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2013 DIGILAW 407 (ORI)

Basanti Mallick v. Narayan Chandra Mallick

2013-09-24

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. Sarangi, J. - In CRLMC No. 7227 of 2000, the petitioner, being the complainant, assails the order dated 12.10.1999 passed by the learned SDJM, Jagatsinghpur in ICC No. 22 of 1999 refusing to take cognizance against the opposite party under Section 354, IPC though the initial statement and the evidence under Section 202, Cr.P.C. made out commission of offence under the said provision. In CRMC No. 5970 of 2001, the petitioner assails the order dated 12.4.2001 passed by the learned SDJM, Jagatsinghpur in ICC No. 22 of 1999 on the ground that the learned Magistrate has committed irregularities by dismissing the complaint and discharging the accused under Section 256(3), Cr.P.C. for the offence under Section 379, IPC, which comes under warrant procedure. 2. Since both the matters arise out of one case, for just and proper adjudication, they were heard together and are disposed of by this common order. 3. The fact leading to filing of the complaint case on 14.2.1999 bearing ICC No. 22 of 1999 before the learned SDJM, Jagatsinghpur is that the accused-opposite party married to Susama Mallick, the elder sister of the complainant 19 years back. He again married to the middle sister of the complainant, namely, Bisaya Mallick without the consent of Susama Mallick and her parents and kept in his quarter and forcibly led a conjugal life with her. Out of the wed-lock through his first wife, three sons and one daughter were born whereas through the second wife two sons and two daughters were born. After the death of Chakradhar Mallick, the father of the complainant, his second wife, namely Sundari Bewa resided in the quarter of the accused-opp.party along with her. Through the first wife, the said Chakradhar had a son, namely, Gopabandhu Mallick, but due to the attitude of her step mother, he resides separately from the house. With a view to keep the complainant as third wife, the accused-opposite party sometimes misbehaves her and tried to keep her as his mistress, but the petitioner protested to such proposal for which on many occasion the accused assaulted her. However, nine months prior to filing of the complaint, the complainant got married to one Sarat Mallcick of Harisinghpur and has been leading a happy conjugal life with him. However, nine months prior to filing of the complaint, the complainant got married to one Sarat Mallcick of Harisinghpur and has been leading a happy conjugal life with him. During her marriage, out of love and affection, her mother-in-law presented her gold chain weighing one and half tola and two nos. of golden Sankhas, 4 nos. of Bahuty and 4 nos. of finger rings, which the petitioner was wearing daily, whose total cost would be around Rs.20,000/-. After staying for two months in her husband’s place, the complainant came to the house of the accused-opposite party for Puani as a custom and tradition and remained in the house during Kumar Purnima. 4. On 23.10.1998 at 4 P.M. the accused-opposite party took the complainant to his bed room and forcibly and on false pretext forcibly took away the wearing ornaments forcibly and forced her to have sexual intercourse with him or else he would never return her golden ornaments and also asked her to keep one of his sons as per her wish as her adopted son. But the complainant did not agree with such heinous proposal, consequently, she was assaulted mercilessly. Thereafter, the complainant intimated her husband and her husband came in an auto rickshaw and took her to his house. Being shocked, the complainant lodged an F.I.R. about such occurrence at Kanakpur out-post. As the accused-opposite party was then working as an A.S.I. in the said out-post, no step was taken on the said F.I.R. Due to inaction, the complainant approached the Superintendent of Police, Jagatsinghpur, who on receipt of such information, called the accused-opposite who assured to return back the golden ornaments to the complainant and not to commit similar type of offence in future. 5. Again on 10.2.1999 the Superintendent of Police, Jagatsinghpur directed the accused-opposite party to return the gold ornaments and to settle the dispute amicably. But after deparature from the office of the Superintendent of Police, Jagatsinghpur, near the Bus stop at Sanabazar, the accused-opposite party abused the complainant-petitioner in filthy language. Again the complainant-petitioner went to the Superintendent of Police, Jagatsinghpur on 1.2.1999 and 12.2.1999 and narrated the conduct of the accused-opposite party, but the Superintendent of Police, Jagatsinghpur advised the complainant to take shelter in the proper court of law. 6. Again the complainant-petitioner went to the Superintendent of Police, Jagatsinghpur on 1.2.1999 and 12.2.1999 and narrated the conduct of the accused-opposite party, but the Superintendent of Police, Jagatsinghpur advised the complainant to take shelter in the proper court of law. 6. The complainant lodged the complainant before the learned SDJM, Jagatsinghpur, who recorded the initial statement and enquired into the case under Section 202, Cr.P.C. The complainant co-operated with the enquiry and produced the witnesses and examined them, who supported the case of the complainant, which made out a case under Sections 294, 323, 379, 354, IPC. However, the learned SDJM, Jagatsinghpur by order dated 12.10.1999 without applying judicial mind took cognizance of the offence under Sections 294, 323 and 379, IPC, but did not take cognizance of the offence under Section 354, IPC, which is under challenge in Crl.Misc. Case No. 7227 of 2000. 7. After taking cognizance under Sections 294, 323 and 379, IPC, the complaint case was transferred to the court of learned JMFC, Jagatsinghpur for commencement of trial. When the matter was sub judice and posted for evidence of the accused-opposite party who is a police personnel, with the help of his henchmen threatened the complainant-petitioner along with her witnesses not to depose in the case at the risk of her life. Such fact was intimated to the higher police officers and an application for cancellation of bail was filed before this Court in CRMC No.7715 of 2000 on the ground of mis-utilization of liberty granted to him. Pursuant to the notice, the accused-opposite party appeared. The matter was posted for hearing on 12.4.2001 and on that date the complainant was present and filed hazira , but due to her ailment she went home intimating her counsel to take step and to intimate her the next date. But unfortunately, her counsel could not be watchful and take initiative in the case, as a result of which the trial court dismissed the complaint and discharged the accused-opposite party under Section 256(3), Cr.P.C. and which is challenged in CRLMC No. 5970 of 2001. 8. But unfortunately, her counsel could not be watchful and take initiative in the case, as a result of which the trial court dismissed the complaint and discharged the accused-opposite party under Section 256(3), Cr.P.C. and which is challenged in CRLMC No. 5970 of 2001. 8. Mr.R.N.Biswal, learned counsel appearing for the complainant-petitioner urged that though on the basis of the initial statement made by the complainant and the enquiry conducted under Section 202, Cr.P.C., a prima facie case is made out under Section 354, IPC, but the learned Magistrate has committed error in not taking cognizance of the said offence, thereby he has committed illegalities and irregularities while taking cognizance by order dated 121.10.1999. He further submits that the discharge of the accused under Section 256(2), Cr.P.C. is thoroughly misconceived one as the offence alleged under Section 379, IPC comes under warrant case and the procedure envisaged under Chapter-XIX has to be followed and instead of doing so, learned Magistrate following the procedure as envisaged under Chapter XX, which is meant for trial for summons cases, has discharged the accused under Section 256(2), Cr.P.C., which is an error apparent on the face of the record and therefore, seeks for interference by this Court. 9. Mr.Mallick, learned counsel appearing for the accused-opposite party vehemently urged that while taking cognizance even though the offence has been alleged to have been committed under Sections 294, 323, 354 and 379, IPC, on the basis of the materials available on record, the learned Magistrate took cognizance for the offence under Sections 294, 323 and 379, IPC. Apart from the same, he urged that non-appearance of the complainant himself/ herself is a valid ground for discharge of the accused in case of warrant procedure in a complaint case involving non-compoundable offences and more so, the discharge of the accused has been made before framing of charge, thereby the learned Magistrate has not committed any illegality by discharging the accused due to the non-appearance of the complainant. Apart from the same, it is urged that due to availability of alternative remedy by filing revision, this Court cannot invoke the jurisdiction under Section 482, Cr.P.C. Therefore, the application is liable to be dismissed. 10. Apart from the same, it is urged that due to availability of alternative remedy by filing revision, this Court cannot invoke the jurisdiction under Section 482, Cr.P.C. Therefore, the application is liable to be dismissed. 10. Mr.Biswal, learned counsel appearing for the complainant-petitioner in order to substantiate the contention that the learned Magistrate has committed error in not taking cognizance under section 354, IPC, relies upon the initial statement of the complainant, where she herself has stated specifically that she has been dragged to the bed room and she was undressed and was compelled to have sexual relationship with him. The said fact has been corroborated by other witnesses examined under Section 202, Cr.P.C. Therefore, the learned Magistrate should not have excluded Section 354, IPC . 11. Mr. Mallcik states that once the accused has been discharged due to non-appearance of the complainant, reconsideration for taking cognizance under Section 354, IPC does not arise at this stage. 12. On consideration of the contentions raised by the parties and on perusing the records available and examining the initial statement as well as evidence of the witnesses recorded under Section 202, Cr.P.C. it is found that prima facie case under Section 354, IPC is made out. Therefore, the learned Magistrate by excluding the offence under Section 354, IPC has committed gross error apparent on the face of the record. In view of such position, I hold that non-taking of cognizance under Section 354, IPC by the learned Magistrate amounts to non-application of mind inasmuch as the learned Magistrate should have taken cognizance under Sections 294, 323, 354 and 379, IPC. 13. In view of the aforesaid facts and circumstances, the impugned order dated 12.10.1999 passed by the learned SDJM, Jagatsinghpur in ICC No. 22 of 1999 is set aside and CRLMC No. 7227 of 2000 is hereby allowed. 14. So far as the contention raised with regard to discharge of the accused persons by order dated 122.4.2001 under Section 256(3), Cr.P.C. is concerned, it is found that there is sufficient force in the argument of Mr.Biswal, learned counsel for the petitioner. 14. So far as the contention raised with regard to discharge of the accused persons by order dated 122.4.2001 under Section 256(3), Cr.P.C. is concerned, it is found that there is sufficient force in the argument of Mr.Biswal, learned counsel for the petitioner. When the complainant has engaged a lawyer to conduct the case for and on behalf of her and on the date of the order, though she was present, but due to her illness she left the court premises after giving necessary instruction to her lawyer and the learned counsel could not take steps, in such circumstances by discharging the accused under Section 256(3), Cr.P.C. without affording any opportunity the learned Magistrate committed illegalities and irregularities. Further, Section 379, Cr.P.C. being a warrant case while discharging the accused, the procedure envisaged in Chapter XIX of Cr.P.C. should have been followed. But discharging the accused under Section 256(3), Cr.P.C. by following the procedure under Chapter XX the learned Magistrate has committed irregularity apparent on the face of the record. 15. Learned counsel for the opposite party in order to substantiate his contention relied upon the judgments in Nabaghan Malla and others v. Brundaban Malla, 1989 Cri.L.J., 381, and State of M.P. v. Punamchand and others, 1987 Cri. L.J 1232. Relying upon the judgment in Jagannath Choudhary and others v. Ramayan Singh and another, AIR 2002 SC 2229 he urged that the Magistrate is competent to entertain second complaint on the same facts from the same complainant after dismissing the complaint on the ground of non-appearance. 16. The decision cited in Jagannath Choudhary(supra) is totally different on both fact and law since it was a case of acquittal and the High Court interfered with the order of acquittal and directed the trial court for fresh hearing by giving proper mind to the evidence on record. But in the case in hand, the fact is totally different since due to non-appearance of the complainant the accused has been discharged, which is not akin to the fact and law applicable in the present context. As such, the contention raised by the opposite party is not acceptable. But in the case in hand, the fact is totally different since due to non-appearance of the complainant the accused has been discharged, which is not akin to the fact and law applicable in the present context. As such, the contention raised by the opposite party is not acceptable. In the present case, there is only procedural irregularity in the sense that on the date fixed neither the complainant nor her lawyer remained present, therefore, the court below discharged the accused person without following due procedure of law available to be considered in a warrant case and the contentions raised that due to availability of provisions contained in Section 378(4) Cr.P.C., the complainant should have preferred appeal instead of filing an application under Section 482, Cr.P.C. To this contention of the opposite party, it is stated that when an error committed by the court below is apparent on the face of the record, the same can be rectified and corrected in the ends of justice by invoking the power under Section 482, Cr.P.C. In the present case, learned J.M.F.C. without considering the materials available on record and without looking into the initial statement as well as the statement made under Section 202, Cr.P.C. excluded to take cognizance under Section 354, IPC without assigning any reasons therefor. Apart from the same, due to non-appearance of the complainant on 12.4.2001, the learned Magistrate dismissed the complaint petition and discharged the accused under Section 256(2) of the Cr.P.C. though the offence alleged involves a warrant case and the procedure envisaged under Chapter XIX of the Cr.P.C. is applicable. In both the counts, learned Magistrate having committed an error, by invoking the power under Section 482, Cr.P.C. this Court rectifies the same in the ends of justice. 17. In view of the aforesaid facts and circumstances, the impugned orders dated 12.10.1999 and 12.4.2001 passed in ICC Case No.22 of 1999 are quashed. Learned JMFC, Jagatsinghpur is directed to take up the proceeding from the stage of taking cognizance and dispose of the complaint case as expeditiously as possible. Parties are directed to co-operate in early disposal of the matter. 18. With the aforesaid observation and direction, both the CRMC No.5970 of 2001 and CRLMC No. 7227 of 2000 are allowed. Applications allowed.