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2012 DIGILAW 465 (ORI)

Ambikesh Mohapatra v. Laxmipriya Manna

2012-10-17

B.K.NAYAK

body2012
ORDER 17.10.2012Heard learned counsel for the petitioners, learned counsel for the opposite party. Perused the records. Order dated 24.12.2008 passed by the learned S.D.J.M., Balasore in ICC No.387 of 2006 taking cognizance of offences under Sections 420, 424, 465, 466, 468, 506/34 of the Indian Penal Code has been assailed by four of the accused persons, in this application under Section 482 of the Code of Criminal Procedure. The main ground of challenge raised by the learned counsel for the petitioners is that on filing of the complaint case, learned S.D.J.M., Balasore vide his order dated 08.09.2006 being satisfied that a police investigation was going on in respect of the complaint of the complainant-opposite party called for a report from the O.I.C. concerned and adjourned the case from time to time awaiting such police report, but in spite of non-submission of police report he proceeded with enquiry vide his order dated 09.05.2008 and ultimately took cognizance by the impugned order which is in violation of the provisions contained in Section 210, Cr.P.C. and therefore the cognizance be quashed. The second ground of attack is that even assertions made in the complaint petition and the statements of the witnesses recorded during enquiry do not make out a prima facie case as besides the statements, there was no other material before the learned S.D.J.M. for his prima facie satisfaction about the forgery etc. relating to offences under Sections 465, 466, 468 of the Indian Penal Code. Learned counsel for the opposite party-complainant on the other hand contends that Section 210 Cr.P.C. has no application to the present case inasmuch as there was no material before the magistrate for his prima facie satisfaction that a police investigation is going on in respect of the complaint case and therefore orders passed from time to time by the learned S.D.J.M. awaiting police report is wholly misconceived. The process calling for police report has only delayed disposal of the complaint lodged by the opposite party. Section 210 Cr.P.C. runs as under : “210. The process calling for police report has only delayed disposal of the complaint lodged by the opposite party. Section 210 Cr.P.C. runs as under : “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence- (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the Investigating Police Officer under Section 173 and on such report cognizance of any offence is taken by the magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” It is evident from Sub-section (1) of Section 210 Cr.P.C. that the Magistrate shall stay the proceeding of a complaint case only when he is satisfied or it is made to appear to him that a police investigation in relation to the offence which is the subject matter of complaint is in progress. The complaint petition in the instant case, copy whereof has been annexed as Annexure-1, reveals that the complainant requested the Police Officers i.e. I.I.C., Balasore as well as the Superintendent of Police, balasore to take action against the accused persons, but the Police authorities instead of taking any action on her request, instructed her to directly approach the Court for which the complainant was compelled to file the complaint case. There is no allegation of any sort that the police accepted the F.I.R. of the complainant and proceeded with the investigation or having registered the case delayed the investigation. Therefore, the order of the learned S.D.J.M. dated 08.09.2006 to the effect that the complainant informed the police officer and accordingly a report from the OIC concerned should be called for and adjourning the case from date to date awaiting such police report was wholly unjustified and was the outcome of complete non-application of mind by the learned S.D.J.M. Section 210 Cr.P.C. has no application in the present case. Therefore, the first ground urged by the learned counsel for the petitioners is rejected. With regard to the submission that no prima facie case is made out, it is found that the allegation in the complaint petition goes to show that subsequent to the marriage of the complainant with accused-petitioner No.4, Sujit Kumar Giri there was torture and ill-treatment of the complainant on the ground of demand of dowry and that subsequently the said accused entered into a bigamous marriage with accused-petitioner No.2, but prepared notarial documents and other LIC papers etc. indulging in forgery in order to show that the marriage of the petitioner Nos.2 and 4 were to the marriage of opposite party with petitioner No.4-Sujit Giri. The submission of the learned counsel for the petitioners that there is no other material with regard to proof of forgery or fabrication of documents except the statements of the complainant and the witnesses examined during enquiry is of no consequence as because at the stage of cognizance the magistrate has to reach only a prima facie satisfaction about the commission of offences and not to scrutinize the evidence to find out whether the evidence is sufficient for the purpose of conviction. The accused-petitioners will get ample opportunity during trial to show that there was no forgery or fabrication of documents. In the light of the discussions made above, I find no infirmity in the order of cognizance. Therefore, the CRLMC is dismissed. CRLMC dismissed.