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2002 DIGILAW 179 (ORI)

BRUNDABAN SAHU v. PADMABATI BEHERA

2002-03-20

L.MOHAPATRA

body2002
JUDGMENT : L. Mohapatra, J. - The petitioners in this application u/s 482 Cr.P.C. have challenged the legality and propriety of the orders dated 31.7.1996 and 6.8.1996 passed by the learned S.D.J.M., Chatrapur in G.R. Case No. 30 of 1996 entertaining a protest petition and directing for enquiry u/s 202 Cr.P.C. The order dated 30.8.1996 is also challenged in which cognizance of offence Under Sections 452, 354, 380, 294/34 of the Penal Code has been taken. 2. The case of the petitioners before this Court is that on the basis of an F.I.R. lodged by the opposite party No. 1 investigation was taken up and charge sheet was filed on 9.3.1996 for commission of offence u/s 294/23 of the Penal Code. The petitioners appeared in the Court and were released on bail. While the matter stood thus on 31.7.1996 the informant filed a protest petition with a prayer to conduct an inquiry and to take cognizance for commission of offence Under Sections 452, 395, 354, 327, 341, 294/34 of the Penal Code, The said protest petition was treated as a complaint and inquiry u/s 202 Cr.P.C. was taken up and on basis of materials collected during enquiry, the learned Magistrate took further cognizance for offences Under Sections 452, 354, 380, 294 and 34 of the Penal Code. 3. Shri Choudhury, learned counsel appearing for the petitioners challenges the aforesaid orders basically on two grounds. (1) The Magistrate once having taken cognizance on the basis of the charge sheet was left with no further jurisdiction to take cognizance for the second time, which amounts to review of the earlier order taking cognizance. (2) It was open for the learned Magistrate to treat the protest petition as an independent complaint and could not have taken up inquiry u/s 202 Cr.P.C. while dealing with the protest petition in the G.R. Case itself. 4. Shri Choudhury in course of his submission drew the attention of the Court to the relevant provision of the Code of Criminal Procedure and submitted that once the Magistrate has taken cognizance on the basis of the charge sheet he is left with no further jurisdiction to either review his own order or take cognizance for the second time. If the Magistrate was satisfied that some other offences have also been committed it was open to him to take into consideration such facts at the time of trial. If the Magistrate was satisfied that some other offences have also been committed it was open to him to take into consideration such facts at the time of trial. He further submitted that in the G.R. Case the protest application having been filed, the learned Magistrate should have treated it as an independent complaint and no inquiry u/s 202 Cr.P.C. could be taken up in the G.R. Case itself. 5. Shri Dhal, learned counsel appearing for the Opp. party No. 1 submitted that there was no bar for the learned Magistrate to take cognizance on the protest petition and the same does not amount to review of the cognizance order taken in the G.R. case. Therefore, the learned Magistrate was well within his jurisdiction to pass two orders taking cognizance, one in G.R. Case and the other in protest petition. So far as the second point is concerned, Shri Dhal submitted that though the Magistrate should have treated the protest petition as an independent complaint merely taking up an inquiry u/s 202 Cr.P.C. in the G.R. Case may be an irregularity but cannot be called an illegality. 6. In the light of the arguments advanced, I now proceed to examine the points raised by the learned counsel appearing for the parties. Section 173 of the Code of Criminal Procedure prescribes that every investigation shall be completed without unnecessary delay and Sub-section 2(i) of Section 173 prescribes that once the investigation is completed the Officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government giving details as indicated in the said sub-section. Section 190 of the code empowers the Magistrate to take cognizance on a Police report. The same provision also empowers the Magistrate to take cognizance upon receipt of a complaint of facts which constitutes an offence. The concept of filing a protest petition was laid down by the Apex Court in a decision reported in Bhagwant Singh Vs. Commissioner of Police and Another. The Apex Court in the said decision held as follows ; "Now, when the report forwarded by the Officer-in-charge of a police station to the Magistrate under Sub-section 2(i) of Section 173 comes up for consideration by the. Magistrate, one of two different situations may arise. Commissioner of Police and Another. The Apex Court in the said decision held as follows ; "Now, when the report forwarded by the Officer-in-charge of a police station to the Magistrate under Sub-section 2(i) of Section 173 comes up for consideration by the. Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under Sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under Sub-section (3) of Section 156, where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or take the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognized by the provisions contained in Sub-section (21) of Section 154, sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or taken the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied him under Sub-section 2(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report of the informant. Moreover, in any went, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate." 7. Referring to the said decision, this Court also in a decision reported in 1989 2 OCR 554 (Srinibas Balabantray v. Additional Sessions Judge, Koraput, Jeypore and Anr.) held that when a final form is submitted notice to the informant is mandatory. From the aforesaid two decisions, it is very clear that when a final form is submitted, it is obligatory on a part of a Magistrate to issue notice to the informant. This right to the informant has been given if he is not satisfied with the manner of investigation done by the Officer-in-charge of the police station where the First Information Report was lodged. As per the decision of the Apex Court, the informant has a right of an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of offence and issue process. In my view, the same concept should also apply to the cases where the offences alleged are not taken note of entirely during investigation. The learned counsel for the petitioner referred to a decision of this Court in Hrushikesh and Others Vs. Krushna Chandra Ghadei. Referring to the said decision, it is submitted that upon investigation by police if a final form is submitted and a protest petition is also filed, the Magistrate may, either proceed with the protest petition as a complaint case or call for a charge sheet and take no further action on the complaint petition. Similar was the view taken in another decision of this Court in Mahabir Prasad Agarwala and Another Vs. The State, This Court took note of decision of Mahabir Prasad Agarwal's case in case of Srinibas Balabantaray (1989) 2 OCR 554 and referring to a decision of the Apex Court in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, held that observation of this Court in the aforesaid decision that the Magistrate can call for a charge sheet is not good law. Dinesh Mishra, held that observation of this Court in the aforesaid decision that the Magistrate can call for a charge sheet is not good law. When all the three decisions are examined, it is found that when a final form is submitted and the same is accepted by the Magistrate, he has no further jurisdiction to revise his own order and call for a charge sheet. Therefore, the only course open for him is to treat the protest petition if filed as a complaint petition and proceed in accordance with provision as contained in Chapter XV of the Cr.P.C. In the present case, though allegations were made with regard to commission of offence under several provisions of the IPC, charge sheet was submitted for offence u/s 294/34 IPC. On the basis of protest petition, upon enquiry learned Magistrate found that other offences had also been committed but the investigating agency did not take note of the same during investigation and did not submit charge sheet in respect of those offences. In the High Court's view and in view of the reasons stated above, there is no illegality in entertaining the protest petition even if charge sheet is filed in the case and taking cognizance of certain offences which were not taken note of by the investigating agency while submitting charge sheet. 8. Coming to the second point raised by the learned counsel for petitioner, law is well settled that a protest petition should be treated as a complaint and the procedure prescribed under Chapter XV of the Cr.P.C. is to be followed. In the present case, instead of treating the protest petition as a complaint, learned, Magistrate has passed order taking cognizance on the protest petition in the G.R. Case. In High Court's view, the impugned order passed in the G.R. case is an irregularity and not an illegality. I, therefore, do not find any merit in this application and the same stands dismissed. Final Result : Dismissed