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2017 DIGILAW 25 (ORI)

Pradip Kumar Saha v. State of Orissa

2017-01-03

S.K.SAHOO

body2017
JUDGMENT : S.K. Sahoo, J. The petitioner in this application under section 482 Cr.P.C. has challenged the impugned order dated 29.12.2011 passed by the learned S.D.J.M., Sambalpur in G.R. Case No. 1274 of 2011 in taking cognizance of the offences punishable under sections 294/506 of the Indian Penal Code and issuance of process against him. The said case arises out of Burla P.S. Case No. 123 of 2011. 2. One Animesh Nandan Sahay (opp. party no.2), Chairman -cum-Managing Director, Mahanadi Coal fields Limited, Burla, Sambalpur lodged the F.I.R. before the Inspector in charge, Burla police station, Burla on 12.07.2011 stating therein that on 30.06.2011 at about 4.30 p.m. while he was sitting in his office at MCL Headquarters, Burla, he received a telephone call in his landline phone bearing no. 0663-2542855 from one mobile phone no. 9432122136 and the caller introduced himself as M.L.A. Mr. Sujit Basu, Salt Lake Area from Trinamool Congress. The caller asked the informant with strong words to retain the petitioner who was working as Senior Manager (Excavation) at M.C.L. Office, Kolkata on temporary basis and then the caller started abusing the informant and also threatened him with dire consequences. The caller further told the informant that he would see and finish him during later’s visit to Kolkata if the petitioner is disturbed from Kolkata. It is further stated in the F.I.R. that subsequently the informant talked with Mr. Sujit Basu, M.L.A. who clarified that he had never talked with the informant and gave his mobile phone number which was 9833053347. The informant during conversation with Mr. Sujit Basu, M.L.A. recognized that it was not the voice of the same person who had talked with him on 30.06.2011. He gathered information that the mobile phone number 9432122136 which was used in threatening him belonged to one Subrat Kumar Saha. It is further mentioned in the first information report that the petitioner impersonated himself as M.L.A. of West Bengal and threatened the informant. 3. On the basis of such F.I.R., Burla P.S. Case No. 123 of 2011 was registered on 12.07.2011 under sections 294/506 of the Indian Penal Code against the petitioner. It is further mentioned in the first information report that the petitioner impersonated himself as M.L.A. of West Bengal and threatened the informant. 3. On the basis of such F.I.R., Burla P.S. Case No. 123 of 2011 was registered on 12.07.2011 under sections 294/506 of the Indian Penal Code against the petitioner. During course of investigation, the informant was examined and the Investigating Officer visited the spot, seized the office telephone cordless handset on production by the informant and left it in the zima of the informant and also seized certain documents and prepared seizure lists and after completion of investigation, submitted charge sheet on 24.12.2011 under sections 294/506 of the Indian Penal Code. On perusal of the chargesheet, the learned S.D.J.M., Sambalpur found prima facie evidence against the petitioner regarding commission of offences under sections 294 and 506 of the Indian Penal Code and accordingly passed the impugned order. 4. Learned counsel for the petitioner Mr. Satyabrata Pradhan while challenging the impugned order dated 29.12.2011 contended that the investigation has been conducted in a perfunctory manner and the basic ingredients of the offences under sections 294/506 of the Indian Penal Code are not attracted. He further contended that there is inordinate delay in lodging the first information report and the material witnesses have not been examined and the call details from the concerned mobile phone or the landline phone have not been seized during course of investigation and it has not been established as to how the owner of the mobile phone from which threatening words came to the informant is in any way related to the petitioner. It is further contended that merely on assumption and surmise, the F.I.R. was lodged and therefore, the submission of charge sheet as well as taking of cognizance is not sustainable in the eye of law. Mr. Dillip Kumar Mishra, learned Addl. Govt. Advocate on the other hand submitted that the statement of the informant as noted in the case diary reveals prima facie case and the call details of the mobile phone number 9432122136 is available in the case diary which indicates that there was call from it to the landline phone number 06632542855 on 30.06.2011 and therefore, there is corroborating material to the averments made in the F.I.R. and as such it is not a fit case to quash the order of taking cognizance. Learned counsel for the informant (opp. Learned counsel for the informant (opp. party no.2) on the other hand contended that the submission made by the learned counsel for the petitioner can be adjudicated at the time of trial and it is not the proper stage to assess the evidence and therefore, the inherent power should not be exercised to stifle the legitimate prosecution as there is no infirmity in the order of taking cognizance and therefore, the CRLMC application should be dismissed. 5. Considering the submissions made by the learned counsels for the respective parties and on perusal of the first information report, it is apparent that the incident in question is stated to have taken place on 30.06.2011 at about 4.30 p.m. whereas the F.I.R. was lodged on 12.07.2011 i.e. after a gap of twelve days. In the first information report, though it is mentioned that in the landline phone of the informant, the caller abused the informant but the specific words used by the caller have not been mentioned. It is stated that the caller identified himself to be one Mr. Sujit Basu, M.L.A. but subsequently the informant got clarification from Mr. Sujit Basu that he had not made any phone call to the informant to his landline phone and gave his mobile phone number. Admittedly, as per the charge sheet, Sujit Basu is not a witness and his 161 Cr.P.C. statement is also not available on record. Similarly, it is mentioned in the first information report that subsequently it came to the knowledge of the informant that the mobile phone number 9432122136 belonged to one Mr. Subrat Kumar Saha. Learned counsel for the State submitted that Mr. Subrat Kumar Saha is the brother of the petitioner. Admittedly Subrat Kumar Saha is neither an accused in the case nor he is a witness as per the charge sheet. Therefore, the most material witnesses for the prosecution like Sujit Basu and Subrat Kumar Saha have not been examined during course of investigation and they have also not been cited as charge sheet witnesses. Admittedly Subrat Kumar Saha is neither an accused in the case nor he is a witness as per the charge sheet. Therefore, the most material witnesses for the prosecution like Sujit Basu and Subrat Kumar Saha have not been examined during course of investigation and they have also not been cited as charge sheet witnesses. The phone call was made from a mobile phone and though according to the prosecution, the documentary evidence reveals that on 30.06.2011 at about 4.30 p.m., a call came to the landline phone 0663-2542855 from the mobile phone number 9432122136 but in absence of any material that the such mobile phone had got any link with the petitioner or that the petitioner had instructed the owner of that mobile phone to use obscene language at the informant or to criminally intimidate the informant, the ingredients of the offences under sections 294/506 of the Indian Penal Code cannot be attracted against the petitioner particularly when the owner of the mobile phone is neither an accused in the case nor a witness. Admittedly, the voice identification test has not been conducted in the case. Moreover to constitute an offence under section 294 of the Indian Penal Code, the obscene words must be uttered in or near the public place. The abusive words in the case stated to have been uttered over phone and that to when the informant was sitting in his official chamber. The informant has not mentioned the exact words used by the caller in the F.I.R. nor has he stated that such words caused any annoyance to him. In the factual scenario, the intention of the caller cannot be stated to cause annoyance to the informant in or near any public place. 6. In view of the available materials on record, I am of the view that the evidence collected by the prosecution are not of sterling and impeccable quality and therefore, there was no justification on the part of the Investigating Officer to submit charge sheet against the petitioner under sections 294/506 of the Indian Penal Code and it appears that the learned Magistrate has mechanically taken cognizance of the offences. 7. 7. Accordingly, invoking my inherent power under section 482 Cr.P.C. and in order to prevent abuse of the process of the Court and to serve the ends of justice, I am inclined to quash the entire criminal proceeding in G.R. Case No. 1274 of 2011 pending in the Court of learned S.D.J.M., Sambalpur. In the result, CRLMC is allowed.