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2003 DIGILAW 589 (ORI)

Prahallad Mohanty v. State of Orissa

2003-09-18

B.P.DAS

body2003
JUDGMENT B. P. DAS, J. — This Criminal Revision under Section 401 of the Criminal Procedure Code (hereinafter referred to as the ‘Code’) has been filed with a prayer to set aside the order dated 18.4.2001 passed by the S.D.J.M., Jagatsinghpur, in Criminal Misc.Case No.79 of 2000, arising out of G.R.Case No.151 of 2000 rejecting the application of the petitioner filed under Section 457 of the Code for passing appropriate order for production and disposal of the properties seized with the aforesaid G.R. Case after obtaining show cause from the opposite party-Investigating Officer. 2. The brief facts leading to this revision application, as it tends to reveal, are that a first information report was lodged by one Kalyanilata Swain, the daughter of the present petitioner-Prahallad Mohanty alleging demand of dowry and torture against her husband-Anam Charan Swain and in-laws. The aforesaid F.I.R. was registered as Jagatsinghpur P.S. Case No.46 of 2000 corresponding to G.R. Case No.151 of 2000 under Section 498/(A)/34 I.P.C. and Section 4 of the Dowry Prohibition Act and the present opposite party No.2, who was the A.S.I. of Police of Krushnananapur Out-post under Tirtol P.S., was directed to inves¬tigate into the case. During the course of investigation, it is alleged that opposite party No.2 created a false seizure list and a Zimanama by taking signatures from the petitioner and his daughter. The petitioner filed an application before the S.D.J.M., Jagatsinghpur, under Section 457 of the Code, which was registered as Crl.Misc.Case No.79 of 2000, detailing the circum¬stances under which the petitioner on 4.3.2000 accompanied the opposite party No.2 in the police jeep to village Praharajpur and reached at the in-laws house of his daughter at about 9.30 A.M. and returned back to the police station as the accused persons were not found there. On arrival at the police station, opposite party No.2 told the petitioner to sign on four papers in token of proof that the petitioner had accompanied the I.O. to the spot on 4.3.2000 and accordingly the petitioner signed the papers after the P.S. case number was mentioned at the top. Opp.party No.2 then told the petitioner that his personal presence was not re¬quired any manner. Opp.party No.2 then told the petitioner that his personal presence was not re¬quired any manner. The petitioner thereafter left for Rourkela and later on he came to know that his son-in-law was arrested and the matter between his son-in-law and his daughter has been amicably settled in the Court of the Addl.District Judge, Jagat¬singhpur, on the basis of a joint compromise petition. So far as accused Pabitra, the elder brother of accused-Anama Ch. Swain is concerned, negotiation was still going on for an amicable settle¬ment, but ultimately in the last week of May 2000, Pabitra de¬clared that they would not take back the petitioner’s daughter and wanted to proceed with the litigation in Court. It was further alleged that opposite party No.2 manufactured a false seizure list showing the date and the time of seizure as 4.3.2000 at 7 A.M., obtaining the signature of the son-in-law of the petitioner as occupant, who was available to the I.O. only on 7.3.2000, showing seizure of properties, which were not mentioned in F.I.R. nor its specifications were given and without making any production before Court. It was further alleged that a false zimanama had been manufactured by opposite party No.2 out of the papers given to him at his instance and one Prasanna Swain, a cousin of the accused had been selected as a Zima witness, although there was no delivery of alleged zima articles. The sum and substance of the allegations of the petitioner is that the seized properties were absolutely not seized by opposite party No.2 but false seizure list and Zimanama were prepared for which the petitioner in the petition filed under Section 457, Cr.P.C. before the S.D.J.M., Jagatsinghpur (Annexure-1) prayed for pro¬duction and disposal of properties. The S.D.J.M. by his order dated 18.4.2001 (Annexure-2) has rejected the said application on disbelieving the allegation of the present petitioner that he was not given the Zima of the properties but the said Zimanama was created by taking his signatures on a blank paper for which there was no occasion to direct opposite party No.2 to produce the seized materials in the Court. 3. 3. During the course of hearing of this revision applica¬tion and looking into the allegation made by the petitioner, this Court vide its order dated 25.4.2002 directed opposite party No.2 Siba Prasad Khillar,- A.S.I. of Police, to be present before this Court in person on 10th May, 2002 at 7.30 A.M. and to produce the entire case diary pertaining to G.R.Case No.151 of 2000. The aforesaid order was passed as opposite party No.2 instead of appearing in response to the notice received, sent a telegram to the Registry of the Court to the effect that he was busy in bomb blast case and prayed for adjournment. Ultimately the case diary was produced by opposite party No.2- A.S.I. on 16.5.2002 and looking into the said case diary, this Court found over writings at various places of the case diary so far as the timings are concerned. The timing 10 A.M'. given towards the end of the case diary dated 3.3.2000 was overwritten as 10 P.M'. Similarly, the timings given on the C.D. dated 4.3.2000 as 9.15' A.M. was over¬written as 9 A.M' and 10 A. M.'. has been overwritten as 8.15 A. M.' and 9 A.M.' has been overwritten as 8 A.M.' so also 9.30 A.M.' as 8.30 A.M.' respectively. The time 7 A.M.' put on the sei¬zure list dated 4.3.2000 has been overwritten as 9 A.M.' In the certified copy of the seizure list dated 4.3.2000 obtained from the Court of the S.D.J.M. and filed by the petitioner along with the petition (Annexure-3), the hour of seizure is indicated as 7 A.M.' whereas from the said seizure list contained in the case diary produced by the A.S.I. it clearly appeared that 7 A.M.' has been overwritten as 10 A.M.' 4. Considering the allegation of the petitioner that the manipulation was done by opp.party No.2-A.S.I., this Court by its order dated 16.5.2002 called for the L.C.R. in the concerned G.R. Case from the Court of the S.D.J.M., Jagatsinghpur. It was also found from the record that there were certain over writings in the case diary with the signatures of Sri Khillar appearing below such over writings. The A.S.I. of Police, who was present in Court, also admitted that the signature below the over writings made in the G.R. Case record belongs to him. It was also found from the record that there were certain over writings in the case diary with the signatures of Sri Khillar appearing below such over writings. The A.S.I. of Police, who was present in Court, also admitted that the signature below the over writings made in the G.R. Case record belongs to him. In order to know the truth, this Court by its order dated 18.6.2002 directed the District Judge, Cuttack to cause an enquiry into the matter and report to this Court whether the timings indicated in the seizure list has been overwritten/tampered with after issuance of the certified copy to the petitioner. In the said order, liberty was granted to the A.S.I. to remain present during the course of enquiry by the District Judge. Ultimately the A.S.I. appeared before this Court and he prayed to engage a counsel to defend him in the case as learned Addl.Government Advocate submitted that he had no instruction from opposite party No.2. 5. On 9.10.2002 Mr. Ashok Das, learned counsel, appeared for opposite party No.2 and prayed for some time to argue the matter. The matter was heard on 11.10.2003 and notes of argument was filed on behalf of A.S.I.-Khillar denying the allegations made against him. In the meantime, the report of the District Judge has been received. The District Judge has recorded the statements of opp.party No.2-the A.S.I. as well as of Kalyanilata Swain - the informant and during the enquiry afforded opportunity of hearing to opp.party No.2. The District Judge in his report has come to the following conclusions : “5. From the Register (R.28) maintained in the Court of Civil Judge (Jr.Divn)-cum-Judge-in-charge, Copying Section, Jagatsinghpur” it appears that under serial No.766 the informant-Kalyanilata Swain made an application to obtain certified copy of the seizure list in question and other documents on 28.10.2000 and obtained the certified copy on 4.11.2000. This is also indi¬cated in the certified copy of the seizure list. From the certi¬fied copy of the seizure list it appears that the seizure of the dowry articles was made at 7 A.M. on 4.3.2000. By the date of making application for certified copy the charge-sheet in the case was already received. It is the statement of Sri Khillar that the charge sheet was received in the Court of S.D.J.M., Jagatsinghpur on 25.9.2000 and he closed the investigation of the case on 9.8.2000. By the date of making application for certified copy the charge-sheet in the case was already received. It is the statement of Sri Khillar that the charge sheet was received in the Court of S.D.J.M., Jagatsinghpur on 25.9.2000 and he closed the investigation of the case on 9.8.2000. Thereafter, according to Sri Khillar, the case diary was not made available to him and after submission of the case diary he did not make any entry in the same. But in view of the fact that in the certified copy of the seizure list it has been indicated that the seizure was made at 7 A.M. on 4.3.2000 and in the original seizure list it has been corrected by over-writing from 7 A.M. to 9 A.M. without any dated initial, the only inference is that these corrections were made after submission of charge sheet and grant of certified copies in respect of the seizure list, even though Sri Khillar has stated that he did not make any entry in the Case Diary after submission of charge sheet”. “6. In view of the discrepancies found with regard to timing of seizure of dowry articles as found from the statement of Sri Khillar as indicated above, it can very well be said that the correction of the original seizure list in the Case diary was made after grant of certified copy.” xx xx xx xx “10. From the aforesaid facts and circumstances, from my enquiry it is revealed that the correction in the seizure list in question by over-writing was made by Sri Khillar after submission of charge sheet and grant of certified copy and accordingly the seizure list and case diary have been tampered with by Sri Khil¬lar.” After hearing learned counsel for the petitioner as well as opp.party No.2 on going through the report of the District Judge, I am of the view that the affidavits filed by opp.party No.2 are not acceptable and the same are accordingly rejected. Prima facie it appears that opp.party No.2 has committed the offences under Sections 177, 193, 466 and 468, I.P.C. for which he is liable to be proceeded against in terms of Section 195 of the Cr.P.C. Apart from that, the D.I.G., Central Range, Cuttack is also directed to take appropriate action against opp.party No.2 who is found to have tampered the Court record. As the Zimanama is prima facie a false one, the value of the property seized by opposite party No.2 shall be assessed by the S.D.J.M., Jagatsinghpur within a period of one month from the date of receipt of this order and the same shall be deposited by opposite party No.2 within a month thereafter. 6. The Criminal Revision is accordingly allowed. 7. The L.C.R. be sent back to the Court below along with a copy of the report of the District Judge, Cuttack in a sealed cover forthwith. Criminal Revision allowed.