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2012 DIGILAW 515 (ORI)

Dhruba Charan Behera v. State of Orissa

2012-11-21

C.R.DASH

body2012
JUDGMENT C.R. Dash, J The petitioner was working as the Headmaster and opposite party No.2 was working as the Hindi Teacher at the relevant time in P.R. High School, Bolangir. The petitioner in the present Criminal Misc. Case has impugned order dated 8.11.2005 passed by the learned S.D.J.M., Bolangir in 1 C.C. No. 65 of 1999 taking cognizance of offence under Sections 323/294, I.P.C. as against the petitioner. 2. A compendium of the case relevant for disposal of the criminal misc. case is as follows. At the relevant time as indicated supra, the petitioner was working as Headmaster and opposite party No. 2 was working as Hindi Teacher in P.R. High School, Bolangir. It was 5.00 P.M. on 30.9.1999. Both of them were leaving the school. At that time opposite party No.2 Siba Sankar Naik asked the petitioner near the school gate as to why he withheld his (O.P.No.2’s) one day pay. The petitioner Dhruba Charan Behera got enraged and abused him (O.P.No.2) in obscene words. It is further alleged that he caught hold of the shirt collar of the complainant Siba Sankar Naik( Present O.P.No.2) and dealt a slap on his left cheek. Judhistir Naik, elder brother of the complainant, who was present there separated them. The complainant Siba Sankar Naik reported the matter in Bolangir Town Police Station. When no action was taken by the police, complainant Siba Shankar Naik filed 1.C.C. No. 65 of 1999 against the present petitioner alleging offence under Sections 294/506/323, I.P.C. Prayer was made to take cognizance and issue process against the petitioner in the aforesaid complaint case. In course of enquiry under Section 202, Cr.P.C. the complainant examined his elder brother Judhistir Naik and one Jagdish Rout, whose name does not find mention in the list of witnesses of the complaint petition. Learned Magistrate on consideration of the averments made in the complaint petition, initial statement of the complainant and statements of the witnesses dismissed the complaint petition under Section 203, Cr.P.C. vide order dated 27.11.1999. 3. The aforesaid order dated 27.11.1999 was challenged in Criminal Revision No. 56/3 of 1999-2001. Learned Ad hoc Additional Sessions Judge (FTC), Bolangir set aside the aforesaid order dated 27.11.1999 and remitted back the matter to the learned Magistrate. Again enquiry under Section 202, Cr.P.C. was fixed to be held on 14.01.2002 on such remand. 3. The aforesaid order dated 27.11.1999 was challenged in Criminal Revision No. 56/3 of 1999-2001. Learned Ad hoc Additional Sessions Judge (FTC), Bolangir set aside the aforesaid order dated 27.11.1999 and remitted back the matter to the learned Magistrate. Again enquiry under Section 202, Cr.P.C. was fixed to be held on 14.01.2002 on such remand. On 01.03.2002 the complainant (O.P. No.2) examined himself and filed a memo not to examine any other witnesses. Accordingly, the enquiry was closed, learned Magistrate on consideration of the materials on record obtained afresh was pleased to dismiss the complaint petition under Section 203 Cr. P.C. again vide order dated 8.03.2002. 4. The matter was again carried in revision vide Criminal Revision No. 15 of 2002 before the learned Sessions Judge, Bolangir. Vide order dated 28.4.2002 learned Ad hoc Additional Sessions Judge (FTC), Bolangir again set aside the order dated 8.3.2002 dismissing the complaint under Section 203, Cr.P.C. and remitted back the matter to the learned Magistrate. The matter was again taken up by learned Magistrate on second remand. After several adjournments to produce witness the complainant finally got one Saroj Kumar Sai examined on 4.11.2005. It is pertinent to mention here that the aforesaid Saroj Kumar Sai was not a witness mentioned in the list of witnesses in the complaint petition. Learned Magistrate after such enquiry under Section 202, Cr.P.C. found a prima facie case under Sections 323/506/294 I.P.C. made out against the present petitioner and accordingly took cognizance vide order dated 8.11.2005, which is impugned in the present criminal misc. case. 5. Learned counsel for the petitioner submits that the complaint petition having been dismissed earlier on two earlier occasions by the same court it was not proper on the part of the said court to take cognizance against the petitioner by a cryptic order on the basis of statement of a witness whose name does not find mention in the complaint petition. It is further submitted that learned Magistrate has not tried to reach at the truth and has taken cognizance of offence under Sections 323/506/294, I.P.C. without application of his judicial mind. Learned counsel for the opposite parties on the other hand submits that the expression “all the witnesses” occurring in Section 202, Cr.P.C. should be construed to mean all the witnesses, whom the complainant chooses to examine irrespective of his name being mentioned in the complaint petition or not. Learned counsel for the opposite parties on the other hand submits that the expression “all the witnesses” occurring in Section 202, Cr.P.C. should be construed to mean all the witnesses, whom the complainant chooses to examine irrespective of his name being mentioned in the complaint petition or not. It is further submitted by learned counsel for the opposite parties that learned Magistrate after applying his judicial mind to the statement of all witnesses obtained in course of enquiry under Section 202, Cr.P.C. has rightly taken cognizance. 6. The scope of enquiry under Section 202, Cr.P.C. is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the finding that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at the stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for absoureding the guilt or otherwise of the said accused person. Further the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the court has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry. Section 203, Cr.P.C. consist of two parts, the first part lay down the materials which the Magistrate must consider, and the second part state that if after considering those materials there is no sufficient ground for proceeding, the Magistrate may dismiss the complaint. Section 203, Cr.P.C. consist of two parts, the first part lay down the materials which the Magistrate must consider, and the second part state that if after considering those materials there is no sufficient ground for proceeding, the Magistrate may dismiss the complaint. While exercising such power under Section 203 of the Code, it is incumbent upon the Magistrate to reflect in his order the basis for arriving at the conclusion that there are no sufficient grounds to proceed with the complaint case. In other words, Section 203 makes it incumbent upon the Magistrate to give reasons for forming an opinion that the complaint petition is liable to be dismissed. The Magistrate must apply his judicial mind to materials on which he has to form a judgment and reflect in the order. However, while arriving at his judgment, the Magistrate is not fettered in any way except by judicial considerations. He is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea; provided always that there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of inquiry under Section 202, Cr.P.C. and has applied his mind judicially to the materials on record, it would be erroneous in law to hold that he should not consider or discuss the materials available and the statements recorded. A Magistrate is empowered to hold an inquiry into a complaint as to commission of certain offence in order to ascertain whether there was sufficient foundation for it to issue process against the person or persons complained against and such order under Section 203, Cr.P.C. should be a speaking one. In other words, when a Magistrate intends to dismiss a complaint petition, he has to give reasons. 7. In the present case, the same court on earlier two occasions took into consideration delay of about ten days in filing the complaint petition, non-examination of natural witnesses, facts mentioned in G.R. Case No.485 of 1999 filed by the present petitioner against the Hindi Teacher (present opposite party No.2) and other materials to come to a conclusion that there is no sufficient ground for proceeding against the petitioner. Admittedly, both the petitioner and opposite party No.2 are employees of the same school and the petitioner being the Headmaster is the administrative head of the institution. The occurrence happened at the School gate at about 5.00 P.M. on 30.9.1999. It militate against commonsense as to how at that time no teacher, student or other natural witnesses were present at the spot and only person present was the elder brother of the complainant. Name of another witness who was examined by the complainant find no mention in the complaint petition. The present petitioner had lodged F.I.R. on 01.10.1999 as present opposite party No.2 had assaulted him in his office chamber alleging with helding of his one day’s pay. Ten days thereafter opposite party No.2 filed complaint petition against the present petitioner without explaining satisfactorily the delay. The court taking into consideration all the aforesaid facts and the parrot like statements of the witnesses did not feel proper to proceed against the petitioner any further in the matter. The revision carried by opposite party No.2 in two occasions ended in remand of the matter to the learned Magistrate and on the third occasion after the second remand, leaned Magistrate took cognizance being oblivious of the earlier finding by the court. The scope of enquiry under Section 202, Cr.P.C. is to find out the truth by application of judicial mind. It does not speak of mechanical acceptance of fact narrated parrot like by some witnesses as truth. 8. Taking into consideration all the aforesaid facts and my discussion supra, the order of cognizance dated 8.11.2005 passed by leaned S.D.J.M., Bolangir in I.C.C. No.65 of 1999 is quashed and the Criminal Misc. Case is allowed.