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2004 DIGILAW 255 (ORI)

SRI SAROJ KUMAR PATTANAIK v. STATE OF ORISSA

2004-06-17

P.K.TRIPATHY

body2004
JUDGMENT : P.K. Tripathy, J. - At present, Petitioner is one of the accused persons in G.R. Case No. 91 of 1985 of the Court of S.D.J.M., Dhenkanal. As per the prosecution, the case is booked for the offence u/s 457/380/411, Indian Penal Code Opp. Party No. 2 Binoy Nayak is the co-accused of the Petitioner. In this application u/s 482, Code of Criminal Procedure, Petitioner has prayed to quash the order of cognizance passed on 4.2.1992 and the subsequent order of issue of process passed on 8.2.1999. 2. This case, has come up before this Court for more than once so also before the Court of Sessions Judge, Dhenkanal on different occasions and all such litigations centre round on the factum of investigation, submission of final form, cognizance and issue of process. In the judgment delivered by this Court on 1.5.1998 in Criminal Misc. Case No. 2363 of 1992, and Criminal Misc. Case No. 341 of 1993, details of the facts and circumstances have been noted including the development of the proceeding from time to time and stage to stage. For the purpose of considering the question of issue of process, learned S.D.J.M. has also taken note of such fact situation in his order passed on 8.2.1999 and 6.3.1999 while considering the application of the Petitioner to recall the order of cognizance or else to recall the process issued against him in view of order passed by him on 3.8.1992. Therefore, repetitions of facts and circumstances is not necessary to deal with and dispose of the present application u/s 482, Code of Criminal Procedure 3. Contention of the Petitioner is two fold. His First contention is that when the order of cognizance passed on 4.2.1992 was recalled by learned S.D.J.M. on 3.8.1992 on the basis of the decision of learned Sessions Judge, Dhenkanal passed on 15.4.1992 in Criminal Revision No. 107 of 1986, therefore, he could not have issued process as per the order passed by him on 26.10.1998. His second contention is that the fact scenario available on record indicates that FIR was lodged without naming the culprit for the allegation of theft of ornaments and cash. That resulted in submission of final report. Subsequently, on the effort of the informant order was passed for reinvestigation and on the basis of that reinvestigation servant of the informant i.e. Opp. That resulted in submission of final report. Subsequently, on the effort of the informant order was passed for reinvestigation and on the basis of that reinvestigation servant of the informant i.e. Opp. Party No. 2 was involved as an accused for committing the theft and through that Binoy (opposite party No. 2) a confession was brought on record to implicate the Petitioner as the instigater and abater of the said offence. Petitioner further argues that it is the undisputed fact that Petitioner is not only the elder brother of the informant but also there is land dispute and enmity between the parties. Petitioner also stated that he works as a Class-I Gazetted Officer and involving him and his wife in the case is only with a view to humiliate them. He further argues that when there is no evidence worth the name to find his involvement with the alleged offence, therefore, issue of process against him is illegal. 4. Learned Standing Counsel on the other hand argued that keeping in view the different facts as noted in the different orders passed by this Court and the learned Sessions Judge, so also keeping in view the order which learned S.D.J.M. has passed, on 6.3.1999, the present step taken by the Petitioner is pre-matured in as much as at the stage of consideration of charge, as stated by the S.D.J.M. such question shall be considered. He further argued that when the remedy is available to the Petitioner and he has already appeared and gone on bail from the Court below, therefore, at this stage, it is premature to exercise the inherent power. 5. On consideration of the aforesaid rival contention, this Court finds that order which learned S.D.J.M. passed on 3.8.1992 was to close the case on the basis of the order passed by learned Sessions Judge in the above noted criminal revision. Therefore, when that criminal revision was later on re-heard and disposed of without finding anything against the order of cognizance passed on 4.2.1992, therefore, the order of cognizance of the offence and the order for issue of process remained operative. To that extent, learned S.D.J.M. has gone right in his later order passed for issue of process as per order dated 26.10.1998. To that extent, learned S.D.J.M. has gone right in his later order passed for issue of process as per order dated 26.10.1998. Admittedly, Petitioner has already entered appearance in the Court of S.D.J.M. and he is on bail as per the directions passed by this Court in an application u/s 438, Code of Criminal Procedure Therefore, he shall not suffer any prejudice for participating in the criminal proceeding relating to consideration of his claim for discharge. When that remedy is available to the Petitioner from the Court of S.D.J.M. without availing the same, pre-maturedly, he moved the application which was rejected by learned S.D.J.M. in his orders passed on 8.2.1999, read with the order passed on 6.3.1999. In the concluding paragraph of the order passed on 6.3.1999, learned S.D.J.M. has recorded that: .... The question whether there is ground to presume that accused committed the offence is to be considered at the time of framing charge. So, the present application brought by the accused is not maintainable and is therefore, rejected. 6. Petitioner should bear in mind that at the stage of taking cognizance, learned S.D.J.M. has taken note of such facts from record, which were brought to his notice by the prosecution. The difference descripant conduct of the investigating agency, acceptability of the confession of the opposite party No. 2 and lack of bonafide in that respect from the side of the informant as well as the investigating agency, are the contentions, which are yet to be considered by learned S.D.J.M. at the stage of consideration of charge. Contention of the Petitioner in all such respect can be put forward before the S.D.J.M. from the available material in the case record for due consideration. In that event, it is expected of the S.D.J.M. to consider the same in accordance with law and not being influenced by any previous order passed by him or his predecessor or by the superior Courts touching on the question of existence of a prima facie case so as to frame or not to frame charge against the Petitioner. In the event he shall feel aggrieved by non-consideration or wrong consideration of his contention by the trial Court then he may approach the appropriate superior forum for proper legal remedy. In the event he shall feel aggrieved by non-consideration or wrong consideration of his contention by the trial Court then he may approach the appropriate superior forum for proper legal remedy. Under such circumstance, this Court does not feel to go into all such questions at this stage or to quash the Criminal Proceeding when learned S.D.J.M. being the competent authority has yet to consider such questions in exercise of jurisdiction vested in him. Accordingly, the application u/s 482, Code of Criminal Procedure is dismissed as pre-matured. Application accordingly dismissed. Final Result : Dismissed