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2014 DIGILAW 416 (ORI)

Manoj Kumar Tiwari v. Santosh Kumar Parida

2014-07-15

I.MAHANTY

body2014
Judgment I. Mahanty, J. The present application under Section 482 Cr.P.C. has been filed by the petitioner (accused-Manoj Kumar Tiwari, resident of Khariar, Dist: Nuapada) seeking to challenge an order dated 15.07.2008 passed in 1.C.C. Case No.83 of 2008, wherein the learned J.M.F.C.(R), Cuttack recorded his satisfaction that a prima facie case under Sections 323, 294, 394, 379 & 506 I.P.C. is made out against the accused-Manoj Kumar Tiwari (petitioner herein) and, accordingly, took cognizance of such offences and directed issue of process. 2. Mr. G.K.Nayak, learned counsel for the petitioner submitted that the petitioner is a native of Khariar in the district of Nuapada, where he was working as a Contractor under the opposite party, who was then working as Deputy Project Manager (Contract Engineer), O.C.C. Ltd., Lower India Spillway Project, Tikabali, PS: Khariar, Dist: Nuapada. It was submitted that the petitioner himself had filed 1.C.C. Case No.4 of 2008 before the J.M.F.C., Khariar and cognizance had been taken against the opposite party under Section 294/506 I.P.C. vide order dated 13.03.2008. Being aggrieved by the same, the opposite party had filed a criminal Revision i.e. CRLREV No.550 of 2008 before this Court and by order dated 29.04.2008, this Court was pleased to stay the N.B.W. issued for arrest of the opposite party. 3. It was submitted by the learned counsel for the petitioner that being angered by initiation of 1.C.C. case by the petitioner against the opposite party, the opposite party came to Cuttack and filed an F.I.R. on 19.02.2007 against the petitioner and the police after investigation submitted final form under Section 341/294 I.P.C. against the petitioner. In the aforesaid background, the opposite party-complainant filed the present complaint, namely, 1.C.C. Case No.83 of 2008 before the J.M.F.C.(R), Cuttack in order to drag the petitioner from Khariar to Cuttack. The petitioner being aggrieved by the said order, filed Criminal Revision No.1213 of 2008 wherein notice issued to the opposite party was made sufficient by affixture and thereafter the said revision was converted to CRLMC No.2461 of 2009. 4. The learned counsel for the petitioner highlighted the fact that the entire story made out in the complaint is a fiction of imagination and the same would be proved from Annexure-4 which is a certificate obtained from the R.T.O., Raipur Region indicating that there is no such vehicle registered there in Chhattisgarh bearing the number as suggested by the informant. The learned counsel for the petitioner highlighted the fact that the entire story made out in the complaint is a fiction of imagination and the same would be proved from Annexure-4 which is a certificate obtained from the R.T.O., Raipur Region indicating that there is no such vehicle registered there in Chhattisgarh bearing the number as suggested by the informant. Apart from the above, the learned counsel for the petitioner (accused) submitted that the story that the informant was travelling between Bhubaneswar and Cuttack on the alleged date of occurrence is also purely false and he produced in the proceeding certain attendance sheets and remittance rolls to indicate that the opposite party-complainant could not have been present at Cuttack on the date as alleged and that the complaint filed against the present petitioner was pure and simple concocted. Further submission was advanced by the petitioner that under Section 202 Cr.P.C., the Magistrate was not competent to exercise jurisdiction and was mandatorily required to postpone the issue of process against the accused since the accused did not reside within the jurisdiction of the said court. Apart from the above, in view of the nature of the allegation made, it was asserted that the trial court i.e. the J.M.F.C.(R), Cuttack ought not to have taken cognizance in the complaint based on the purported evidence of the complainant and this was a fit case where the learned J.M.F.C. ought to have directed investigation into the allegation by the police. 5. After hearing the learned counsel for the petitioner, at this juncture, this Court is not required to go into the factual aspects of this case and suffice it is to note that under Section 202 Cr.P.C., when a Magistrate receives a complaint of an offence of which he is authorised to take cognizance, “shall, in the case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by police officer” 6. In the case at hand, this Court is of the considered view that the Magistrate has lost sight of the fact that the alleged accused i.e. the petitioner herein was not residing within his jurisdiction but at a place beyond the area over which he exercises jurisdiction and, accordingly, it would have been appropriate for him to postpone the issue of process against the accused and direct investigation of the matter to the police merely placing reliance on the evidence of the complainant and one other witnesses. Accordingly, the impugned order dated 15.07.2008 passed by the learned J.M.F.C.(R), Cuttack in C.C. Case No.83 of 2008 taking cognizance and directing issue of process against the petitioner is quashed and the Magistrate is directed to postpone issue of process and direct the police to investigate into the complaint. It is made clear that in course of such investigation, it shall be open for the petitioner (accused) to bring to the notice of the investigating agency any information he may have in his possession which may be relevant for the purposes of such investigation. 6. With the aforesaid observations and directions, the CRLMC is allowed.