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2016 DIGILAW 645 (ORI)

Bijoy Kumar Khillar v. State of Orissa

2016-08-17

S.K.SAHOO

body2016
JUDGMENT : S.K.SAHOO, J. This is an application under section 482 Cr.P.C. filed by the petitioner Bijoy Kumar Khillar challenging the impugned order dated 24.09.2003 passed by the J.M.F.C., Jajpur Road in G.R. Case No. 295 of 2003 in taking cognizance of offences under section 394 of the Indian Penal Code and section 9-B of the Explosives Act, 1884. None appears on behalf of the petitioner on repeated calls. 2. The prosecution case, in short, is that on 28.05.2003 on receipt of a telephonic message from the Executive Engineer, MESCO, Jajpur Road regarding apprehension of a culprit at his office and that the said culprit entered into the office and snatched away the cash bag from one of the staff and that the culprit was apprehended with total stolen cash, the Officer in charge of Jajpur Road Police Station proceeded to the spot and on reaching at the spot, he received a written report from one Krushna Chandra Lenka, clerk in the Jajpur Road Electric Division Office. In the First Information Report, the informant has stated that on 28.05.2003 at about 12 noon while he was performing his official duty in his office, one person suddenly came to his office and showed him a knife and snatched away the official cash bag which was kept on the table and started running and the informant raised hulla and chased the culprit and with the help of the office staff, the culprit could be apprehended in front of the office and the culprit was trying to kill them by means of a knife but he could not succeed. The culprit also threw two live bombs aiming towards the staff of the office but those bombs did not explode and culprit disclosed his name as Mahendra Kumar Khillar. On receipt of such report, the Officer in charge registered Jajpur Road P.S. Case No. 86 of 2003 on 28.5.2003 under section 394 of the Indian Penal Code and section 9-B of the Explosives Act. He examined the informant, seized the stolen cash, pistol, knife and bombs from the possession of co-accused Mahendra Kumar Khillar and prepared the seizure list. During investigation, the complicity of the petitioner was found out and accordingly, the investigating officer made several attempts to apprehend the petitioner in the probable hide out places but could not succeed. He examined the informant, seized the stolen cash, pistol, knife and bombs from the possession of co-accused Mahendra Kumar Khillar and prepared the seizure list. During investigation, the complicity of the petitioner was found out and accordingly, the investigating officer made several attempts to apprehend the petitioner in the probable hide out places but could not succeed. Ultimately on completion of investigation, charge sheet was submitted against the accused Mahendra Kumar Khillar as well as the petitioner under section 394 of the Indian Penal Code and section 9-B of the Explosives Act on 23.09.2003 showing the petitioner as an absconder. 3. From the petition filed before this Court, it appears that the main ground for challenging the impugned order is that the co-accused Mahendra Kumar Khillar has falsely named the petitioner before police due to previous land dispute between the two families and the other witnesses have also not named the petitioner to be present at the spot and ran away after leaving the scooter in which the accused persons had come to the place of occurrence. 4. Mr. Dillip Kumar Mishra, learned Addl. Government Advocate submitted that in a case of this nature, the requirement of holding the test identification parade to establish the identity of the culprit is there and the petitioner was an absconder during course of investigation for which the T.I. parade could not be conducted and after apprehension of the petitioner, such T.I. parade shall be conducted and there is every chance of identification by the witnesses who have seen one of the accused escaping from the spot leaving the scooter and therefore, it is not a fit case to quash the order of cognizance against the petitioner. 5. Law is well settled that the cognizance is taken of an offence and not of the offenders and process is issued against an offender. The importance of holding of test identification parade during investigation cannot be undermined. Where there is a doubt as to whether the witness had sufficient opportunity and time to remember the particular accused especially when he is a stranger or where there is a doubt regarding the identifying capacity of a witness, the requirement and necessity of T.I. parade is felt more. Where there is a doubt as to whether the witness had sufficient opportunity and time to remember the particular accused especially when he is a stranger or where there is a doubt regarding the identifying capacity of a witness, the requirement and necessity of T.I. parade is felt more. In view of prima facie materials available on record, the ingredients of the offences under section 394 of the Indian Penal Code and section 9-B of the Explosives Act are clearly made out. So far as the issuance of process is concerned, as the witnesses have seen is broad day light that one person ran away from the spot leaving the scooter at the spot in which it is alleged that co-accused Mahendra Kumar Khillar had come to the spot with that person and there is every chance of identification of the absconding accused, I am of the view that the investigating officer was quite justified in submitting charge sheet against the petitioner and there was no illegality on the part of the Magistrate to take cognizance of the offences and to issue process against the petitioner. Accordingly, I find no fault in the impugned order passed by the learned J.M.F.C., Jajpur Road and therefore, petition under section 482 Cr.P.C. being devoid on merit stands dismissed.