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2005 DIGILAW 474 (ORI)

Gopal Ch. Pradhan v. State of Orissa

2005-08-10

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. — This CRLMC arises out of a petition filed under Section 482 of Cr.P.C. challenging the order dated 14.2.2003 and 21.4.2005 passed in I..C. case No.73 of 2003 by the learned J.M.F.C., Narsinghpur wherein in the first order he took cognizance of the offence under Sections 294/354/323/379/506/448/34 I.P.C. read with Section 3 of the S.C. and S.T. (P.A.) Act against the petitioners, and in the second order rejected the petition under Section 210 (1) of Cr.P.C. wherein the petitioners had prayed to call for a report from the O.I.C. of Kanpur P.S. in G.R. case No.143 of 2003 and issued N.B.W. of arrest against the accused-petitioner No.1. 2. Bereft of unnecessary details the facts leading to filing of this CRLMC is that Santilata Sethy, Opp. party No.2 filed the aforesaid complaint case before the J.M.F.C., Narasingh¬pur on the allegation that on 8.9.2003 at about 7 P.M. the peti¬tioners forcibly put a cabin on the land belonging to her. As the brother of the complainant protested it the petitioners assaulted him. They also assaulted the complainant and her sister Kuni Sethy and abused them in filthy language calling their Caste name ‘Dhoba’ when they came to the rescue of their brother. It is further alleged that accused petitioner No. 1 and petitioner no.2 snatched away a necklace weighing one Bhari from Kuni Sethy. After going through the complaint petition, initial statement of the complainant and the evidence of witnesses, the Magistrate took cognizance of the aforesaid offences as mentioned earlier. On 15.4.2005 petitioner No.1 filed a petition under Section 210 (1) Cr.P.C. with a prayer to call for a report from the O.I.C., Kanpur P.S. and stay the further proceeding in the complaint case on the ground that for the self-same occurrence the brother of the complainant lodged a report on 16.9.2003 before the O.I.C. of Kanpur P.S. giving rise G.R. case No. 46 of 2003. But, the learned trial Court rejected the petition refusing to call for a report from the O.I.C. concerned on the ground that the petition¬ers filed a Xerox copy of the F.I.R. instead of filing a certi¬fied copy thereof and issued N.B.W. of arrest against accused-petitioner No. 1. Being aggrieved with the said orders the peti¬tioners preferred this Criminal Misc. case. 3. Being aggrieved with the said orders the peti¬tioners preferred this Criminal Misc. case. 3. Learned counsel for the petitioners submitted that the petitioners apprehending their arrest in G.R. case No. 146 of 2003 applied for pre-arrest bail before this Court vide BLAPL No. 8100 of 2003 wherein they were directed to be released on bail on surrendering before the Court below. Accordingly, they surren¬dered before the trial Court within the time stipulated and were enlarged on bail. So the order of taking cognizance in the com¬plaint case should be quashed. Cognizance of the aforesaid of¬fences was taken on 14.2.2005 and the petition under Section 210(1) Cr.P.C. was filed on I5.4.2005.i.e.much after the order of taking cognizance. The cognizance order cannot be quashed only because a G.R. case is pending against the petitioners on the self-same accusation. As per Section 210(1) Cr.P.C. if it is made known to the Magistrate that a G .R. case is pending on the self-same accusation, he shall call for a report from the police officer concerned and stay further proceeding of the complaint case till the report is received. In the present case as men¬tioned earlier, the petitioners filed a petition to call for a report from the police officer concerned on the ground that a G.R. case is pending on the same allegation as made in the com¬plaint case. They also filed the Xerox copy of the F.I.R. of the G.R. case but the trial Court turned down the petition on the ground that certified copy of the G.R. case is not filed. When pendency of the G.R. case was brought to the notice of the learned trial Court it was its duty to call for a report. Filing of certified copy of the F.I.R. is not pre-requisite for calling for such a report; so the order refusing to call for a report from the police officer concerned cannot stand. 4. As regards the order of issuance of N.B.W. of arrest against petitioner No.1, learned counsel for the petitioners submitted that petitioner No.1 filed a petition under Section 205 of Cr.P.C. before the Court below, even though he did not receive summons in the G.R. Case. When the said petition was rejected, the trial Court ought to have ordered to issue fresh summons against the said petitioner. When the said petition was rejected, the trial Court ought to have ordered to issue fresh summons against the said petitioner. As found from the impugned order dated 21.4.2005 since service of summons was not sufficient against the other accused-petitioners order was passed to issue fresh summons against them. When the petition under Section 205 Cr.P.C. was rejected, the trial Court ought to have ordered to issue fresh summons instead of ordering for issuance of N.B.W. of arrest against petitioner No. 1. So the order of issuance of N.B.W. of arrest against him deserves to be recalled. 5. In the circumstances, the petition under Section 482 of Cr.P.C. is allowed in part. The order refusing to call for a report from the police officer concerned is set-aside. The trial Court is directed to call for a report from the concerned police officer to be submitted within a reasonable time as would be stipulated by it. If charge sheet is submitted, both the cases shall be tagged together and proceeded with in accordance with law. Order for issuance of N.B.W. of arrest against petitioner No.1 is set aside. If in the meantime N.B.W. of arrest has al¬ready been issued, the same be recalled. So far as the order of taking cognizance is concerned, it is confirmed. Accordingly the CRLMC is allowed in part. CRLMC allowed in part.