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2003 DIGILAW 158 (ORI)

BIDYADHAR BEHERA v. STATE

2003-02-21

L.MOHAPATRA

body2003
JUDGMENT : L. Mohapatra, J. - Both the applications u/s 482, Code of Criminal Procedure arise out of one incident. In Criminal Misc. Case No. 1143 of 2002 accused Pravakar Behera and his son Sarbeswar Behera pray for quashing the F.I.R. as well as the order taking cognizance whereas in Criminal Misc. Case No. 1122 of 2002 the other two sons of accused Pravakar Behera are the Petitioners praying for the same relief. 2. From the record it appears that one Kedarnath Subudhi lodged an F.I.R. in the Air Field Police Station on 2.3.2002 alleging therein that on the said date at about 7 in the morning when he, his elder brother and his son were taking tea in their house, accused Kailash Subudhi came out from the house of accused Pravakar with a lathi, entered into the house of the informant, abused him in filthy language and dealt two blows on the head of the elder brother of the informant. When the elder brother of the informant fell down, he again dealt four blows as a result of which the injured lost sense. At that point of time when the wife of the injured rushed to save the injured, it is alleged that accused Kailash also assaulted her and outraged her modesty. At the end of the F.I.R. it is also stated that the three sons of Prabhakar who are Petitioners before this Court also threw stones at the informant and injured him. On the basis of the F.I.R. Air Field P.S. Case No. 44 of 2002 was registered for commission of offences under Sections 307/323/336/354/506/34 of the Penal Code which subsequently turned to offences under Sections 302/323/336/354/506/ 34 of the Penal Code. On completion of investigation, charge-sheet was submitted against the Petitioners in both the cases as well as other two co-accused persons and the learned S.D.J.M. Bhubaneswar by order dated 29.6.2002 took cognizance for commission of offences under Sections 302/323/336/354/506/34 of the Penal Code. 3. On completion of investigation, charge-sheet was submitted against the Petitioners in both the cases as well as other two co-accused persons and the learned S.D.J.M. Bhubaneswar by order dated 29.6.2002 took cognizance for commission of offences under Sections 302/323/336/354/506/34 of the Penal Code. 3. The Learned Counsel appearing for the Petitioners challenged the order taking cognizance on the ground that in the F.I.R. initially No. allegation had been made against the sons of accused Pravakar who are Petitioners before this Court and so far as accused Pravakar is concerned, there is No. allegation of any kind of overt act and it is alleged in the F.I.R. that accused Kailash Subudhi came out from the house of Pravakar with a lathi. It is also contended by the Learned Counsel for the Petitioners that subsequently at the bottom of the F.I.R. three lines have been inserted making allegation against the three sons of accused Pravakar stating that they were also throwing stones at the informant and the injured. Referring to the statement of one Trilochan Behera recorded u/s 161, Code of Criminal Procedure the Learned Counsel further contended that the allegation so far as the present Petitioners are concerned is that they were throwing stones to the backyard of Kedarnath Subudhi and were also abusing him in filthy language. On the basis of such materials, the Learned Counsel submitted that since No. prima facie case is made out against the Petitioners with regard to their involvement in the commission of offences, the order taking cognizance should be quashed. Reliance is placed by the Learned Counsel on several decisions of this Court as well as the Apex Court in support of his contention. The first decision referred to by the Learned Counsel is the case of Ghasiram Gupta ' Mahawar v. Dindayal Gupta reported( in 85 (1998) C.L.T. 61. In the said decision it appears that an order taking cognizance in a complaint case was challenged before this Court, In the concluding paragraph this Court held that at the time of taking cognizance the Magistrate has to satisfy himself on a perusal of the papers that a prima facie case is made out before taking cognizance of the offence and the learned Magistrate ought to have read the complaint petition in its entirety and should have come to the satisfaction that a prima facie case is made out. The second decision relied upon by the Learned Counsel is the case of Biraja Panda alias Butia v. State of Orissa reported in 81 (1996) C.L.T. 417. Referring to the said decision it is contended that, when it appears clear that allegations as set out in the complaint or in the charge-sheet do not in law constitute any offence or in the opinion of the Court chances of ultimate conviction are bleak, it would be well within its jurisdiction to quash the proceeding by invoking the inherent power, the reason being that continuance of the criminal proceeding in such circumstances amounts to an abuse of the process of the Court. Reliance is also placed in the case of Saroj Kumar Sahoo Vs. State of Orissa and Another, where principles and guidelines regarding exercise of jurisdiction u/s 482. Code of Criminal Procedure have been explained. Reference is also made to a decision of the Apex Court in the case of State of Karnataka v. M. Devendrappa and Anr. reported in AIR 2002 SCW 286 and it is contended that in exercise of power u/s 482, Code of Criminal Procedure this Court is competent to quash the proceeding when it is satisfied that there was No. definite evidence and involvement of the accused persons directly or where there is No. evidence to infer common intention. 4. There is No. dispute about the proposition of law that this Court can exercise it power u/s 482, Code of Criminal Procedure to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, it is again not in dispute that this power should be exercised sparingly and that too in the rarest of rare cases. On perusal of the records, if the Court is satisfied that accepting the allegations made to be correct, No. offence is made, it will be open for the Court to quash the proceeding. But in case where some materials are available and involvement of the accused is not free from doubt, the Court may be constrained to exercise the inherent power for the purpose of quashing the proceeding. 5. But in case where some materials are available and involvement of the accused is not free from doubt, the Court may be constrained to exercise the inherent power for the purpose of quashing the proceeding. 5. Now coming to the allegations made in the F.I.R. as well as the statements of witnesses recorded during investigation, it appears that in the F.I.R. below the signature of the informant some allegations have again been made against the present Petitioners which are said to have been inserted later on. I am unable to accept such contention since the first part of the F.I.R. contains signature of the informant and just below the signature of the informant three lines have been added making allegations against the present Petitioners whereafter the endorsement has been made by the I.I.C. of the Police Station. This appears to be a continuation and I am, therefore, unable to accept the contention of the Learned Counsel for the Petitioner at this moment that the three lines appearing below the signature of the informant indicating involvement of the present Petitioners in commission of the offence were inserted later on. This allegation of the Petitioners can only be decided during trial. In the statements of witnesses recorded u/s 161 Code of Criminal Procedure I find from the case diary that allegations have been made against the Petitioners stating that they were throwing stones to the backyard of Kedarnath Subudhi and were also instigating to kill. In view of such materials available in the statement of witnesses examined during investigation, it cannot be said that No. prima facie case is made out against the Petitioners. The Learned Counsel appearing for the Petitioners being confronted with the statements of the witnesses examined during investigation submitted that it is not open for the Court to look to those statements and the Court has only to look into the F.I.R. and see as to whether any prima facie case is made out or not. In support of such contention reliance is placed on the decision of the Apex Court in the case of M.L. Bhatt v. M.K. Pandita and Ors. reported in 2003 (1) O.L.R. (SC) 75. From the said decision it appears that on the basis of an allegation made in the F.I.R. investigation was taken up. In support of such contention reliance is placed on the decision of the Apex Court in the case of M.L. Bhatt v. M.K. Pandita and Ors. reported in 2003 (1) O.L.R. (SC) 75. From the said decision it appears that on the basis of an allegation made in the F.I.R. investigation was taken up. The F.I.R. was lodged alleging commission of offences under Sections 420/120-B of the Penal Code and when the matter was under investigation the accused persons invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court on a detailed examination of the entire materials including the statements recorded in course of investigation quashed the F.I.R. on a conclusion that the allegations in the F.I.R. do not constitute an offence. The Apex Court observed that the High Court exceeded its jurisdiction and the parameters and was not justified in quashing the F.I.R. The Apex Court observed that the High Court would be entitled only to examine the allegation made in the F.I.R. and would not be entitled to appreciate by way of sifting the materials collected in course of investigation including the statements recorded u/s 161 of the Code of Criminal Procedure From the observations made in the judgment it appears that some allegations were there in the F.I.R. against the accused persons and the High Court while exercising the jurisdiction under Article 226 of the Constitution not only considered the allegations made in the F.I.R. but also considered the statements recorded u/s 161. Code of Criminal Procedure and by appreciating the materials available in the case diary came to a conclusion that No. prima facie case is made out. Though this Court is not entitled to interpret the judgment of the Apex Court in any way other than the way it has been expressed it appears that since the allegations were there in the F.I.R. against the accused persons the Apex Court was of the view that the High Court was not entitled to appreciate the evidence by way of sifting the materials collected during the course of investigation. I therefore do not agree with the submission of the Learned Counsel for the Petitioners that in the said decision the Apex Court decided that it will be open for the Court to only look into the F.I.R. for the purpose offending whether a prima facie case is made out or not and No. other document. On the other hand, the Apex Court has observed that the High Court will not be entitled to appreciate the evidence by way of sifting the materials collected in course of investigation including the statements of witnesses recorded u/s 161. Code of Criminal Procedure Since I find not only prima facie materials in the F.I.R. but also in the statements recorded u/s 161, Code of Criminal Procedure, I have No. reason to quash the order taking cognizance. 6. In the case of M.L. Bhatt v. M.K. Pandita (supara) by the time the case was taken up by the Apex Court the challan had already been filed and the Apex Court held that the accused has always the remedy at the time of framing of charge to pray for discharge, if materials on the basis of which the challan has been filed can be said to be insufficient to frame charge. Therefore, in the present case also since charge-sheet has already beep filed and cognizance has been taken, it will be open for the Petitioners to pray for being discharged, if materials are insufficient to frame charge. 7. In view of the discussions made above, I do not find any material in both the petitions and accordingly the same stand dismissed. Final Result : Dismissed