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2002 DIGILAW 501 (ORI)

SANDEEP MOHANTY v. KUMARI SARSWATI KAR

2002-08-07

P.K.MOHANTY

body2002
JUDGMENT : P. K. Mohanty, J. - None appears for the petitioners in spite of repeated calls. Sri N. K. Mishra, learned counsel is present for Opp. party No. 1. 2. The petitioners assail the order of cognizance dated 8.12.1997 and the order dated 9.11.1998 of the learned S.D.J.M., Baripada refusing to recall the said order. 3. The brief facts of the petitioners' case is that their father lodged an F.I.R. against the Opp. party No. 1's mother and brother on 25.8.1997 and the police after investigation submitted a Charge Sheet against her mother and brother u/s 326/34, IPC in Baripada Town P.S. Case No. 154 of 1997 corresponding to G.R. Case No. 714 of 1997 of the Court of learned S.D.J.M., Baripada. Coming to know the F.I.R. the Opp. party No. 1 lodged an F.I.R. alleging therein that the petitioners have forcibly entered into her house, carried away her to their house and assaulted. The F.I.R. was registered as Baripada Town P.S, Case No. 155 of 1997 corresponding to G.R. Case No. 715 of 1997 under Sections 448, 341, 294/34, IPC. The petitioners further asserted that Opp. party No. 1 filed another complaint suppressing the fact that the Opp. party No. 1's mother has lodged an F.I.R. against the petitioners. However, looking to the assertions made in the complaint petition and the oral F.I.R. lodged at the Police Station, the learned S.D.J.M. made an enquiry u/s 202, Cr.P.C. and took cognizance of the offences u/s 323/34, IPC against the petitioners. The petitioners moved this Court in Criminal Misc. Case No. 1116 of 1998 for quashing I.C.C. Case No. 87 of 1997 filed by Opp. party No. 1 against the petitioners. This Court, on hearing the parties, by order dated 27.7.1998 however, disposed of the petition by directing the learned S.D.J.M., Baripada to stay the complaint case till disposal of G.R. Case No. 715 of 1997 in view of Section 210 of the Code of Criminal Procedure. The Final Form was submitted in the said G.R. Case reporting the case to be false and it is stated that no protest petition was filed as against the said Final Report. The petitioners then filed an application before the learned Magistrate to reconsider the matter and to recall/rescind the order of cognizance which has been rejected. The Final Form was submitted in the said G.R. Case reporting the case to be false and it is stated that no protest petition was filed as against the said Final Report. The petitioners then filed an application before the learned Magistrate to reconsider the matter and to recall/rescind the order of cognizance which has been rejected. It is contended that the learned Magistrate without appreciating the implication of the matter, has disposed of the application by order dated 9.11.1998. According to the petitioners, the continuance of the complaint case will be a harassment specially when the police after due investigation has found the allegation to be false. In G.R. Case No, 715 of 1997, prayer is, therefore, made for quashing the order of cognizance taken on the basis of the complaint filed by Opp. party No. 1. 4. Sri N. K. Mishra, learned counsel for the Opp. party No. 1 while submitting that there is absolutely no case for the petitioners, for which the order of cognizance need to be quashed, brought to the notice of the Court that in the earlier application filed by the petitioners to quash the order of cognizance, this Court did not find any reason to quash the order, but however, in view of the provision of Section 210, Cr.P.C. directed the complaint case to be stayed during the time when the police case is under investigation. Since the said case has already been finalised, there is no illegality in revival of the complaint case. It is further submitted that the final report in a G.R. Case investigated into by the police would not debar a party from filing the complaint petition. Sri Mishra has referred to a decision of this Court in Jagannath Das and Others Vs. State and Another, wherein Hon'ble Justice G. B. Patnaik, as His Lordship then was held that when a complaint case is registered on the basis of a complaint made by the complainant and the Magistrate in course of enquiry or trial into the said complaint comes to know that an investigation by the police is in progress in relation to the self-same offence, then he shall stay the proceeding before him on the basis of the complaint and shall call for a report on the matter from the Police Officer conducting investigation. If he does not stay his hand as provided u/s 210(1), Cr.P.C. and proceeds with the complaint case, then the order taking cognizance or the order directing an enquiry u/s 202, Cr.P.C. cannot be said to be without jurisdiction. Where he stays his hand u/s 210(1), Cr.P.C. the proceeding itself is revived if the report submitted by the police does not relate to any accused in the complaint case or if no cognizance of any offence is taken on the basis of the report submitted by the police and the Magistrate would, therefore, proceed with the enquiry or trial which had been stayed by him u/s 210(1), Cr.P.C. 5. In the earlier petition u/s 482, Cr.P.C. filed by the petitioners for quashing the order of cognizance, this Court on consideration did not like to interfere in that order, but however, only directed that the complaint case shall remain stayed till completion of investigation in the G.R, Case. The investigation of the G.R. Case, being over the Final Form submitted by the police and accepted by the learned Magistrate, the complaint case has to revive and proceed in accordance with law. In such view of the matter, if the learned Magistrate has passed orders to proceed with the complaint case, no exception can be taken and it calls for no intervention in the present application. The Criminal Misc. Case is thus dismissed being devoid of merit. Final Result : Dismissed