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2003 DIGILAW 94 (ORI)

Rabi Naik v. Baula Dei

2003-01-31

P.K.TRIPATHY

body2003
ORDER 31.1.2003 — Heard. 2. In this application u/s 482, Cr. P.C. petitioners have prayed to quash Annexure-3 i.e. order dated 1.2.2002 passed by learned J.M.F.C., Daspalla in I.C.C. No. 74 of 2001. 3. It is not disputed at the Bar that relating to self-same occurrence FIR was lodged by the complainant as a result of which G.R. Case No. 139 of 2001 has been registered in the Court of J.M.F.C., Daspalla and the investigation by Gania Police is still continuing. When the matter stood thus the aforesaid complaint was filed by the informant and without complying with the provi¬sion in Section 210, Cr. P.C., learned J.M.F.C. conducted an inquiry and passed the impugned order of cognizance. 4. Two contentions are raised by the petitioners as against the said order of issue of process. (i) That the accused-petitioners Rabi Naik, Kailash Naik, Patar Naik and Sumati Dei are the members of Scheduled Caste community and the complainant being a member belonging to the Scheduled Caste, offence u/s 3 of Scheduled Caste and Scheduled Tribe (PA) Act, 1989 (in short the ‘Act’) cannot be made out against the said four accused persons ; and (ii) While the G.R. Case is under investigation, learned J.M.F.C. without resorting to Sec. 210, Cr.P.C. should not have proceeded with the inquiry. In other words, he contends that for the self-same occurrence two parallel proceed¬ings cannot be continued. 5. It is fairly stated at the Bar that some more persons have been added as accused in the complaint. 6. So far as the first contention of the petitioner is con¬cerned, that may be appropriately considered at the stage of issue of process by learned J.M.F.C. inasmuch as if there shall be any evidence or material available on record that the said four accused persons are members of Scheduled Caste community, then notwithstanding taking cognizance of the offence u/s 3 of the Act, the Court below may not issue process to them for the offence u/s 3 of the Act. In that context, it may be noted that a Court takes cognizance of the offence and not of the offenders. 7. So far as non-compliance of Section 210, Cr. P.C. is con¬cerned, it is seen that learned J.M.F.C. should have called for a report relating to investigation in the above noted G.R. Case and without that he should not have proceeded with the complaint. 7. So far as non-compliance of Section 210, Cr. P.C. is con¬cerned, it is seen that learned J.M.F.C. should have called for a report relating to investigation in the above noted G.R. Case and without that he should not have proceeded with the complaint. Be that as it may, the order of issue of process in the complaint be stayed and the investigating officer or the O.I.C., Gania Police Station be directed to complete the investigation of the other case and to submit the Final Form. If the Final Form shall result in non-submission of a charge-sheet as against all or any of the accused persons in the complaint, thereafter learned J.M.F.C. treating the aforesaid complaint as the protest petition or further complaint shall proceed with the criminal proceeding in accordance with law. Since the occurrence which is complained of is one, therefore, even if the Court below shall find it neces¬sary to continue with both the proceedings, then he should club both the proceedings for trial and disposal in accordance with law. At any rate, it is observed that if the O.I.C., Gania P.S. shall not submit his Final Form within a period of two months from the date of direction which shall be issued by learned J.M.F.C., then appropriate order shall be passed by that Court without further awaiting for the report and learned J.M.F.C. shall then proceed with the complaint case in accordance with law. 8. The application u/s 482, Cr. P.C. stands disposed of accord¬ingly. Application disposed of.