Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 333 (ORI)

Sarat Chandra Behera v. State of Orissa

2013-08-23

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. Sarangi, J. The petitioners have filed this application under Section 482, Cr.P.C. seeking to quash the order dated 19.04.1996 passed by the learned J.M.F.C.(P), Kujang in G.R. Case No. 438 of 1995 taking cognizance of the offences under Sections 147/148/307/341/427/ 323/336/337/332/ 188/149, IPC and under Section 7 of Criminal Law Amendment Act read with Section 3 of PDP Act. 2. The prosecution case, as revealed from the F.I.R., is that one Surajit Das, O.A.S. Addl. Tahasildar and Executive Magistrate lodged the information that while he was under law and order duty in connection with gherao organized by a section of local fishermen protesting against the lease of Saharpentha Machhadia Sairat to Kalinga Karnadhar Fishermen Primary Cooperative Society. The D.S.P., Paradeep, C.I. Tirtol and O.I.C., Kujang Police Station with staff and women constable were detailed inside the Tahasil office premises. At about 11.30 A.M. a procession of the fishermen around 1500 including 20-30 ladies led by Govind Tarai and Rabi Dalai came in front of Tahasil office shouting slogan against the Tahasildar, Kujang for leasing out the said sairat. Four sections of O.S.A.P. were on cordon duty in front of Tahasil office building and rest of the 4 APR staffs were on two gates to prevent the mob from entering inside the Tahasil office. The mob, which was very much agitated, shouted at the top of their voice and all off a sudden pushed back the staff and both the gates and started to break the cordon to enter into the Tahasil office building. Sincere steps were taken to pacify the mob restraining them from such unlawful activities. As female folk with their kids in arms were in front of the mob apprehending stampede to lady members no police action could be initiated. Breaking the cordon, the mob forcibly went inside verandah of Tahasil office and committed serious mischief by breaking the door and window panes and chairs. As a preventive measure, order under Section 144 Cr.P.C. was promulgated announcing that the mob was unlawful and warned them to disperse. Then the mob started brick batting over the police personnel and staff. One of the miscreants from close vicinity directly threw a heavy stone aiming at the head of S.D.P.O., Paradeep, which hit the roof of right ears as a result he fell down. Then the mob started brick batting over the police personnel and staff. One of the miscreants from close vicinity directly threw a heavy stone aiming at the head of S.D.P.O., Paradeep, which hit the roof of right ears as a result he fell down. They were shouting to kill police and due to such heavy brick batting and pelting of stones, the informant, C.I., Tirtol and other police personnel sustained severe injuries. As there was no chance of escape from death and grievous hurt, the zamadar in charge of OSAP was ordered for tear gassing. Though three grandees and six LR shells were fired but it was not effective due to against wind. The mob continued through brickbats, and finding no other alternative, to escape from the attack by the mob, order for mild lathi charge below the waist was given after due warning as a result of which mob dispersed and nine accused persons, namely, Govinda Tarai, Jasindranath Parida, Narayan Samal, Akshya Samal, Rama Chandra Parida, Tapan Majhi, Biday Rout, Hari Behera and Arjuni Behera were apprehended. Most of them were injured by brick batting. 3. On the basis of the F.I.R. lodged on 08.09.1995, police took up the investigation and G.R. Case No. 438 of 1995 was registered in the court of the learned J.M.F.C., Paradeep, Kujang. On the basis of the investigation, 11 accused persons were arrested and cognizance of offence under Sections 147/148/ 307/341 /427/323 /336 /337 /332/188/149, IPC and under Section 7 of Criminal Law Amendment Act read with Section 3 of PDP Act was taken. The persons who were apprehended moved the court of Sessions Judge, Cuttack in Criminal Misc. On the basis of the investigation, 11 accused persons were arrested and cognizance of offence under Sections 147/148/ 307/341 /427/323 /336 /337 /332/188/149, IPC and under Section 7 of Criminal Law Amendment Act read with Section 3 of PDP Act was taken. The persons who were apprehended moved the court of Sessions Judge, Cuttack in Criminal Misc. Case No. 967 of 1995 seeking for grant of bail, which was considered and the learned Sessions Judge observed that the offence in which the petitioners are allegedly involved does not end in capital punishment and the materials collected against the petitioners to implicate them with the offence under Section 307 IPC is not sufficient, as disclosed from the case diary so far prepared by the I.O. and therefore ordered to release all the petitioners on bail of Rs.5000/- cash with one surety each for the like amount to the satisfaction of the learned J.M.F.C., Kujang with the condition that the petitioners after being released on bail shall not leave the court jurisdiction of Kujang without prior permission of the court and enter appearance twice in a month on 15th and 30th before the O.I.C., Kujang till completion of the investigation. 4. After the investigation was over, police submitted charge-sheet against Gobinda Tarai and 18 others for the offence under Sections 147/148/ 307/341 /427/323 /336 /337 /332/188/149, IPC and Section 7 of Criminal Law Amendment Act read with Section 3 of PDP Act, on the basis of which, the learned J.M.F.C., Paradeep, Kujang took cognizance on 19.04.1996 and issued summons to the accused persons already bailed out and N.B.Ws. against the absconding accused persons for their appearance on 22.05.1996. 5. Three out of the 19 persons against whom cognizance was taken, approached this Court by filing Criminal Misc. Case No. 2341 of 1996 with a prayer to quash the order of taking cognizance dated 19.04.1996 in G.R. Case No. 438 of 1995. When the said matter was pending for adjudication, the petitioners made a mention that since their names do not find place in the charge-sheet, the criminal misc. case may kindly be disposed of. Accordingly, this Court by order dated 14.7.2000 dismissed the said criminal misc. case as infructuous on the statement made by the counsel appearing for the petitioners. Subsequently, the petitioners filed Misc. Case No. 2180 of 2002 arising out of Criminal Misc. case may kindly be disposed of. Accordingly, this Court by order dated 14.7.2000 dismissed the said criminal misc. case as infructuous on the statement made by the counsel appearing for the petitioners. Subsequently, the petitioners filed Misc. Case No. 2180 of 2002 arising out of Criminal Misc. Case No. 2341 of 1996 to recall and to modify the order dated 14.7.2000, which was considered and disposed of by this Court vide order dated 8.5.2003 observing that there is no provision in the Cr.P.C. for modification of an order dismissing an application under section 482 Cr.P.C. for which this Court was not inclined to entertain the said application and accordingly rejected Misc. Case No. 2180 of 2002 arising out of Criminal Misc. Case No. 2341 of 1996 filed to recall or to modify the order dated 14.7.2000. 6. It is stated that the petitioners had moved an application for anticipatory bail under Section 438 Cr.P.C. before the learned Sessions Judge. The learned Sessions Judge, in his order dated 18.9.1995 found that no material is available against the petitioners to connect them in the alleged offence. Learned Sessions Judge while considering the anticipatory bail application in Misc. Case No. 1045 of 1995 found that there is absolutely no material on record to implicate them and accordingly passed the order on 18.10.1995. But when the petitioners came to know that they have been shown as absconder in G.R. Case No. 438 of 2005, they immediately applied for certified copy of the order dated 19.04.1996 on 7.6.2002 in which they have been implicated as accused No.17, 18 and 19 and N.B.Ws. have been issued showing them absconder. 7. It is brought to the notice of this Court by the learned counsel appearing for the petitioners that separate application has been filed under section 482 Cr.P.C. for separate cause of action while considering the Misc. Case No. 2180 of 2002, which is the culmination of the present Criminal Misc. Case. have been issued showing them absconder. 7. It is brought to the notice of this Court by the learned counsel appearing for the petitioners that separate application has been filed under section 482 Cr.P.C. for separate cause of action while considering the Misc. Case No. 2180 of 2002, which is the culmination of the present Criminal Misc. Case. The order dated 19.4.1996 taking cognizance passed by the learned J.M.F.C., Kujang in G.R. Case No. 438 of 1995 has been challenged on the ground that the offence alleged is triable by court of Session and the Magistrate has jurisdiction to add or subs-tract the persons as accused persons and the only duty of the Magistrate is to commit the case to the Court of Session after receiving the record from the police for framing of charge and to commence the trial on that score. It is stated that the Magistrate has exceeded his jurisdiction, therefore the order dated 19.4.1996 passed by the learned J.M.F.C.(P) Kujang in G.R. Case No. 438 of 1995 should be quashed. 8. Learned counsel appearing for the petitioners vehemently urged that when the names of the petitioners did not find place either in the F.I.R. or in the charge sheet, the subsequent addition of their names for taking cognizance by the court is absolutely misconceived one and therefore the proceeding initiated as against them should be quashed. 9. Mr. Zafarullah, learned Addl. Standing Counsel states that even after charge sheet was submitted, subsequent facts can also be taken into consideration and on the basis of materials available on record, the Magistrate can implicate the persons and take cognizance by issuing summons. 10. It is the case of the petitioners that their names having not found place in the charge sheet, the earlier Criminal Misc. Case No. 2341 of 1996 was dismissed as infructuous. Subsequently it is found that the Magistrate while taking cognizance implicated their names on considering the materials available on record. It may be noted that, law is well settled that Magistrate is not bound by the police document and records and if subsequent materials would be made available, on that basis the Magistrate has got the jurisdiction to take cognizance. Subsequently it is found that the Magistrate while taking cognizance implicated their names on considering the materials available on record. It may be noted that, law is well settled that Magistrate is not bound by the police document and records and if subsequent materials would be made available, on that basis the Magistrate has got the jurisdiction to take cognizance. In view of such position, if subsequent disclosure indicates that the petitioners were the participants in the incident occurred and they have been implicated as parties and being absconders, N.B.Ws have been issued for their appearance by taking cognizance no fault can be found with such order. In the present case, the Magistrate has not committed any error or illegality so as to invoke the jurisdiction of this Court in exercise of power under Section 482, Cr.P.C. to quash the order of taking cognizance. The action taken by the Magistrate is within the framework of law and as such, the impugned order taking cognizance against the petitioners is wholly and fully justified and needs no interference at this stage. Accordingly, the CRLMC is dismissed. 11. In view of the aforesaid facts and circumstances, I am not inclined to interfere with the order dated 19.4.1996 passed by the learned J.M.F.C., Kujang in G.R. Case No. 438 of 1995 taking cognizance of the offence against the petitioners. Accordingly, the CRLMC is dismissed. 12. Since the G.R. Case is of the year 1995, the learned J.M.F.C. (P), Kujang is directed to commit the case to the Court of Session forthwith, as the offences alleged are triable by Court of Session. On receipt of the same, the learned Sessions Court shall do well to dispose of the same expeditiously.