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2003 DIGILAW 15 (ORI)

BIJAYA DAS v. STATE OF ORISSA

2003-01-09

P.K.MOHANTY

body2003
P. K. MOHANTY, J. ( 1 ) THIS is an application under Section 482, Cr. P. C. for quashing the order of the learned Judicial Magistrate First Class, (Rural), Cuttack taking cognizance under Sections 376/294/506/34, IPC and in issuing summons to the accused persons. ( 2 ) THE short fact of the prosecution case is that on 11-4-1975 at about 1-30 p. m. , informant Latika Ojha (Opp. Party No. 2 herein) lodged a complaint alleging therein that on 10-4-1993 evening at about 6-30 p. m. she had been to the area near the pond to attend the call of nature and after attending the call of nature, while she was going towards the pond, accused/- etitioner No-1 Bijaya Das caught held of her, squeezed her breasts and laid her down on the ground, made her naked, torned the blouse and forcibly committed rape on her. When she tried to shout, she was gagged by the saree, but somehow she was able to throw her voice and at that point of time, Adhikari Antaryami Das reached the spot. Seeing him, accused Bijaya left her and ran away. Thereafter, her mother-in-law also reached the spot and she narrated the incident to her. When her father-in-law heard about the incident, he went to the house of Bijaya Das to ask him about the incident, but at that the accused's father Biswambar Das, petitioner No. 2 and other accused persons came to her house being armed with deadly weapons like Bhujali, thenga etc. and started shouting. Bijaya Das was holding a Katari. The accused persons were asking the informant and her family members to come out from the house, so that they will finish them up and burn their house. It is alleged that earlier also at 7'o clock accused Bijaya Das and her elder mother came to their house, abused them and then went to the house of witness Antaryami Das, She however stated that earlier on 11-4-1995, she lodged a complaint. But out of shame did not mention about the commission of rape. The allegation is corroborated by the statements of eye-witness Adhikari Antaryami Das recorded under Section 161, Cr. P. C. The police conducted the investigation, observing the formalities and having found a prima facie case, submitted the charge-sheet, on consideration of which the learned Magistrate has taken cognizance, which is sought to be questioned. The allegation is corroborated by the statements of eye-witness Adhikari Antaryami Das recorded under Section 161, Cr. P. C. The police conducted the investigation, observing the formalities and having found a prima facie case, submitted the charge-sheet, on consideration of which the learned Magistrate has taken cognizance, which is sought to be questioned. ( 3 ) THE contention of the learned counsel for the petitioners is that there is absolutely no material against the petitioners to implicate them in the alleged offence under Section 376/506, IPC and therefore, the learned Magistrate could not have taken cognizance of the offences and issued process. It is alternatively contended that accepting the allegations and the materials collected during the investigation and accepting it on its face value, no case of rape is made out against the petitioners, inasmuch as, even if a case of rape can be attributed as against petitioner No. 1, all the other accused persons could not have been entangled for rape. It is the submission of the learned counsel that so far as petitioner Nos. 2 to 6 are concerned, there is only allegation that they had abused, threatened and assumed the informant's family members and therefore cognizance under Section 378, IPC could not be taken. It is contended that taking cognizance against all the accused persons under Section 378, IPC, is patently illegal, inasmuch as, otherwise also offences alleged could not have been clubbed together since they are two different and distinct incidents, one of rape and the other, the protest made by the Victim's family members and subsequent threat and alleged assault by the accused persons. ( 4 ) LEARNED counsel for the petitioners raised contentions making a mountain out of molehill, Sri J. Patnaik, learned Sr. Advocate and Sri B. P. Ray, learned counsel present in Court during argument were requested by the Court to assist as amicus curiae and were heard along with the learned counsel for the petitioners. The contention of the learned counsel that the offences alleged against petitioner No. 1 and petitioner Nos. 2 to 5 being different, cognizance, could not have been taken against all the accused persons under Sections 376/294/506/34, IPC has to be rejected in limini. It is the well settled principle of law that a Court takes cognizance of the offences and not against the offenders. 2 to 5 being different, cognizance, could not have been taken against all the accused persons under Sections 376/294/506/34, IPC has to be rejected in limini. It is the well settled principle of law that a Court takes cognizance of the offences and not against the offenders. The process is issued to the offenders as accused persons to appear and face the trial. Charges are framed in terms of the allegation and evidence on record as against each of the accused persons. Cognizance is taken of an offence and not as against an offender. Section 190 of the Code of Criminal Procedure may be quoted hereunder :"190. Cognizance of offences by Magistrate - (1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any Magistrate of the Second Class especially empowered in this behalf under sub-section (2), may take cognizance of any offence. " (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other then a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offence as are within his competence to inquire into or try. " ( 5 ) COGNIZANCE is taken of an offence and not as against an offender, cognizance is the point, when a Magistrate first takes judicial notice of an offence. Cognizance, as it is also does not necessarily mean the commencement of the proceeding against anyone. Institution of a case is an act of an investigator and taking cognizance by a Magistrate is a judicial act, when the Magistrate comes to the conclusion that there is a case to be enquired into. Section 190 of the Code indicates cognizance of an offence and not to deal with the offenders. The offenders may or may not be known by name when the complaint is made and taken cognizance of. Section 190 of the Code indicates cognizance of an offence and not to deal with the offenders. The offenders may or may not be known by name when the complaint is made and taken cognizance of. It is also well settled that when a police report is filed under Section 173 (2) of the Code, otherwise called Charge-sheet, it is open to the Magistrate after exercise of his judicial discretion to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate would be perfectly justified in declining to take cognizance irrespective of the opinion of the police. On the other hand, if the Magistrate agree with the report, he will have full jurisdiction to take cognizance of the offence under Section 190 (1) (b) of the Code. ( 6 ) IN the case at hand, the learned Magistrate has come so and he has taken cognizance of the offences as alleged, on the basis of the charge-sheet filed by the police. A Magistrate after taking cognizance of an offence, if he is of the opinion that there is sufficient ground for proceeding, he may issue summons in a summons case or a warrant in case of a warrant case if he thinks fit. A very wide discretion is vested with the Magistrate in the matter of issuing process, which is required to be used with care and caution. The Magistrate has to decide whether a prima facie case has been made out and then will proceed further in accordance with Section 203 of the Code. Law is also well settled that once the Magistrate has exercised its discretion and issues process, the High Court would not liberally interfere with such order or substitute its own discretion for that of the Magistrate. Law is also well settled that once the Magistrate has exercised its discretion and issues process, the High Court would not liberally interfere with such order or substitute its own discretion for that of the Magistrate. ( 7 ) THE contention of the learned counsel for the petitioners, that since the accused/- etitioners 2 to 6 are alleged to have committed offences punishable under Sections 294/506/34 of the Indian Penal Code as alleged, except the offence under Section 376, IPC, they could not have been issued with the process for being tried together, cannot be accepted at this stage Chapter XVII of the Code deals with the charge and the form thereof. Section 220 of the Code contemplates that if in one series of works so connected together as to form the same transaction, he may be charged with and tried at one trial for every such offence. Under sub-section (4), thereof, if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by any one, or more, of such acts. To ascertain whether a series of acts are parts of same transaction, it is essential to see whether they are linked together to present in a continuous act. However, whether the persons are charged for the offence or series of offences are to be considered at the stage of framing of the charge. At this stage, the cognizance has been taken of the offences and the accused/- etitioners have been asked to face trial This is not the stage to find out as to which of the accused person is to be charged under any of the offences, for which cognizance, has been taken The trial Court, the Magistrate or the Court of Session, as the case may be, while considering framing of charge, shall take care of the situation, on the basis of available materials on record. ( 8 ) THE contention of the learned counsel that no case of rape is made out against the petitioner No. 1 and as such, he also cannot be proceeded against for commission of an offence under Section 376, IPC, is thoroughly misconceived both on facts and law. ( 8 ) THE contention of the learned counsel that no case of rape is made out against the petitioner No. 1 and as such, he also cannot be proceeded against for commission of an offence under Section 376, IPC, is thoroughly misconceived both on facts and law. A perusal of the FIR and the statement of witnesses like Antaryami Das corroborating the statement of victim girl, makes out a clear case of rape triable under Section 376, IPC and as such the contention has to be rejected outright. ( 9 ) THE prosecutrix Latika Ojha in her statement under Section 161, Cr. P. C. has clearly stated that on 10-4-1995 at about 6-30 p. m. when she had been to the field near the pond to attend the call of nature and after finishing, when she was going to the pond, accused/- etitioner No 1, Bijaya Das of Bilasuni Mathasahi came from behind, embarrassed her, squeezed her breasts, made her flat on the ground, after making her naked and tearing her blouse, committed sexual inter course. The accused gagged her mouth by her saree, but however, she was able to throw her voice. Hearing the shout, Adhikari Antaryami Das reached at the spot when she was being raped and seeing him, Bijaya Das, the accused left her and ran away. Her mother-in-law also reached the spot and she narrated the incident to her. However, she stated that she did not disclose, immediately the incident to her husband and father-in-law lest they may abandon herrr. However, after hearing the incident from mother-in-law her father-in-law went to the house of Bijaya was to ask him about the incident. Then the father of Bijaya Das, Baishnab Das, Pravakar Das, Dayanidhi Das and Ajaya Das came to her house with deadly weapons like Thenga, Bhujali etc. and shouted at her father-in-law and threatened him. The prosecutrix and her family members remained inside. This incident occurred at about 9-30 p. m. in the night. Bijaya Das also had come with a Katari to near her house. Threatening was also given that if they come out, they will be killed and the house will be burnt. At 7. 00 p. m. , however, it is stated that Bijaya Das and his elder mother Dukhi came to her house and scolded them, and thereafter went to the house of Antaryami Das and scolded him. Threatening was also given that if they come out, they will be killed and the house will be burnt. At 7. 00 p. m. , however, it is stated that Bijaya Das and his elder mother Dukhi came to her house and scolded them, and thereafter went to the house of Antaryami Das and scolded him. She has candidly stated that on 11-4-1995 she lodged the FIR, but out of shame did not disclose about the sexual act. Antaryami Das who is said to have reached the place of occurrence on hearing the shout of the prosecutrix has corroborated her statement and stated that when he was working in his sugarcane field, hearing the shout she came to the spot and saw near the bush adjacent to the pond, the accused Bijaya Kumar Das was raping Latika, the prosecutrix. He has stated further that he caught hold of the accused and gave him a thrashing, but he escaped and ran away. He escorted Latika to her house. Sometimes thereafter accused Bijaya Das, Baishnab Das, Biswambhar Das, Dayanidhi Das and Ajaya Das came to the house of Antaryami and threatened him with dire consequence, if he becomes a witness in the case. The statement of the informant with regard to the events after commission of the rape has been corroborated and deposed to by other witnesses. In such view of the matter, the contention of the learned counsel that there was no material before the learned Magistrate to take cognizance of the offence alleged is thoroughly misconceived and has to be rejected out-right. ( 10 ) IN such view of the matter, I find no merit in the present application under section 482, Cr. P. C. to quash the impugned order of cognizance, and accordingly it is rejected. The LCR be transmitted forthwith for expeditious disposal of the matter. Application rejected.