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2009 DIGILAW 340 (ORI)

Bishnu Mohan Mohapatra v. State of Orissa

2009-04-17

I.MAHANTY

body2009
JUDGMENT I. MAHANTY, J. — In the present application under Section 482 Cr.P.C., challenge has been made to an order of cognizance dated 6.1.2004 passed by the learned J.M.F.C., Basudevpur in G.R. Case No.184 of 2003, whereby, cognizance against the petitioner was taken under Sections 488, 427, 506 & 201 I.P.C. 2. The petitioner is a practising advocate of the Bhadrak Bar Association and was appointed as Assistant Public Prosecutor in Bhadrak District since July 2001. From the pleadings of the case, it appears that one Sk. Barsat Ahamed, Office Peon attached to the Court of J.M.F.C., Basudevpur submitted a report against the petitioner on 27.9.2003 which was forwarded by the learned J.M.F.C. to Basudevpur Police Station, on the basis of which Basudevpur P.S. Case No.128 of 2003 was registered. 3. Sri Sahoo, learned counsel for the petitioner, inter alia, contended that on a plain reading of the entire F.I.R. and the charge-sheet as well as the evidence collected by the Inves¬tigating Officer, no case is made out against the petitioner to face trial for the offences as noted hereinabove. Learned counsel for the petitioner asserts that the impugned order of cognizance clearly indicates non-application of judicial mind to the facts of the case and the materials produced along with the charge-sheet, he submits that cognizance in the matter has been taken in a mechanical manner. In support of the contention, learned counsel for the peti¬tioner submits that whereas in the F.I.R. it was alleged that on 25.9.2003 at about 1.00 P.M. when the Peskar of the Court of J.M.F.C., Basudevpur had gone to the toilet and had asked the informant Sk. Barsat Ahamed, Office Peon, to bring out the re¬cords in G.R. Case No.1488 of 1995, at that time the petitioner came and perused the said G.R. Case record and after tearing out one S.R. from the Court records, tried to insert the same in his pocket. It is further alleged that the Clerks raised an objection to the same and took back the S.R. from the hands of the peti¬tioner and when the Bench Clerk (Peskar) of the Court asked the petitioner to come to meet the Magistrate, the petitioner threat¬ened and told him not to shout and left the Court room. It is further alleged that the Clerks raised an objection to the same and took back the S.R. from the hands of the peti¬tioner and when the Bench Clerk (Peskar) of the Court asked the petitioner to come to meet the Magistrate, the petitioner threat¬ened and told him not to shout and left the Court room. It is further stated that during the investigation of the case, the S.R. was seized and left in the zima of the Head Clerk of the J.M.F.C., Basudevpur and after completion of investigation, charge-sheet was submitted under Sections 448, 427, 506 and 201 I.P.C. and thereafter, cognizance was taken in the aforesaid provisions of law. It is further asserted that in the meantime, G.R. Case No.1488 of 1995 from which the S.R. had allegedly been recovered has been disposed of on 19.1.2004 and an order of acquittal has been passed therein. 4. Sri Sahoo, learned counsel for the petitioner asserts that while Section 448 I.P.C. deals with “punishment for house-trespass”, Section 442 I.P.C. defines “house trespass” which applies to, whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwell¬ing or any building used as a place for worship, or as a place for the custody of property. The term “criminal trespass” has been defined under Section 441 I.P.C. which applies to whoever enters into or upon property in the possession of another “with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property.” It is submitted on behalf of the petitioner that the J.M.F.C. Court room at Basudevpur being admittedly a “public place”, and is accessible by the public and the petitioner being an advocate and Assistant Public Prosecutor, could not be alleged to have committed” house trespass” by entering into the Court room which is a public place. In this respect, reliance was placed by the learned counsel for the petitioner in the case of Sudarsan Jena v. State of Orissa, 1973 (1) C.W.R. 195. 5. In this respect, reliance was placed by the learned counsel for the petitioner in the case of Sudarsan Jena v. State of Orissa, 1973 (1) C.W.R. 195. 5. In so far as the offence under Section 427 I.P.C. is concerned which deals with mischief causing damage to the amount of Rs.50/- or upwards, it is submitted that ‘mischief’ has been defined under Section 425 I.P.C. which means, whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situa¬tion thereof as destroys or diminishes its value or utility, or affects it injuriously. It is alleged in the F.I.R. that the petitioner tore the S.R. and tried to put the same in his pocket, from where it was snatched away by the Peskar from his hand,. It is alleged that from the F.I.R. story and the statement of Sk. Tarique Hussain, Clerk of the said Court recorded under Section 161 Cr.P.C., in which he states that, the petitioner threw a paper outside and when he was asked as to what he threw outside, the petitioner replied nothing, but out of suspicion he went and collected the paper from outside and found that it was one S.R. of G.R. Case No.1488 of 1995. It is alleged that the statement made in the F.I.R. regarding the manner in which the S.R. was taken away, varies with the statement recorded under Section 161 Cr.P.C. and therefore, they completely contradict to each other. It is fur¬ther contended that Section 427 would no application since there is no evidence on record regarding the extent of alleged damage to the S.R. nor is there any material on record to show that the S.R. was taken away by the petitioner and/or was at all torn. It is asserted that the S.R. was seized by the police during investi¬gation of the case from the Court’s Records and handed over to the zima of Narottam Behera, Head Clerk of J.M.F.C., Basudevpur. Therefore, it would clear that the S.R. was never torn at all, completely falsifying the prosecution case. 6. It is asserted that the S.R. was seized by the police during investi¬gation of the case from the Court’s Records and handed over to the zima of Narottam Behera, Head Clerk of J.M.F.C., Basudevpur. Therefore, it would clear that the S.R. was never torn at all, completely falsifying the prosecution case. 6. In so far as the offence under Section 506 I.P.C. is concerned, for an offence to made out thereunder, the “threat should be a real” one and not just mere words when the person uttering it does not exactly mean what he says and also when the person at whom threat is launched, does not feel threatened actually. In view of the aforesaid contention, reliance has been placed on the judgment in the case of Noble Mohan Das v. State, 1989 (1) Crimes 73 and it is stated that there is no evidence on record as to, what words were exactly uttered at the time of occurrence and in absence of any such statement, it is asserted that the requirement of “criminal intimidation” as defined under Section 503 I.P.C. cannot be satisfied and no proceeding under Section 506 I.P.C. against the petitioner was possible in law. 7. In so far as the offence punishable under Section 201 I.P.C. is concerned, it is stated that the same can only apply, if the petitioner is an accused who has caused any evidence for the commission of that offence to disappear with the intention of screening the offender from legal punishment. Admittedly, the document alleged to have been taken away was a S.R., and, there¬fore, was not a evidence of the case being tried by the learned J.M.F.C., Basudevpur and hence, it is alleged that no offence under Section 201 I.P.C. has been made out. In the light of the aforesaid submissions, learned counsel for the petitioner submits that the order of cognizance dated 6.1.2004 passed by the learned J.M.F.C., Basudevpur in G.R. Case No.184 of 2003 may be quashed since no offence has been made out against the petitioner to justify any trial. 8. Sri Mishra, learned Addl. In the light of the aforesaid submissions, learned counsel for the petitioner submits that the order of cognizance dated 6.1.2004 passed by the learned J.M.F.C., Basudevpur in G.R. Case No.184 of 2003 may be quashed since no offence has been made out against the petitioner to justify any trial. 8. Sri Mishra, learned Addl. Standing Counsel for the State, on the other hand, submitted that since the Investigating Officer on completion of the investigation submitted a charge sheet and the order impugned prima facie indicates that the learned J.M.F.C. upon being satisfied of a prima facie case against the petitioner has been made out has taken cognizance of the offence and the pleas being raised by the learned counsel for the petitioner are not worthy of any consideration at the present stage, since the petitioner would in any event get a further opportunity to raise all such contention at the time of framing of charge. 9. Sri Sahoo, learned counsel for the petitioner in re¬sponse to the contentions made above, submitted that still there can be no doubt that the Magistrate can discharge the accused at any stage of the trial, if he considers the charge to be ground¬less, but that does not mean that an accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution, when the complaint does not make out any case against him and still be compelled to undergo the agony of a criminal trial. In support of the aforesaid proposition, reliance was placed on the judgment of the Hon’ble Supreme Court in the case of M/s. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, AIR 1998 SC 128. 10. I have given anxious consideration to the submissions advanced by the learned counsel for both the parties and on perusing the impugned order of cognizance, as well as the F.I.R. and statements recorded under Section 161 Cr.P.C. I am of the view that it is well settled in law under Section 190 Cr.P.C. that while a Magistrate is empowered to take “cognizance of any offence”. But, even at the stage of taking cognizance, it is required that the Magistrate must apply his judicial mind to the F.I.R. and the investigating report as well as the 161 statement to find out as to whether any case is made out against the ac¬cused and if so, under which provision of the Indian Penal Code a Magistrate is empowered to discharge the accused at any stage of trial, if he considers the charge to be groundless, but that does not mean that the Magistrate will take cognizance of an offence even in a case where the F.I.R./evidence collected in course of the investigation does not make out any case against the petitioner since the impugned order of cognizance does not dis¬close the application of judicial mind to the facts/evidence provided by the prosecution and seems to have been guided merely by the charge-sheet submitted, it clearly reveals that the Magis¬trate has acted in a mechanical manner. Hence, I am of the view that this is a fit case where the order of cognizance ought to be quashed due to non-application of judicial mind. 11. Accordingly, the order dated 6.1.2004 passed by the learned J.M.F.C., Basudevpur, in G.R. Case No.184 of 2003 is quashed and the matter is remanded back to the Court of the learned J.M.F.C., Basudevpur who is directed to act in accordance with law by applying his judicial mind to the evidence collected in course of the investigation and, therefore, to reconsider afresh the issue of cognizance in this case. The CRLMC is allowed. CRLMC allowed.