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2014 DIGILAW 368 (ORI)

Sk. Abdul Khalique v. State of Orissa

2014-06-19

I.MAHANTY

body2014
JUDGMENT INDRAJIT MAHANTY, J. 1. The present application under Section 482 Cr. P.C. has been filed by the petitioner-Sk. Abdul Khalique seeking to challenge an order dated 29.02.2000 passed by the learned J.M.F.C. Balasore refusing to take cognizance and dismissing a complaint case filed by the petitioner in I.C.C. Case No. 428 of 1998 as well as the affirmation of the said order by the learned District & Sessions Judge, Balasore in Criminal Revision No. 31 of 2002, who by order dated 25.11.2002 confirmed the order passed by the learned J.M.F.C. Balasore and rejected the revision. 2. The claim raised by the present petitioner is that he had instituted a complaint case before the S.D.J.M. Balasore which was registered as I.C.C. Case No. 428 of 1998 seeking prosecution of one Sukanta Kumar Dey (opposite party No.2) for commission of offences under Sections 441 & 448 I.P.C. The petitioner’s claim is that, he is the absolute owner of the property appertaining to Plot No. 349, Khata No.71 in mouza Bhaskarganj having a shop room over the same and that opposite party No.2 had been inducted as a monthly tenant in respect of the said shop room since 01.05.1997 on monthly rent of Rs.825/- for a period of one year. The complainant-petitioner stated that the accused did not pay the monthly rent as agreed and became a defaulter and thus made him liable for eviction. It is further submitted that the complainant issued a termination notice on 01.09.1998 through registered post and since the accused did not vacate the shop room in question, the accused become a trespasser in respect of the shop room. Apart from the above, it appears that due to various disputes between the complainant-petitioner and his brother as well as the state, certain civil suits have been filed by the petitioner against the State which have been narrated in the petition but are not of any material consequences for consideration in the present case. 3. Mr. Mishra, the learned counsel appearing for the petitioner asserts that the learned J.M.F.C. Balsore as well as the learned District & Sessions Judge, Balasore have committed errors of law in making a robin inquiry to find out the truth without limiting itself to the nature of the allegation contained in the complaint. 4. 3. Mr. Mishra, the learned counsel appearing for the petitioner asserts that the learned J.M.F.C. Balsore as well as the learned District & Sessions Judge, Balasore have committed errors of law in making a robin inquiry to find out the truth without limiting itself to the nature of the allegation contained in the complaint. 4. The learned counsel for the State, on the other hand, has raised preliminary objection to the maintainability of the present petition under Section 482 Cr. P.C. inter alia, on the ground that the petitioner had filed a revision against the order of the learned J.M.F.C. Balasore before the learned District & Sessions Judge, Balasore and, therefore, the present petition though guise under Section 482 Cr. P.C. is essentially an attempt at a second revision which is specifically barred under Section 397(3) of the Cr. P.C. 5. Mr. Mishra, learned counsel appearing for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court in the case of Sakuntala Devi & Others vs. Chamru Mahto & Another, (2009) 42 OCR (SC) 917 in which the Hon’ble the Chief Justice Altamas Kabir presiding over the Bench, came to hold that ‘it is well settled that the object of introducing of Sub-section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge should not be completely closed and in special cases the bar under Section 397(3) could be lifted. In other wards, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under Sub-section(3) of Section 397 of the Code and was capable of being invoked in appropriate cases.” 6. It would also be apt to refer a judgment of this Court in the case of Basudev Bhoi vs. Bipadabhanjan Puhan and another, 1996 (II) OLR 669 rendered by Hon’ble Justice Dipak Mishra (as his Lordship the then) was wherein this Court has dealt with the issue of maintainability of a petition under Section 482 Cr. P.C. after dismissal of a criminal revision by the Additional Sessions Judge. P.C. after dismissal of a criminal revision by the Additional Sessions Judge. This Court after discussing various judgments of the Hon’ble Supreme Court and analyzing the history and development of the scope of inherent power of the High Court came to conclude as follows: “Thus, it becomes crystal clear that there is a fine but real distinction between the revisional jurisdiction and inherent power. In fact, the apex Court in the case of Ganesh Narayan Hegde (supra) has carved out a synthesis by taking note of Section 399 of the Code and the concept of inherent powers. It may be stated here that the power under Section 482 was directly in issue in the case of Ganesh Narayan Hegde. Taking into consideration the distinctive view of operation of the powers and the ratio of the decisions it can be safely concluded that an application under Section 482 of the Code is maintainable though a person has availed the remedy of revision under Section 399 of the Code. But the parameters of Section 482 have always to be kept in view.” 7. Keeping the dicta of the Hon’ble Supreme Court as well as the High Court as noted hereinabove, this Court proceeds to peruse the impugned orders herein. The learned J.M.F.C. Balasore found that for the self same cause of action, a G.R. Case No. 1720 of 1998 had been instituted, investigated and final form as mistake of fact had been submitted. Therefore, taking such materials into consideration, it was found that entertaining such a complaint petition would not sub-serve the cause of justice. Apart from the above, on factual basis, the Magistrate found that the shop room in question was situated on Government Plot which had been taken over by the Municipality and was in possession of one Rajashree Dey, who being the occupant of the shop room was paying rent to the Municipality and not a party to the present proceeding. Apart from the above, the learned Magistrate also refer to a civil suit between the parties pending before the learned Civil Judge (S.D), Balasore and Misc. Case No. 169 of 1997, where orders of status quo had been passed and in such circumstances refused to take cognizance of the complaint. The learned District and Sessions Judge, Balasore in the impugned revision considered the findings arrived at by the learned J.M.F.C. Balasore and affirmed the said order. 8. Case No. 169 of 1997, where orders of status quo had been passed and in such circumstances refused to take cognizance of the complaint. The learned District and Sessions Judge, Balasore in the impugned revision considered the findings arrived at by the learned J.M.F.C. Balasore and affirmed the said order. 8. In view of the aforesaid conclusion arrived at on the question of law as noted hereinabove, I am of the considered view that while a petition under Section 482 Cr. P.C. is maintainable, yet, as held by the Hon’ble Supreme Court in the case of Sakuntala Devi (Supra) while there is no complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 Cr. P.C. yet the said power is capable of being exercised only in special cases where the Court is satisfied that for the ends of justice and/or to prevent injustice and to achieve the object of 482 its intervention is called for. In the present fact situation of the case, I am of the considered view that the present case is not such a case, where power of this Court under Section 482 ought to be exercised in favour of the petitioner and on the contrary, this Court is of the view that entertaining such a petition at the behest of a party, who had already filed a G.R. Case which had come to be rejected on mistake of fact, would itself amount to an abuse of the process of the Court. Consequently, the petition being frivolous in nature merits no further consideration and stands dismissed.