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2016 DIGILAW 874 (ORI)

Kusha Kumbhar v. Satpathy Chattar

2016-09-26

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. Heard Mr. H. S. Mishra, learned counsel for the petitioners, Mr. Deepak Kumar, learned Additional Standing Counsel for the State. None appears on behalf of opposite party no.1. 2. The petitioners Kusha Kumbhar and Pitambar Gartia have challenged the impugned order dated 12.05.2005 of the learned S.D.J.M., Bargarh passed in I.C.C. Case No.41 of 2005 in taking cognizance of the offences under sections 379/427/34 of the Indian Penal Code and issuing process against the petitioners. 3. Learned counsel for the petitioners Mr. H. S. Mishra contended that the petitioner no.2 Pitambar Gartia has not been named either in the complaint petition or in the initial statement of the complainant recorded under section 200 Cr.P.C. and the allegations against the petitioners are vague and no specific overt act has been attributed against any of the petitioners and therefore, basing on such complaint petition, the learned Magistrate should not have taken cognizance of the offences. 4. Perused the complaint petition, statement of the complainant recorded under section 200 of Cr.P.C. It is apparent that in the complaint petition, the petitioner no.2 Pitambar Gartia has not been named as an accused and it is stated in the complainant petition that petitioner no.1 along with fifteen to sixteen persons came to the spot and committed the crime. In the initial statement, the complainant has also not alleged anything against petitioner no.2 rather stated that on the date of occurrence at about 8.00 p.m. the petitioner no.1 along with forty to fifty persons came to the spot and committed the crime. In the statements recorded under section 202 Cr.P.C., two witnesses namely, Babula Suna and Gandhi Mahananda implicated the petitioner no.2 for the first time in the crime and stated that the petitioners along with many others came to the spot and committed the crime. In case of Neelu Chopra and another Vrs. Bharati reported in (2010) 45 Orissa Criminal Reports (SC) 99, it is held as follows:- “5. In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence………………... Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.” Considering the submissions made by the learned counsel for the petitioners and looking at the averments made in the complaint petition, the statement of the complainant recorded under section 200 Cr.P.C. as well as the statements of the witnesses recorded under section 202 Cr.P.C., I find that the allegations are vague. No specific role has been attributed to any of the petitioners in the commission of the offence and even the petitioner no.2 has not been named either in the complaint petition or in the statement of the complainant recorded under section 200 Cr.P.C. The Magistrate seems to have acted as automation and without application of judicial mind and testing the materials on record with eagle eyes so as to discern the complicity or otherwise of the petitioners has passed the impugned order in a mechanical manner which has resulted in causing serious prejudice to the petitioners. Therefore, I am of the view that allowing such criminal proceeding to continue would be an abuse of process and therefore, in the interest of justice, I am inclined to quash the criminal proceeding in I.C.C. Case No. 41 of 2005 pending in the Court of learned S.D.J.M., Bargarh. Accordingly, the CRLMC application is allowed.