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2004 DIGILAW 213 (ORI)

Laxmidhar Das v. Nakul Das

2004-04-23

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — Both the applications under Section 482 of the Code of Criminal Procedure have been filed challenging the order dated 23.2.2001 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. No. 65 of 2001 directing the I.I.C. Lingaraj Police Station to register a case and investigate into the allegations contained in the complaint. Criminal Misc.Case No. 4506 of 2001 has been filed by accused Laxmidhar Das, whereas Criminal Misc. Case No. 3559 of 2001 has been filed by four other accused per¬sons. 2. Case of the complainant is that she is the mother of one Saraswati Behera (since deceased) who was given marriage to accused Laxmidhar Das on 6.7.1999 as per Hindu rites. At the time of marriage presentations were given to the tune of rupees three lakhs. The deceased was serving in the office of the Chief En¬gineer, Design and Planning at Secha Sadan and accused Laxmidhar Das was serving as Textile Engineer in the Century Textile Mills at Warli, Mumbai. On 12.8.2000 the deceased went to the place of living of accused Laxmidhar along with her sister who stayed there for two/three days. During her stay she noticed accused Laxmidhar Das had relationship with another woman namely Rakhi. There are several allegations have been made in the complaint with regard to role played by Laxmidhar and said Rakhi in taking away the ornaments belonging to the deceased. Two months after, the deceased came back to Bhubaneswar and narrated her sufferings before the complainant and by that time she was pregnant. Though accused Laxmidhar was requested to come for delivery at least 15 days prior to the expected date, he came on 3.2.2001. When the deceased had labour pain she wanted to be removed to hospital but accused Laxmidhar demanded rupees eight thousand which was also paid. On the very same day at about 12 O’ clock in the mid-night sister of the deceased saw accused Laxmidhar giving a glass of milk and after taking said milk the deceased felt chocked and became unconscious. Finding her health to be serious blood trans¬fusion was advised and she went on sinking and was saying in a feeble voice that she was given poison in the milk and later on she died. Finding her health to be serious blood trans¬fusion was advised and she went on sinking and was saying in a feeble voice that she was given poison in the milk and later on she died. On these allegations apart from other allegations made in the complaint, the complaint was filed for commission of offences under Sections 302/498-A and 120-B of the Penal Code read with Section 4 of the Dowry Prohibition Act. After receipt of the complaint learned S.D.J.M. in the impugned order directed the I.I.C. Lingaraj Police Station to register a case and investigate into the allegations in exercise of powers under Section 156(3) of the Cr.P.C. 3. Shri Sen, learned counsel appearing in both the cases submitted that in a complaint case where the offence alleged is triable by a Court of Session the learned Magistrate has no jurisdiction to exercise power under Section 156(3) of the Cr.P.C. and direct the police to register a case and investigate into the allegations made in the complaint. In support of his contention learned counsel relied upon a decision of the Apex Court in the case of Rosy and another -v- State of Kerala and others, reported in (2000) 18 OCR (SC) 490. None appeared for the opposite parties at the time of hearing of the applications. 4. The only question of law raised before this Court is that whether in a complaint where offences are triable by Court of Session, learned Magistrate has to make inquiry himself or can exercise power under Section 156(3) of Cr.P.C. and direct police officer to register a case and investigate into the allegations. 4. The only question of law raised before this Court is that whether in a complaint where offences are triable by Court of Session, learned Magistrate has to make inquiry himself or can exercise power under Section 156(3) of Cr.P.C. and direct police officer to register a case and investigate into the allegations. In order to appreciate the contention of the learned counsel for the petitioners it is necessary to refer to Section 202 Cr.P.C. which is quoted below : “(1)Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, post¬pone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made - (a) where it appears to the Magistrate that the offence com¬plained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath; Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that inves¬tigation all the powers conferred by this Court on an officer in charge of a police station except the power to arrest without warrant.” From the section itself it is very clear that on receipt of complaint of an offence a Magistrate authorised to take cog¬nizance may postpone issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer. Proviso to such section further make it clear that when the offence complained of is triable exclusively by Court of Session, he shall call upon the complai¬nant to produce all his witnesses and examine them on oath. The section is very clear to the effect that on receipt of complaint, when the Magistrate is satisfied that the offence is triable exclusively by Court of Session, he shall call upon the complai¬nant to produce all his witnesses and examine them on oath and therefore the Magistrate on receipt of such complaint has to make inquiry himself and cannot direct investigation to be made by a police officer. The Apex Court in the decision referred to above while dealing with such a question observed as follows : “It is only if the Magistrate decides to hold the inquiry the proviso to Sub-section (2) of Section 202 would come into operation. If the offence is triable exclusively by the Court of Session, the Magistrate himself has to hold the inquiry and no direction for investigation by police shall then be made. Inquiry can be held for recording evidence on oath and if he thinks fit, Sub-section (2) of Section 202 gives discretion to the Magistrate to record evidence of witnesses on oath. To this discretionary power, the proviso carves out an exception. It provides that for the offence triable exclusively by the Court of Sessions, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath.” So far as the present case is concerned, there is no dispute that offences alleged are triable by Court of Session and there¬fore the learned Magistrate had no jurisdiction to direct investigation by police officer in exercise of powers under Sec¬tion 156(3) of Cr.P.C. and he has to make inquiry himself as provided under Section 202 Cr.P.C. 5. I, therefore, quash the order dated 23.2.2001 and direct the learned S.D.J.M., Bhubaneswar to hold inquiry under Section 202 Cr.P.C. by directing the complainant to produce all his witnesses for examination in terms of the said provision and pass necessary orders in accordance with law. Both the CRMCs are allowed to the above extent. CRMCs allowed to the extent indicated.