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2010 DIGILAW 17 (ORI)

NARAYAN DAS ` TUNLA v. STATE OF ORISSA

2010-01-11

S.K.MISHRA

body2010
JUDGMENT : 1. Heard. Admit. 2. In this revision the Petitioner assail the order dated 07.11.2008 passed by the learned S.D.J.M., Jagatsinghpur in 1.C.C. No. 157 of 2008, wherein he took cognizance of offence under Sections 302, 201, 120B/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC for brevity) and issued processes against the present Petitioners along with Dwarikanath Das and Urmila Das. 3. The prosecution alleges in this case that on 27/28.05.2007 the complainant's son Babu ' Saroj Kumar Mohanty, while he was sleeping in Binapani Jubak Sangh-cum-Library room of village Aranga. was found dead with multiple injury on his person and as some circumstantial evidence and previous enmity was there with the deceased and one Dwarikanath Das, i.e., the brother of Petitioner No. 1 and father of Petitioner No. 4, F.I.R. was filed only against Dwarikanath Das for alleged offence u/s 302, 1.P.C., which was registered as Raghunathpur P.S. Case No. 51 of 2007 corresponding to G.R. Case No. 342 of 2007 of the Court of learned S.D.J.M., Jagatsinghpur. After lodging of the F.I.R., the Investigating Officer took up the investigation and filed charge sheet u/s 302, IPC only against Dwarikanath Das before the learned S.D.J.M. Accordingly, learned S.D.J.M., took cognizance of the offence u/s 302, IPC and ordered prosecution against Dwarikanath Das. 4. After filing of the charge sheet, the complainant filed 1CC NO. 152 of 2007 before the said S.D.J.M. His complaint was dismissed by learned S.D.J.M., as per the order dated 16.11.2007, as not maintainable. Challenging that order, the complainant approached this Court in an application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for brevity), which was registered as 6riminal Misc. Case No. 2513 of 2007, wherein this Court found some discrepancies in the statement and also in the investigation and, hence, was pleased to direct the I.G. of Police (Crime Branch), Orissa to examine the matter and to submit his opinion. Thereafter, an affidavit was filed by S.P., CID (CB), Cuttack. On perusal of the affidavit, some irregularities were observed by this Court and accordingly it was directed that further investigation be carried u/s 173(8) of the Code. After the investigation, some further materials were collected and charge sheet was submitted against co-accused Urmila Das u/s 201/34, IPC. Thereafter, an affidavit was filed by S.P., CID (CB), Cuttack. On perusal of the affidavit, some irregularities were observed by this Court and accordingly it was directed that further investigation be carried u/s 173(8) of the Code. After the investigation, some further materials were collected and charge sheet was submitted against co-accused Urmila Das u/s 201/34, IPC. Pursuant thereto, the Court below took cognizance of the offence u/s 201/34, IPC and issued process against Urmila Das. 5. While the matter stood thus, the complainant filed a protest petition, which was registered as 1CC No. 157 of 2008. In that complaint petition, these Petitioners along with co-accused Dwarikanath Das and his wife Urmila Das are arrayed as accused. The Magistrate recorded the statement of the complainant u/s 200 of the Code. Witnesses produced by him were examined u/s 202 of the Code. The Magistrate, however, did not examine the two doctors sought to be examined by the complainant, and as per the order dated 07.11.2008 taking cognizance of the offence u/s 302, 201, 120B/34, I.P.C. ordered issue of process against the present Petitioners. Such order of cognizance and issue of process are challenged in this revision. 6. Learned counsel for the opposite party No. 2 submitted the certified copies of the document, like the statement of witnesses recorded u/s 202 of the Code, copies of the order passed by the' lower Court as well as this Court in the earlier application u/s 482 of the Code. Since the documents filed before this Court along with CD. available were found adequate, this Court thought expedient not to call for the L.C.R. and the revision application is disposed of at the stage of admission. 7. Learned counsel for the Petitioners argued at length challenging the order of cognizance. The essential points raised by the Petitioners are as follows:- i. In view of the dismissal of the earlier complainant, the second complaint petition is not maintainable. In view of the fact that the order passed by the learned S.D.J.M., on 16.11.2007 was reasoned order, second complaint petition is not maintainable; Since the Hon'ble High Court of Orissa has ordered that further investigation be taken up and charge sheet be filed, it was not proper on the part of the learned S.D.J.M. to take cognizance of the offence on the second application. The order passed by this Court in Criminal Misc. The order passed by this Court in Criminal Misc. Case No. 2513 of 2007 still holds good. ii. When witnesses examined at different stages by the Investigating Officer, i.e. the initial stage and secondly after order passed by this Court in Misc. Case No. 2513 of 2007 do not implicate the petitionees, it was not proper on the part of learned S.D.J.M., to take cognizance on the basis of the materials collected u/s 202 of the Code. iii. There is no material against the Petitioner, Nirupama Das and issue of process against her is bad. 8. Learned counsel for the Petitioners relying on the aforesaid contentions, therefore, urged the Court to allow the revision and quash the order of cognizance and issue of process against the Petitioners. Learned counsel for the opposite party No. 2 argued at length and submitted that the order passed on 16.11.2007 by the learned S.D.J.M. is not on merit as no statement u/s 200 of the Code, was recorded nor any enquiry was conducted, as contemplated u/s 202 of the Code. Further more, learned Counsel for the opposite parties submits that since as per the order passed by this Court in Criminal Misc. Case No. 2513 of 2007 on 23.04.2009, the Investigating Agency investigated into the case and filed charge sheet adding only Urmila Das as an accused to the case, the complainant has the right to file further protest petition and it can be treated as second complaint. Moreover, learned Counsel for the opposite party No. 2 further submitted that, even in the alternative, it is treated as second complaint, then also it is not barred under the law. 9. The learned Addl. Standing counsel also refers to some of the statement recorded by the Investigating Officer in course of investigation of the case and pointed out witnesses like Khetramohan Nayak and Lochana Nayak (examined as P.Ws.4 and 5 in the enquiry u/s 202 of the Code) have implicated the Petitioners in their statement recorded u/s 161 of the Code. Those witnesses have not been cited as witnesses in the charge sheet. Further more, it is submitted that the Magistrate taking cognizance shall give more weightage to the statement recorded u/s 202 of the Code. Those witnesses have not been cited as witnesses in the charge sheet. Further more, it is submitted that the Magistrate taking cognizance shall give more weightage to the statement recorded u/s 202 of the Code. It is alleged by the complaint that when the Investigating Officer has not properly investigated into the case, it shal.l not be illegal to rely only on the statement recorded u/s 202 of the Code and take cognizance and issued process against the accused persons. Learned counsel for opposite party as well as learned Standing Counsel conceded that there is no direct material against the Petitioner Nirupama Das. But learned Counsel for opposite party No. 2 vehemently argued that Nirupama being bone of the contention for which there was dispute between the parties in the sense that the deceased allegedly promised to marry her and kept relationship with her. But later on his marriage was to be solemnized with Anr. person. The Offence u/s 120B, IPC is allege to have been committed by the said Petitioner No. 4. 10. The Petitioners seek to revise the order taking cognizance. The order taking cognizance is a revisable order, in this connection, the reported decision of Madhu Limaye Vs. The State of Maharashtra, which is relied upon by the Division Bench of this Court in Ramesh Samal and eight Ors. v. Chabl Mdrtdal and Anr in 1987 (I) OCR 1. Thus, the order impugned is a revisable order. 11. Coming to the contention no, 1, it is seen that initially after completion of investigation, the Investigating Officer submitted charge sheet against one Dwarikanath Das. After filing of the charge sheet, the complainant.i.e., the opposite party No. 2 initiated I.C.C. 152 of 2007. Learned Magistrate heard on the maintainability of the complainant and as per the order dated 16.11.2007 rejected the same as not maintainable. The Magistrate has observed that the complaint filed on the self-same occurrence, for which the report of the police u/s 173 of the Code has already been filed. He further held that once cognizance of the offence u/s 190 of the Code has already been taken by that Court and the case record has been committed to the Court of sessions, no second cognizance can be taken by the Court. Therefore, he rejected the complaint petition. Such order was assailed in the Criminal Misc. He further held that once cognizance of the offence u/s 190 of the Code has already been taken by that Court and the case record has been committed to the Court of sessions, no second cognizance can be taken by the Court. Therefore, he rejected the complaint petition. Such order was assailed in the Criminal Misc. Case No. 2513 of 2007, wherein this Court ordered that the prosecution should comply to the instructions as indicated paragraph-7 of the affidavit. Thereafter, this Court ordered that in the meantime further investigation as indicated in paragraph-7 of the affidavit shall be completed. 12. Thereafter! further investigation of the case was taken up and Anr. accused, namely, Urmila Das, was arrayed as accused, in addition to Dwarikanath Das. Thereafter, the complainant filed the complaint petition as a mark of protest to such police action. In view of the ratio decided in Sridhar Jena and Another Vs. State of Orissa the learned Magistrate took up inquiry u/s 202 of the Code after recording the statement of the complainant u/s 200 of the Code. After completion of such enquiry, the learned Magistrate took cognizance of the offence. 13. It is seen that the earlier complaint case filed by the complainant was not disposed of on merit in the sense that the learned Magistrate neither recorded the statement of the complainant u/s 200 of the Code nor enquired into the case, as contemplated u/s 202 of the Code, the Hon'ble Apex Court in Mahesh Chand v. B. Janardhan Reddy and Anr. (2003) 24 OCR (SC) 438 has held that is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate u/s 204 of the Code, may take cognizance of an offence and issue process if there is sufficient ground for proceeding. Hon'ble Apex Court distinguished the earlier reported decision of Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar (1962) Supp. 2 SCR 297. wherein the Supreme Court has held that the second complaint could be dismissed after a decision have been given against the complainant in a previous matter upon a full consideration of his case. Hon'ble Apex Court distinguished the earlier reported decision of Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar (1962) Supp. 2 SCR 297. wherein the Supreme Court has held that the second complaint could be dismissed after a decision have been given against the complainant in a previous matter upon a full consideration of his case. The Apex Court has further held that second complaint on the facts could be'entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. Keeping in view the exceptional circumstances of the case, wherein the Investigating Officer has not submitted the charge sheet against the present Petitioners even though there were materials against them and had not cited eye witnesses as charge sheet witness, it is proper and expedient to hold that the second complaint case is maintainable. The submission of the learned Counsel for the Petitioners is that the order passed by this Court in Criminal Misc. Case No. 2513 of 2007 shall operate as a bar for further complaint though appears very attractive is not acceptable on proper scrutiny. 14. Coming to the second point raised by the learned Counsel for the Petitioners, it is seen that some of the witnesses have been examined by the Investigating Officer and their statements have been recorded u/s 161 of the Code and they have supported the prosecution thereby implicating the present Petitioner nos. 1 to 3 but they have not been shown as eye witness nor they have been cited to the witness in the charge sheet. Further more, it is consistent case of the complainant that the Investigating Officer has not properly investigated into the case and has left out some persons, who should be tried for the offence u/s 302 of the Indian Penal Code. In such a situation, when Magistrate was confronted with the option of taking cognizance only on the basis of statement recorded by him u/s 200 and 202 of the Code, it was open to the Magistrate to look only into the statement recorded by him in such an enquiry and not be swayed by the statements recorded by the Investigating Officer. In other words, when such a situation arises, it is duty of the Magistrate to come to the conclusion on the basis of the statements recorded by him under Sections 200 and 202 of the Code and not to be influenced to the materials collected by the I.O. u/s 161 of the Code. Hence, the order passed by the Magistrate relying on the materials available on record, which was collected u/s 202 of the Code was not at all illegal. 15. As far as Petitioner Nirupama Das is concerned, learned Counsel for the opposite party though conceded that there is no direct material against her for participating in the commission of the crime, it is submitted that the said Nirupama is the main crux of the dispute for which the offence has been committed. Though it is settled principle of law that even when there is a grave suspicious, charge can be framed so also cognizance can be taken. But in this case, learned Counsel for the opposite party n..2 as well as Addl. Standing Counsel failed to point out any such material against Petitioner No. 4 indicating that there is a grave suspicion against her. But as far as Petitioner nos. 1, 2 and 3 are concerned, the materials available before the learned Court below in the shape of statement of P.W.1 Subash Pradhan, P.W.4 Khetramohan Nayak and P.W.8 Lochana Nayak, the offence u/s 302 as alleged is clearly made out and the cognizance taken by the Court below and the issue of process against them are not bad. However, there is no material to sustain the order of issue of process against Nirupama Das. 16. In the result, the revision application succeeds in part. The order of issuance of process against Petitioner No. 4 Nirupama Das is hereby set aside. However, the order of taking cognizance and issuance of process against Petitioner nos. 1, 2 and 3 are left undisturbed. Petitioner nos. 1, 2 and 3 are directed to appear before the learned Magistrate on or before 29.01.2010. The Magistrate shall expeditiously commit the case. The CRLREV is accordingly disposed of. The stay order passed on 19.12.2008 in Misc. Case No. 2711 of 2008 stands vacated.