditions which shall appear just and proper to the Court below. The above order does not prevent the petitioner to raise the legal issue and the factual lacuna, if any, at the stage of consideration of charge nor that debars the Magistrate to consider the same strictly in accordance with law. It is wished that the trial Court shall consider such aspect freely and fairly and not being influenced by anything stated in this order because this order is confined to examine correctness or otherwise of the impugned order of recall of the order of cognizance. 7. For the reasons indicated above, the Criminal Revision is allowed by setting aside the impugned order. Revision allowed.