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2002 DIGILAW 694 (ORI)

BANAMALI ROUT v. STATE OF ORISSA

2002-10-28

P.K.TRIPATHY

body2002
JUDGMENT : P.K. Tripathy, J. - Petitioner is the husband of informant Smt. Sanjulata Rout. On the basis of the F.I.R lodged by Smt. Rout, Basudevpur Police-Station Case No. 9 of 2000 was registered for the offence u/s 498-A, I.P.C. and Section 4 of the Dowry Prohibition Act, 1961. The corresponding case in the Court of J.M.F.C. Basudevpur is G.R. Case No. 104 of 2000. Investigation was directed against ma Petitioner as well as his parents and elder brothers. On completion of investigation Final Form was submitted by the Investigating Officer. In the opinion of the Investigating Officer though the informant, her father and brother who were examined in course of investigation, supported the allegation of demand of dowry and the informant stated about the ill-treatment due to non-payment of dowry besides the factum of desertion. yet his investigation revealed that the informant was adamant and misbehaving in her attitude which consequentially led to voluntarily leaving the matrimonial home by her. The Investigating Officer further opined that all the articles presented during the marriage were returned to the informant under a zimanama executed by her father After perusal of that Final Form and the statement on record learned J.M.F.C., Basudevpur on 8.5.2000 passed the impugned order by taking cognizance of the aforesaid offence on the ground that the statements of the Informant and her father and brother disclose existence of a prima facie case for the said offences. Petitioner has thus prayed to quash the order of cognizance by invoking the inherent power on the ground that continuance of the criminal proceeding against him is abuse of process of Court inasmuch as the uncorroborated and inconsistent statement of the aforesaid three witnesses do not make out a prima fact case for the alleged offenses and learned J.M.F.C. should not have refused to accept the Final Form. 2. In course of argument, drawing attention of the Court to the statements of the informant, his father and brother, learned Counsel for the Petitioner argued that there is contradiction relating to the manner in which dowry of Rs. 20,000/- was demanded, the factum relating to deserting the informant by the Petitioner and total absence of any particular relating to any ill-treatment meted to her by any of the accused persons. Accordingly, he prayed to quash the order of cognizance. 3. 20,000/- was demanded, the factum relating to deserting the informant by the Petitioner and total absence of any particular relating to any ill-treatment meted to her by any of the accused persons. Accordingly, he prayed to quash the order of cognizance. 3. Petitioner also drew attention of the Court to a glaring circumstance that though on 6.5.2000 learned J.M.F.C. Basudevpur passed order to issue notice to the complainant to raise objection (Protest), if any, on the Final Form submitted by the Investigating Officer and notwithstanding that order on 8.5.2000 he suo motu advanced the case record and passed the impugned order. According to the Petitioner that gives the tale tell circumstance when no application was moved by the informant or the prosecution for advancing the record or to pass any order on the Final Form. In view of such contention of the Petitioner on 28.3.2001 this Court not only desired to peruse the record but also learned J.M.F.C. Basudevpur namely Sri B.K. Nayak was directed to submit a report explaining the circumstance which necessitated him to advance the case record and to pass the impugned order. After perusing his report on 7.5.2001 this Court being not satisfied about the circumstance explained in the report of the Magistrate and in course of heading not avoiding possibility of any adverse remark against Sri Nayak this Court thought it proper to afford an opportunity of hearing to Sri Nayak, J.M.F.C. as well. In response to that Mr. Nayak not only appeared personally on a date but also thereafter he engaged a counsel namely Sri Prasanta Kumar Mohanty (2) and associates to argue on his behalf. Learned Counsel appearing for Sri Nayak J.M.F.C advance argument requesting to accept the report submitted by Sri Nayak and in the alternative to excuse him for the lapses, if any, found in dealing with the case and passing the impugned order. 4. In view of the aforesaid circumstance this Court proposes to note the manner in which the order of cognizance was passed. 5. F.I.R was lodged on 4.2.2000. By then the case was pending in the Court of S.D.J.M. Bhadrak. On 1.4.2000 the case record was received on transfer in the Court of J.M.F.C. Basudevpur inasmuch as new Court was opened there. On 6.5.2000 Final Form was placed before the J.M.F.C., Basudevpur and that order reads as hereunder: F.R.M.F. No. 33 dt. 5. F.I.R was lodged on 4.2.2000. By then the case was pending in the Court of S.D.J.M. Bhadrak. On 1.4.2000 the case record was received on transfer in the Court of J.M.F.C. Basudevpur inasmuch as new Court was opened there. On 6.5.2000 Final Form was placed before the J.M.F.C., Basudevpur and that order reads as hereunder: F.R.M.F. No. 33 dt. 1.4.2000 u/s 498(A)/34 I.P.C. 4 D.P. Act received. Issue notice to the complainant for objection if any to be filed in person within 15 days after receipt of the same. Hand over the record to B.C. for further action. Thereafter, the order of cognizance was passed on 6.5.2000 mentioning that the record was put up before the Magistrate to accept the Final Form and to issue notice to the complainant for objection, if any. In his report submitted to this Court Mr. Nayak has stated that: In obedience to Hon'ble Court's order No. 10, dt. 28.3.2001 in Criminal Misc. Case No. 4353/2000, communicated in Hon'ble Court's letter No. 7004, dt. 29.3.2000. I beg to state that on 1-4-2000. I received 3700 criminal cases on transfer by the C.J.M. Bhadrak on which date the Court of J.M.F.C. started functioning at Basudevpur. On 1.4.2000 all the 2700 case records were put up before me for passing orders and the C.S.I, had scribed the order sheets of the case records pertaining to his file. I had not time to go into detail of each case record and put my signature in the order-sheets scribed by the C.S.I. On 6.5.2000, I was also busy in respect of the case records other than G.R. case records in which charge-sheets were yet to be filed as I had to cope with the other criminal case records having the same strength of staff. On 6.5.2000 the C.S.I, also obtained my signature in routine manner in G.R. Case No. 104/2000 and at that time I had not gone detail into the said case record. On 8.5.2000, the C.S.I., again placed that case record insisting that the final report was to be accepted. On 6.5.2000 the C.S.I, also obtained my signature in routine manner in G.R. Case No. 104/2000 and at that time I had not gone detail into the said case record. On 8.5.2000, the C.S.I., again placed that case record insisting that the final report was to be accepted. At that time, I went detail into the case record as the C.S.I. had obtained order from me on 6.5.2000 to issue notice to the informant for filing the objection, I found that there was sufficient material to take cognizance u/s 498(A)34 of the IPC and Section 4 of the D.P. Act and thought that it was not necessary to call for objection from the informant. The case record has been advanced on 8.5.2000 but was placed before me by the C.S.I to accept the final report before issuance of notice to the informant, as the record could not be put up on 7.5.2000 to which the case was posted prior to-receipt of the case by me as 7.5.2000 was Sunday. The explanation that while signing of the order sheet on 6.5.2000 he had not applied his mind to the materials on the case record because of the transfer of thousands of cases to that Court and two days thereafter he was being able to look to the record, perused the statement and passed order for cognizance without indication anything in the case record about the facts noted in the report is Suggestive of the fact that the explanation furnished by the officer does not appear to be prima facie genuine or true. However, without passing any comment on that this feels it proper that the matter should be enquired into in the administrative side by the High Court and in the meantime if the officer is due for promotion and if that She shall be considered accordingly by the High Court on its administrative side, then such promotion should be subject to the result of the inquiry and the disciplinary action, if any. taken as an outcome of the inquiry. Judiciary is not respected for its knowledge or wisdom only but for the faith which people repose for impartiality and transparency. taken as an outcome of the inquiry. Judiciary is not respected for its knowledge or wisdom only but for the faith which people repose for impartiality and transparency. The aforesaid conduct of the Magistrate in deciding on 6.5.2000 to issue notice to complainant with a direction to hand over the case record to the Bench Clerk because of the fact that the order sheet was written by the C.S.I, could not have changed the sequence of events on 8.5.2000 i.e. one day after. If at all there was genuineness in dealing with the case on 8.5.2000 that circumstance would have been explained in the order sheet. A Court is not an uncrowned King so as to do whatever he pleases. His act must remain confined to the parameters of law procedure and sufficient indication for any exceptional-circumstance. If the C.S.I put up the record on 8.5.2000 the Magistrate was not bound to attend to that record when that was not the date fixed for taking of that case. On the other hand, since no date had been fixed for the next posting of the case from 6.5.2000 learned J.M.F.C. should have indicated the reason for which he had to take up the case 8.5.2000 sue motu by recalling the previous order with necessary implication. For the reasons stated above, the Registry shall place the matter before Hon'ble the Chief Justice and after obtaining proper order shall process the matter relating to taking disciplinary action in accordance with law. Enquiry be conducted on its own merit and in accordance with law and without being influenced by any observation made above. 6. So far as the merit of the contention is concerned, relating to the order of cognizance this Court does not find any merit in the argument advanced by the Petitioner inasmuch as statement of the informant, her father and brother corroborate to the circumstances that there is allegation of ill-treatment and cruelty besides desertion because of non-fulfilment of the demand of dowry of Rs 20,000/-. But the impugned order of cognizance is completely silence as to against which of the accused persons such allegation is prima facie made out. But the impugned order of cognizance is completely silence as to against which of the accused persons such allegation is prima facie made out. When admittedly the parents in law and husband's brothers have been arrayed AS accused in addition to the husband as the principal accused, it was but necessary for the J.M.F.C. to prima facie appreciate the evidence the evidence and to pass appropriate order with respect to issue of process u/s 204 Code of Criminal Procedure. That being lacking, while not interfering with the order of cognizance, because cognizance is taken of an offence and not against an offender; learned J.M.F.C. Basudevpur is directed to peruse the Case Diary afresh and to consider whether process u/s 204 should be issued against any person including the Petitioner. Accordingly, the order of issue of process u/s 204 is quashed and the case is remitted for consideration in the manner indicated above....... The Criminal. Misc. case is accordingly allowed. L.C.R. be sent back to the Court below immediately but xerox copies of the order sheets be retained by the Registry for proposed administrative action.