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2010 DIGILAW 703 (ORI)

BASANTI CHAMPATI v. STATE OF ORISSA

2010-10-21

S.K.MISHRA

body2010
JUDGMENT : S.K. Mishra, J. - Heard learned Counsel for both the parties. Admit. 2. The Petitioner assails the order dated 13.12.2007 passed by the learned J.M.F.C., Banpur in I. C.C. No. 69 of 2007 refusing to take cognizance of the offence alleged. 3. The facts leading to filing of this Criminal Revision may be briefly stated as follows: The present Petitioner filed a complaint before the learned J.M.F.C., Banpur, which was registered as I. C.C. No. 69 of 2007. The offences alleged were under Sections 323, 294, 354, 379/506 of the Indian Penal Code, hereinafter referred as "I.P.C.", for brevity. The complainant alleged that two days prior to the date of occurrence, due to quarrel among the children, there was exchange of hot words in between the complainant and the accused persons and at that time, the accused persons threatened to see her in future. 4. The complainant further alleged that when she was standing near the front verandah of her house, suddenly the accused persons arrived there and abused her in fithy language. When she protested, the accused persons rushed at her, caught hold of her pigtail and twisted the same. The complainant fell down on the floor as a result of which she became half naked. Thereafter, the accused persons dealt kick blows to the back of the complainant and snatched away a gold chain from her neck. 5. After recording the initial statement of the complainant u/s 200 of the Criminal Procedure code, 1973, hereinafter referred to as "Code", for brevity, the learned Magistrate examined the witnesses produced by the Petitioner u/s 202 of the Code. Two witnesses namely, Banamali Biswal and Gobardhan Pradhan were examined on behalf of the complainant. After recording the initial statement and the statements of the witnesses u/s 202 of the Code, learned trial court refused to take cognizance and such order has been assailed in this Revision. 6. Learned Counsel for the Petitioner submits that the order passed by the learned Magistrate is palpably wrong and it is not the duty of the Magistrate to assess the evidence at that stage. Since the Magistrate has discussed the materials available on record and came to a conclusion that the witnesses can not be believed, he has entered into a realm of appreciation of evidence, which is required at the end of the trial. Since the Magistrate has discussed the materials available on record and came to a conclusion that the witnesses can not be believed, he has entered into a realm of appreciation of evidence, which is required at the end of the trial. Learned Counsel for the opposite parties, on the other hand, supported the findings recorded by the trial court and prayed to dismiss the revision petition. 7. On examination of the records it is found out that the Magistrate has come to the conclusion that the witnesses, who have fully corroborated the facts mentioned in the complaint petition, seems to be not believable. It is appropriate to quote the order passed by the learned Magistrate to appreciate the error committed by him. The relevant portion of the order reds as follows: xxx It is found that the complainant and two witnesses stated about the occurrence fully corroborating that the facts mentioned in the complaint petition which seems to be unbelievable on the part of two witnesses who stated after two months of the occurrence but could re-produce the exact verbatim used in the complaint petition. The witnesses stated that they have seen all the occurrence but it is seen from their statement that they being the co-villagers, they have not opened mouth on the act of the accused nor told anything to the complainant after such occurrence but they could come to this Court after two months to say about the occurrence what they have seen. So the entire occurrence as alleged seems to be unbelievable. Applying pious judicial mind and after careful perusing the materials on record I am of the considered opinion that there is no sufficient ground to proceed against the accused cited in the complaint petition. Accordingly, complainant petition stands dismissed u/s 203 of Code. 8. On a plain reading of the order impugned, this Court has come to the conclusion that the Magistrate has entered into a detailed discussion on the merits of the case on appreciation of evidence. At the stage of taking cognizance, the Magistrate is required to see whether the materials on record prima facie reveal a case as alleged by the complainant or otherwise. He is not required to examine in detail to see whether the statements of witnesses are sufficient to convict the accused. At the stage of taking cognizance, the Magistrate is required to see whether the materials on record prima facie reveal a case as alleged by the complainant or otherwise. He is not required to examine in detail to see whether the statements of witnesses are sufficient to convict the accused. Moreover, the learned Magistrate has very strangely come to the conclusion that the witnesses are not believable because they support the case of the complainant after two months of the occurrence and they have not interfered in the incident. These are the circumstances which should be taken into consideration at the final stage of the criminal trial. Hence, the considerations sought by the learned Magistrate are not germane to the process of taking cognizance. 9. Accordingly, the order passed by the learned Magistrate is not sustainable. In the result the Revision application is allowed. The order dated 13.12.2007 passed by the learned J.M.F.C., Banpur in I.C.C. No. 69 of 2007 is here by set aside. The learned Magistrate is directed to reconsider the matter of taking cognizance in the light of the observations made in the judgment. 10. The Petitioner is directed to appear before the learned Magistrate on 14.12.2010. Final Result : Allowed