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2001 DIGILAW 482 (ORI)

Purna Chandra Patra v. Dasharath Patra

2001-11-05

P.K.TRIPATHY

body2001
JUDGMENT P. K. TRIPATHY, J. — Complainant in I.C.C. No. 296 of 1990 presently pending in the Court of J.M.F.C., Balasore (originally instituted in the Court of S.D.J.M.,Balasore) has prayed for interfering with the order dated 16.9.1994 of the trial Court and the judgment dated 25.11.1995 of the Sessions Judge, Balasore in Criminal Revision No. 62 of 1994. The two accused persons who were discharged under Section 245 (1) of the Code of Criminal Procedure, 1973 (in short, ‘the Code’) as per the impugned order are the opposite parties 1 and 2 in this application under Sec¬tion 482 of the Code. 2. The case of the petitioner is that till the stage of Rent Camp he was the sole recorded tenant of three plots corre¬sponding to Major Settlement Plot Nos. 490, 546 and 1801, totally measuring Ac. 2.11 decimals. The complainant being in Government service, remains outside his native place, and taking advantage of that, as alleged, the opposite party members, who are his broth¬ers, with the son of opposite party No. 1, viz. Arun Kumar Patra, forged the signature of the petitioner in an application present¬ed before the Settlement Officer for recording of the said land jointly in the name of the complainant and the opposite party members. It is alleged by the petitioner that the opposite party members who are his elder brothers and accused Arun who is his nephew made the conspiracy with a Moharir and some staff in the Settlement Office and in furtherance of that accused Arun forged the signature of the petitioner in the application as well as in the notice issued from the office of the Settlement Officer so as to get that land recorded jointly. Though the Moharir and Amin in the Settlement Office were added as accused Nos. 4 and 5 but after recording the initial statement of the complainant while taking cognizance of the offence under Sections 419/465/468, I.P.C. learned Magistrate declined to issue process against the said two persons on the ground that their act is covered by the direction issued by their superior officer. Therefore, the said two persons are no more accused persons in the criminal proceed¬ing. 3. After issue of process, on the appearance of the ac¬cused persons, the hearing before charge was taken up. Therefore, the said two persons are no more accused persons in the criminal proceed¬ing. 3. After issue of process, on the appearance of the ac¬cused persons, the hearing before charge was taken up. At that stage, petitioner examined himself as P.W.No.1 and another rele¬vant witness as P.W.No.3 who had seen accused Arun forging the signature of the petitioner in presence of the opposite party members, while the application was presented in the Settlement Office. P.W. No. 2 is an employee, i.e, the Record Keeper in the concerned Settlement Office and he produced and proved certain documents in the relevant office records. After perusal of such evidence, learned Magistrate framed charge under Sections 419 and 468, I.P.C. against accused Arun Kumar Patra but discharged the opposite party members under Sub-section (1) of Section 245 of the Code, and that order is under challenge. 4. While discharging the opposite parties under Sub-section (1) of Section 245 of the Code, learned Magistrate has recorded the reason that they did not forge the signature. Learned Sessions Judge after making a synopsis of the facts involved, did not appropriately examined the point canvassed by the petitioner and concurred with the impugned order of learned Magistrate. 5. At the out set it may be pointed out that an objection was raised by the opposite party members for pursuing this appli¬cation under Section 482 of the Code, on the ground that in essence and disguise this is a second revision application by the complainant though Section 397 (3) of the Code prohibits enter¬taining second revision application by the same party. While not disputing to the aforesaid position of law, learned counsel for the petitioner argued that in appropriate cases to prevent miscarriage of justice or patent illegality, inherent power can be invoked to save the proceeding from abuse of process of law or for securing the ends of justice. Therefore, it is necessary to find out whether the impugned order suffers from such illegality that non-interference will result in miscarriage of justice or failure of ends of justice. 6. On a careful perusal of the evidence on record and the nature of the allegation, so also the provision in Section 245 (1), this Court finds that the trial Court on an incorrect ap¬proach to the evidence on record wrongly discharged the opposite party members. 6. On a careful perusal of the evidence on record and the nature of the allegation, so also the provision in Section 245 (1), this Court finds that the trial Court on an incorrect ap¬proach to the evidence on record wrongly discharged the opposite party members. In that context, the provision in Sub-section (1) of Section 245 of the Code clearly lays down the law that upon taking of the evidence referred to in Section 244 (1) and upon consideration of the same, if the Magistrate shall be of the opinion that no case against the accused has been made out, which, if unrebutted, would warrant his conviction, then in such case only, the Magistrate should record the order of discharge. In this case, learned Magistrate has not taken into consideration if the substratum of the allegation in the complaint and the relevant and corroborating oral and documentary evidence avail¬able on record if not rebutted would warrant a conviction for the offences under Sections 419/458/34, I.P.C. Whether it is a case of conspiracy or of common intention in presence or absence of party is a matter to be properly considered while deciding the case on merit in accordance with the provisions in Sections 246 to 248 of the Code. That espect was not at all considered by the learned Magistrate and he disbelieved existence of a prima facie case because of absence of an eye-witness in that respect. As noted above, learned Sessions Judge also followed the path with¬out properly considering the evidence regarding existence of a prima facie case. Because of the aforesaid discussion, this Court does not conclude that charge must be framed against the opposite party members. On the other hand, the aforesaid discussion is to advise the Magistrate to consider the evidence on its true and proper perspective keeping in view the ingredients of the penal provision in the Indian Penal Code as well as the provision in Sub-section (4) of Section 245 of the Code. 7. If there is existence of prima facie case, an accused should not be given a gate pass from the criminal case by adopt¬ing a short-cut method. That shall be a subterfuge of the crimi¬nal justice system. Similarly, if the accused prima facie appears to be innocent he should not be deprived of the benefit as available to him under the law. That shall be a subterfuge of the crimi¬nal justice system. Similarly, if the accused prima facie appears to be innocent he should not be deprived of the benefit as available to him under the law. To decide that issue, the fact, evidence and the law has to be correctly read, clearly understood and properly followed to arrive at the right conclu¬sion. Failure in that respect shall result in miscarriage of justice and defeat the purpose for which the law has been enacted and Courts have been established. Therefore, in this case since this Court finds that the aforesaid approach by the learned Courts below has resulted in miscarriage of justice, therefore, this Court is inclined to invoke the inherent power, because there is no other remedy available to the petitioner if it is not interfered with. 8. Accordingly, while setting aside the impugned order, learned Magistrate is directed to consider the evidence afresh after affording opportunity of hearing to the parties and to pass appropriate order in the manner indicated above. At the risk of the repetition it is emphasised that this Court has not expressed any opinion on merit, and that is a matter which is left to be considered by learned Magistrate in due exercise of his judicial mind. In view of the above order, the opposite party members are directed to appear before the Magistrate by 5th December, 2001. In the event of their failure, coercive steps be taken to secure their attendance. In the event they shall appear in time, then it be considered afresh relating to consideration of charge and till that date the opposite party members be permitted to go on bail on executing P.R. bonds of Rs. 3,000/- (Rupees three thousand) each. Learned Magistrate shall do well to complete the aforesaid process within a period of two weeks from the date of hearing the parties. The matter is remanded accordingly. 9. The impugned order is set aside, and the Criminal Misc. Case is allowed in the aforesaid manner. Crl. Misc. Case allowed.