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2013 DIGILAW 406 (ORI)

Susanta Kumar Samantray v. State of Orissa

2013-09-24

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. Sarangi, J. - The petitioner assails the order dated 8.6.2000 passed by the learned J.M.F.C., Kantabanjhi in G.R. Case No. 37 of 1997 taking cognizance of offence under Section 304, part-II/34, IPC against him. 2. The facts as revealed from the F.I.R. are that on the date of occurrence the informant’s son Thabir Majhi was taking some logs along with some of his co-villagers to sell at Kantabanjhi. It is alleged that the Forest Ranger and the Forester along with Forest Guards seized the logs and arrested them. It was further alleged that they also killed Thabir Majhi during investigation. On the basis of the F.I.R., Police registered Tureikela P.S. Case No. 9 of 1997 under Section 302/34, IPC and the O.I.C., Tureikela police station took up investigation. During investigation he arrested Forester, Santosh Kumar Bhoi and Forest Guards, namely, Pravas Chandra Pani, Jaladhar Mahananda, Sribatsa Kuanra and Kapiketan Swain on 3.3.1997 and forwarded them to the court. Ultimately, they were released on bail by the learned District & Sessions Judge, Bolangir on 17.3.1997. 3. In course of investigation, the Circle Inspector, Bangamunda took up the charge of the case and as per the order of the Superintendent of Police, Bolangir, the investigation and charge of this case was handed over to the Inspector, C.I.D., Crime Branch, Orissa, Cuttack. After thorough investigation of the case, as per the order of the Addl. D.G.P., Crime, C.I.D., Orissa Final Report as mistake of fact under Section 302/34, IPC was submitted on 6.11.1998. On receipt of the final report on 24.11.1998, notice was issued to the informant, who appeared through his Advocate and filed a protest petition on 25.1.1999/16.3.1999 and thereafter on hearing him the learned Magistrate accepted the final report and by order dated 19.4.1999 passed orders to destroy the seized articles after four months of the appeal period is over. 4. Against the said order, the informant filed a Criminal Revision bearing No. 6 of 1999 before the court of the learned Addl. 4. Against the said order, the informant filed a Criminal Revision bearing No. 6 of 1999 before the court of the learned Addl. Sessions Judge, Titlagarh who by order dated 5.4.2000 disposed of the same stating that no case is made out under Section 302/34, IPC rather it attracts Section 304, Part-II of the IPC and directed the learned J.M.F.C., Kantabanjhi to consider the application of judicial mind in taking cognizance under section 304, part-II read with section 34 of the IPC against the four Forest Guards mentioned in the order. 5. Mr. D.P. Dhal, learned counsel for the petitioner submits that in impleading the petitioner as accused by order dated 8.6.2000, the learned Magistrate has committed an error which is apparent on the face of the record in view of the fact that neither the F.I.R. nor any other separate document indicates that the present petitioner is in any way connected with the alleged offence. Apart from the same, the taking of cognizance by learned Magistrate under Section 304, part-II read with Section 149 of the IPC is absolutely a misconceived one in view of the fact that he has only acted on the direction of the learned Addl. Sessions Judge and has not applied his mind independently. He further submits that since learned Magistrate has erroneously impleaded the petitioner-Susanta Kumar Samantray in the commission of alleged offence, he seeks to quash the same. 6. It appears that while taking cognizance initially the learned Magistrate has not applied his mind in proper perspective and taken cognizance under Section 302/34, IPC which was challenged before the revisional authority, who in turn directed the learned Magistrate for reconsideration of the offence alleged with further direction for impletion of Range Officer i.e. the present petitioner herein as party and also directed that while taking cognizance the learned Magistrate should apply his judicial mind. But it is found that the learned Magistrate without applying his mind in proper perspective has been persuaded by the order of the learned Addl. Sessions Judge, who has no jurisdiction to suggest under what offence the cognizance can be taken by the Magistrate. Taking cognizance under the offence alleged is the prerogative of the Magistrate himself. The opinion expressed by the learned Addl. Sessions Judge, who has no jurisdiction to suggest under what offence the cognizance can be taken by the Magistrate. Taking cognizance under the offence alleged is the prerogative of the Magistrate himself. The opinion expressed by the learned Addl. Sessions Judge on consideration of the revision application filed by the party being prima facie one he should not have indicated the provisions under which the offence was to be considered, rather he should have remanded the matter back to the court below for reconsideration of the same in accordance with law without making a suggestion to take cognizance under sections 304, part-II read with section 34, IPC. It amounts that the learned Addl. Sessions Judge while rectifying the error committed by the learned court below being influenced by the order suggesting to take cognizance under a specific offence namely, under section 304, part-II and read with section 149 of the IPC since he has no jurisdiction to do so. Taking cognizance is within the full domain of the Magistrate concerned and not the learned Addl. Sessions Judge. In the fitness of things, learned Addl. Sessions Judge should have remanded the matter to the learned Magistrate in the interest of justice for reconsideration by applying the judicial mind. After the record was received by the learned Magistrate, the informant filed a protest petition stating therein that the above forest guard including Susanta Kumar Samantray, the present petitioner being Range Officer was present in the spot and participated in the occurrence and thereby prayer was made to implead the petitioner as accused though the order of Addl. Sessions Judge was completely silent with regard to the involvement of the present petitioner. 7. On perusal of record it is found that the learned Magistrate has committed a gross error that without registering a separate case on the protest petition and without resorting to the provisions contained under Sections 190, 200 and 202 of the Cr.P.C. proceeded with the matter which amounts to non-application of judicial mind. 8. 7. On perusal of record it is found that the learned Magistrate has committed a gross error that without registering a separate case on the protest petition and without resorting to the provisions contained under Sections 190, 200 and 202 of the Cr.P.C. proceeded with the matter which amounts to non-application of judicial mind. 8. Learned counsel for the petitioner relied upon a judgment of this Court in the case of Tapan Kumar Ray v. Susil Kumar Pradhan and another, 1991 (I) OLR 391, wherein it is stated that when on consideration of the entire material on record, no prima facie case is made out, the Court has committed illegality and irregularity thereby this Court should interfere under its jurisdiction under Section 482 Cr.P.C. 9. On consideration of the materials available on record and the contention raised by Mr. Dhal, learned counsel for the petitioner, it appears that though initially the learned Magistrate has not taken cognizance under Section 304, part-II read with Section 149 of the IPC but at the instance of the learned Addl. Sessions Judge took cognizance under Section 304, part-II read with Section 149 of the IPC and such order of cognizance suffers from material irregularity inasmuch as the learned Addl. Sessions Judge has no jurisdiction either to suggest or to take cognizance of any offence. On the other hand, taking cognizance being the prerogative of the Magistrate and within his domain, any suggestion made by the higher forum on consideration of the revision application or in Section 482 Cr.P.C. application cannot be sustainable and as such the impugned order passed by the learned Magistrate at the instance of the learned Addl. Sessons Judge cannot be sustained, so far as it relates to the petitioner and accordingly, the allegation made against the petitioner in the impugned order should be set aside. 10. Apart from the same, the learned Addl. Sessions Judge having reserved the matter at the time of taking cognizance, the same cannot be sustainable inasmuch as there is no application of judicial mind. More so, while entertaining a protest application procedure envisaged under Chapter-XV of the Cr.P.C. has to be followed and non-application of such procedure vitiates the proceeding. In the present case, at the instance of the learned Addl. More so, while entertaining a protest application procedure envisaged under Chapter-XV of the Cr.P.C. has to be followed and non-application of such procedure vitiates the proceeding. In the present case, at the instance of the learned Addl. Sessions Judge, the learned Magistrate has taken cognizance under Section 304, part-II read with Section 149 of the IPC so far as it relates to the petitioner which is thoroughly misconceived one. Accordingly, the impugned order dated 8.6.2000 passed by the learned J.M.F.C., Kantabanjhi in G.R. Case No. 37 of 1997 taking cognizance against the petitioner cannot be sustained and the same is hereby set aside. 11. With the aforesaid observation and direction, the CRLMC is allowed accordingly. CRLMC allowed.