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2004 DIGILAW 373 (ORI)

Sudhansu Parida v. State of Orissa

2004-08-20

R.N.BISWAL

body2004
JUDGMENT R. N. BISWAL, J. — The petitioner has filed this case under Section 482 Cr.P.C. with a payer to quash G.R. Case No. 229 of the 2003 arising out of I.C.C. No. 51 of 2003 pending in the Court of S.D.J.M., Udala. 2. As per the petition, on 23.7.2003 one Phulamani Behera filed I.C.C. No. 51 of 2003 (Annexure-1) before the learned S.D.J.M., Udala making some false and frivolous allegations against the petitioner. Without examining the complainant or her witnesses, on 25.11.2003 the learned S.D.J.M. simply forwarded the complaint petition to the Officer-in-Charge of Khunta Police Station through the C.S.I., Udala under Section 156 (3) Cr.P.C. for registration and investigation of the case with a direction to submit the F.I.R. by 4.11.2003. Pursuant to the said direction, the O.I.C., Udala Police Station treating the complaint petition as F.I.R., registered P.S. Case No. 76 of 2003 under Sections 341/323/294/354/506 (2) IPC read with Section 3 of S.C. and S.T. (P.A.) Act and sent it to the Court which was registered as G.R. Case No. 229 of the 2003 (Annexure-2). It appears from Annexure-2 that since the alleged offences includes offence under Section 3 of S.C. and S.T. (P.A.) Act, which can not be investigated by any police officer below the rank of D.S.P., the Officer-in-Charge, Khunta, Police Station did not take up investigation. The present case has been filed to quash the G.R. Case No. 229 of 2003 aris¬ing out of I.C.C. No. 51 of 2003 as mentioned earlier. 3. The learned counsel appearing for the petitioner submit¬ted that the offence under Section 3 of S.C. and S.T. (P.A.) Act being triable by the Special Court which is essentially a Court of Session, the learned S.D.J.M., himself ought to have examined the witnesses produced by the complainant instead of sending the complaint petition to the O.I.C. of Khunta Police Station for investigation as required under Section 202, Cr.P.C. Since he violated the mandatory provision of law, G. R. Case No. 229 of 2003 arising out of I.C.C. No. 51 of 2003 of the Court of S.D.J.M., Udala ought to be quashed. He cited the decision in Moly and another v. State of Kerala, reported in A.I.R. 2004 (S.C) 1890 where the apex Court held that a Special Court under the S.C. and S.T. (P.A.) Act is essentially a Court of Session. He cited the decision in Moly and another v. State of Kerala, reported in A.I.R. 2004 (S.C) 1890 where the apex Court held that a Special Court under the S.C. and S.T. (P.A.) Act is essentially a Court of Session. In view of the decision of the apex Court, it is held that special Court under the S.C. and S.T. (P.A.) Act is essentially a Court of Session. 4. Proviso (a) to Sub-section (1) of Section 202, Cr.P.C. postulates that in a complaint case exclusively triable by the Court of Session, the Magistrate can not direct a Police Officer to investigate into it, for the purpose of deciding whether or not there is sufficient ground for proceeding. Again proviso to Sub-section (2) of Section 202 Cr.P.C. ordains that if it appears to the Magistrate that the offence complained of is exclusively triable by the Court of Session, he shall ask the complainant to produce all his witnesses and examine them. 5. In the decisions in Rosy and another v. State of Kerala and others reported in (2000) 18 O.C.R. (SC) 490 and Dibakar Singh and another v. Birakishore Jarika 2004 (II) O.L.R. 67 as cited on behalf of the petitioner, the apex Court and this Court respectively have held that in a complaint case exclusively tri¬able by the Court of Session the Magistrate should examine all the witnesses of the complainant before issuing process against the accused. In the decision Rosy and another (supra), the apex Court further held that in such a case the Magistrate is required to conduct the enquiry himself and cannot direct investigation by police. 6. In the case at hand, the S.D.J.M., Udala directed the O.I.C., Khunta Police Station under Section 156 (3), Cr.P.C. to investigate into the case. As found from the petition under Section 482 Cr.P.C., the S.D.J.M. gave such direction without application of mind, i.e., without taking cognizance. Direction given to the police under Section 156 (3), Cr.P.C. for investiga¬tion is quite different from the direction given under Section 202 (1), Cr.P.C. The first is at pre-cognizance stage while the second at post-cognizance stage. A Magistrate can order investi¬gation under Section 156 (3), Cr.P.C. at the pre-cognizance stage. He cannot pass such order after taking cognizance. So the decisions cited by the learned counsel for the petitioner are not applicable to the present case. A Magistrate can order investi¬gation under Section 156 (3), Cr.P.C. at the pre-cognizance stage. He cannot pass such order after taking cognizance. So the decisions cited by the learned counsel for the petitioner are not applicable to the present case. In the decision Devarapalli v. Laxminarayan, reported in A.I.R. 1976 S.C. 1672 it has been held that a Magistrate receiving complaint disclosing offence exclu¬sively triable by the Court of Session can direct investigation without taking cognizance. 7. Therefore, in view of the this decision and the discus¬sion as made above, I do not find any illegality or material irregularity in the order of the learned S.D.J.M., Udala in directing the Officer-in-Charge, Khunta Police Station to take up investigation, warranting exercise of extra-ordinary power con¬ferred under Section 482 Cr.P.C. Accordingly the CRLMC is dismissed being devoid of merit. CRLMC dismissed.