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2013 DIGILAW 183 (ORI)

Damodar Lenka v. State of Orissa

2013-07-04

B.R.SARANGI

body2013
JUDGMENT Dr. B.R.Sarangi, J. Challenging the order dated 22.7.2004 passed by the learned S.D.J.M., Nilgiri in G.R.Case No. 194 of 2002 under Annexure-3 dismissing the protests petition filed by the petitioner under Section 203, Cr.P.C. and confirmation thereof made by the learned Sessions Judge, Balasore on 12.10.2004 in Crl.Revision Petition No. 101 of 2004 under Annexure-4, the complainant-petitioner has filed this application under Section 482, Cr.P.C. 2. Facts of the case are that the complainant-petitioner initially lodged an F.I.R. in Nilgiri Police Station on 8.4.2001 against opposite parties 2 to 5 for commission of offences under Sections 323, 324, 341, 342, 363, 364, 384, 506, 120-B, 467, 468/34, IPC. Since no action was taken by the police, a copy of the said F.I.R. was also sent to the Superintendent of Police, Balasore on 26.4.2001. However, since it yielded no fruitful result, finding no other alternative, the complainant-petitioner filed a complaint case bearing ICC No. 87 of 2001 before the learned S.D.J.M., Nilgiri, which was sent to Nilgiri Police Station under Section 156(3), Cr.P.C. Accordingly, P.S.Case No. 127 of 2002, corresponding to G.R.Case No. 194 of 2002 of the file of learned S.D.J.M., Nilgiri was registered under Sections 341, 323,365, 467, 506, IPC. The police after completion of investigation, submitted final report. On being noticed, the petitioner filed a protest petition on 25.7.2003 against the final report, on the basis of which, enquiry under Section 202, Cr.P.C. was conducted by the learned S.D.J.M., Nilgiri. In course of enquiry, not only initial statement of the complainant-petitioner was recorded, but also six witnesses were examined on behalf of him. The averments made in the complaint petition were corroborated by the initial statement of the petitioner as well as the statement of the witnesses examined during the enquiry under Section 202, Cr.P.C. On a reading of the entire statement, prima facie case under Sections 341, 323, 465, 467, 506/34, IPC is alleged to have been established. 3. Learned S.D.J.M., Nilgiri dismissed the complaint petition under Section 203, Cr.P.C. on the ground that the witnesses examined by the petitioner during enquiry under Section 202, Cr.P.C. have not witnessed the incident of confinement and assault or taking signature of the complainant on blank papers and accordingly, no prima facie material in respect of the offence is made available. 3. Learned S.D.J.M., Nilgiri dismissed the complaint petition under Section 203, Cr.P.C. on the ground that the witnesses examined by the petitioner during enquiry under Section 202, Cr.P.C. have not witnessed the incident of confinement and assault or taking signature of the complainant on blank papers and accordingly, no prima facie material in respect of the offence is made available. Learned counsel for the petitioner submitted that not only in the complaint petition but also the initial statement recorded under Section 202, Cr.P.C. clearly makes out a cognizable case. Similarly, two of the witnesses, namely, P.Ws.2 and 3 have stated that they have seen the accused Purna in the company of the complainant in a cycle and the other witnesses have stated about the disclosure of the petitioner before them about the incident, which is also admissible as res gestae under Section 6 of the Evidence Act. In view of such position, it cannot be said that there is no prima facie material in respect of the offence. But the revisional court in absence of the counsel for the petitioner, dismissed the petition at the stage of admission without considering the contentions raised in the revision petition. 4. To substantiate the contentions raised, Mr.Sangam Kumar Sahoo, learned counsel for the petitioner has relied upon judgments of this Court reported in 2008(II) OLR 828 (Hrudananda Bewa v. State of Orissa and others), and (1991) 4 OCR 244 (Iswar Chandra v. Sarat Ch. Sahoo), wherein this Court has held that at the stage of taking cognizance, the duty of the Magistrate is to see whether prima facie case is made out for proceeding against the accused and it is not his duty to see whether the evidence is adequate for convicting the accused. He has also relied upon the decisions of the apex Court in the case of Krishnan v. Krishna Beni, 1997 (II) OLR (SC) 95, 1997(13) OCR (SC) 41 and Sakuntala Devi v. Chamru Mahato, (2009) 2 SCC (Criminal) 8 and submitted that this Court can exercise its inherent power in exceptional circumstances after dismissal of the revision petition by the Court of Session and the bar under Section 397(3), Cr.P.C. cannot be lifted to prevent abuse of the process of court or to meet ends of justice. 5. 5. Learned counsel appearing for the opposite party nos.2 to 5 vehemently urged that the application under Section 482, Cr.P.C. is not maintainable as the same has been filed in the garb of a second revision, which is barred under Section 379(3), Cr.P.C. In support of the aforesaid contention, he has relied upon the judgments of this Court reported in (2010) 47 OCR 520 (Narayan Meher v. Mukta Meher and another), 2010 (Supp.-II) OLR 376 wherein the judgment of the apex Court in Balbir v. State reported in AIR 1987 SC 1049 has been relied. 6. On the basis of the aforesaid contentions, the initial statement of the complainant and the statements of the six witnesses recorded under Section 202, Cr.P.C., this Court is required to examine whether prima facie case has been made out or not. On perusal of the complaint petition as well as the initial statement of the complainant and the witnesses recorded under Section 202, Cr.P.C., I am of the view that the same makes out a case of cognizable offence. Furthermore, two of the witnesses, namely, P.Ws.2 and 3 have stated that they have seen the accused Purna in the company of the complainant in a cycle and the other witnesses have stated about the disclosure of the petitioner before them about the incident, which is also admissible as res gestae under Section 6 of the Evidence Act. Therefore, it cannot be said that there is no prima facie material in respect of the offence alleged. But the revisional court in the absence of the counsel for the petitioner without looking into the contentions raised has dismissed the petition at the stage of admission without application of any mind. Keeping in view the ratio of the judgments referred to by the learned counsel for the petitioner, at the stage of taking cognizance, the duty cast on the Magistrate is to see whether prima facie case is made out for proceeding against the accused and it is not his duty to see whether evidence is adequate for convicting the accused. In view of such position, I am of the opinion that both the courts below have committed error while dismissing the complaint petition filed by the petitioner. 7. In view of such position, I am of the opinion that both the courts below have committed error while dismissing the complaint petition filed by the petitioner. 7. It is vehemently urged by Mr.Mishra, learned counsel appearing for the opposite parties that in the garb of second revision, which is barred under Section 379(3), Cr.P.C., application under Section 482, Cr.P.C. is not maintainable and the judgments which have been relied upon by him, has been thoroughly examined. In Balbir Singh (supra) the apex Court in paragraph 16 has held as follows : “The proper course for the High Court, even it entitled to interfere with the concurrent findings of the Courts below in exercise of its power under Section 482, Cr.P.C., should have been to sustain the order of maintenance and direct the respondent to seek an appropriate declaration in the Civil Court, after a full fledged trial, that the child was not born to him and as such he is not legally liable to maintain it. Proceedings under Section 125, Cr.P.C. it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner. The High Court was, therefore, clearly in error in quashing the order of maintenance in favour of the child.” The aforesaid judgment is not applicable in the present context as it is arising out of a maintenance case under Section 125, Cr.P.C. and more so, it is not stated that High Court is not entitled to interfere with the concurrent findings of the courts below in exercise of the powers under Section 482, Cr.P.C., rather the contention is otherwise. 8. So far as the reliance placed on Narayan Meher (supra) is concerned, this Court in para 8 has held as follows: “There is absolutely no bar for entertaining a petition under Section 482, Cr.P.C. at the instance of a person who has lost before the Trial Court as well as in revision before the Sessions Court. Inherent power of the High Court under Section 482, Cr.P.C. is extraordinary in nature and not circumscribed by any other provision of the Code. Such power can be exercised to give effect to any order under the Code, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice. Inherent power of the High Court under Section 482, Cr.P.C. is extraordinary in nature and not circumscribed by any other provision of the Code. Such power can be exercised to give effect to any order under the Code, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice. The power however is to be exercised sparingly. Re-appreciation of evidence so as to reach a different conclusion on a question of fact and to upset the concurrent findings of the Courts below, which are otherwise reasonable and based on assessment of evidence is not permissible. It is only where the findings are based on no evidence or suffer from non-consideration of material and relevant evidence that the High Court can interfere with such findings in exercise of inherent power in order to secure the ends of justice.” On perusal of the aforesaid judgment, it is apparently clear that the said judgment is not applicable to the facts and circumstances of the case since in the said case the question of maintainability taking into account Section 397(3), Cr.P.C. has not been dealt with. Therefore, both the judgments cited by the learned counsel for the opposite parties are distinguishable on the own facts and circumstances of the case. 9. With regard to the applicability of the judgments relied upon by the learned counsel for the petitioner so far as the question of maintainability is concerned, it is made clear that this Court can exercise its inherent power under Section 482, Cr.P.C. in exceptional circumstances after dismissal of the revision petition by the Court of Session and the bar under Section 397(3), Cr.P.C. can be lifted to prevent abuse of the process of court and to meet ends of justice. On the basis of the ratio decided, I am of the considered view that despite dismissal of the complaint petition by the learned S.D.J.M., Nilgiri and confirmation thereof in the revision by the Court of Session, the bar imposed under Section 397(3) Cr.P.C. would not be applicable. The power under Section 482, Cr.P.C. being inherent one though has to be exercised sparingly and cautiously, the same has to be exercised to secure ends of justice. 10. The power under Section 482, Cr.P.C. being inherent one though has to be exercised sparingly and cautiously, the same has to be exercised to secure ends of justice. 10. Applying the judgments referred to supra and considering the facts and circumstances of the case, I am of the considered view that the application filed under Section 482, Cr.P.C. is maintainable in order to meet the ends of justice. The petitioner though has alleged commission of cognizable offence under various provisions, learned court below should have prima facie considered the same diligently, but in the present case without considering the same, the court below has rejected the protest petition, which is absolutely misconceived one and therefore, to secure ends of justice, on the basis of the complaint lodged, the court below has to give opportunity to the complainant to establish the charges levelled against the opposite parties. 11. In view of the foregoing discussions, this Court has no hesitation to set aside the impugned orders. Accordingly, the impugned orders dated 28.7.2004 passed by the learned S.D.J.M., Nilgiri in G.R.Case No. 194 of 2002 under Annexure-3 and dated 12.10.2004 passed by the learned Sessions Judge, Balasore on 12.10.2004 in Crl.Revision Petition No. 101 of 2004 under Annexure-4, are set aside and the matter is remitted back to the learned S.D.J.M., Nilgiri to proceed with the G.R.Case No. 194 of 2002 afresh. Since the G.R.Case is of the year 2002, the learned S.D.J.M., Nilgiri is directed to dispose of the same within a period of six months hence. 12. With the aforesaid observation and direction, the CRLMC is disposed of. CRLMC disposed of.