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2017 DIGILAW 385 (ORI)

Kailash Chandra Mohanty v. State of Orissa

2017-04-10

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Heard Mr. Jyoti Prakash Patra, learned Additional Standing Counsel for the State. 2. The petitioners have filed this application under section 482 of Cr.P.C. to set aside the impugned order dated 26.11.2005 passed by the learned J.M.F.C.(R), Cuttack in I.C.C. Case No.52 of 2005 in dismissing the petition filed by the petitioners to set aside the order of taking cognizance on the ground of jurisdiction which was confirmed by the learned Adhoc Additional Sessions Judge, Fast Track Court No.I, Cuttack in Criminal Revision No.86 of 2005 vide impugned judgment and order dated 06.03.2006. 3. The main ground taken by the petitioners to quash the aforesaid impugned order and judgment passed by the learned Courts below is on the ground that the learned J.M.F.C.(R), Cuttack has no territorial jurisdiction to try the complaint case. 4. It appears that the occurrence in question took place on 01.05.2005 at about 5.00 p.m. in village Mugabhanga in the garden of the complainant-opp. Party no.2. The place of occurrence situates under Cuttack Sadar Police Station in the district of Cuttack. In the complaint petition, in Col. No. III which relates to time, place and date of the incident, the complainant has mentioned that the incident took place on 01.05.2005 at about 5 p.m. in his garden situated at village Mugabhanga. 5. After filing of the complaint petition, the learned Magistrate recorded the initial statement of the complainant, conducted inquiry under section 202 of Cr.P.C. and then he took cognizance of the offences under sections 379/ 323/ 354/ 447/ 506/ 34 of the Indian Penal Code and issued process against the petitioners. 6. The petitioners after their appearance before the learned Magistrate filed a petition raising the point of jurisdiction of the Court to proceed with the matter and prayed to set aside the order taking cognizance. According to the petitioners, the occurrence took place at mouza Janmejayapur which is under Balianta Police Station under the jurisdiction of Bhubaneswar Court under Khurda District. 7. The learned Magistrate rejected the petition filed by the petitioners vide impugned order dated 26.11.2005 on the ground that on perusal of the materials, it was found to have been stated by the complainant that the occurrence took place in his garden which is under Sadar Police Station. It was further held that he has no jurisdiction to review or recall the order of cognizance. It was further held that he has no jurisdiction to review or recall the order of cognizance. The order was challenged before the Court of Session in a revision petition and the learned Revisional Court analyzing the provision under sections 177 and 178 of Cr.P.C. came to hold that where it is uncertain in which of the several areas an offence was committed or where an offence was committed partly in one local area and partly in another, it may be inquired into or tried by the Court having jurisdiction over any of such local area. The learned Revisional Court further held that the complaint petition clearly discloses that the place of occurrence is the garden of the house of the complainant under village Mugabhanga and the place of occurrence has not been disputed by the petitioners and considering the provision under section 178 of Cr.P.C., it was held that no illegality has been committed by the learned Court in exercising its jurisdiction and in taking cognizance on the complaint and accordingly, the revisional Court dismissed the revision petition. 8. In case of Deepti @ Aarati Rai -Vrs.- Akhil Rai reported in (1995) 5 Supreme Court Cases 751, it is held that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. 9. In case of Krishnan -Vrs.-Krishnaveni reported in (1997) 13 Orissa Criminal Reports (SC) 41, it is held as follows:- “10. Ordinarily, when revision has been barred by section 397(3) of the Code, a person-accused/complainant-cannot be allowed to take recourse to the revision to the High Court under section 397(1) or under inherent powers of the High Court under section 482 of the Code since it may amount to circumvention of the provisions of section 397(3) or section 397(2) of the Code. It is seen that the High Court has suo motu power under section 401 and continuous supervisory jurisdiction under section 483 of the Code. It is seen that the High Court has suo motu power under section 401 and continuous supervisory jurisdiction under section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397(1) read with section 401 of the Code.” 11. In case of Laxmi Bai Patel -Vrs.-Shyam Kumar Patel reported in JT 2002 (3) SC 409, it is held that in a case where the sessions court exercising revisional power under section 397(3) Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well-settled that in such a case power under section 482 Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the Court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the Court and will result in failure of justice. 12. Therefore, inherent power of the High Court cannot be invoked in a mechanical and whimsical manner that the effect would be just entertaining a second revision which has been expressly barred except in extraordinary cases. The bar, as contained in sub-section (3) of section 397 of Cr.P.C. cannot be circumvented by resorting to section 482. A second revision in the garb of petition under section 482 Code of Criminal Procedure is ordinarily not maintainable except as provided by the Hon’ble Supreme Court in cases of Krishnan (supra) and Laxmi Bai Patel (supra). An order passed in revision cannot be quashed under section 482 Code of Criminal Procedure. A second revision in the garb of petition under section 482 Code of Criminal Procedure is ordinarily not maintainable except as provided by the Hon’ble Supreme Court in cases of Krishnan (supra) and Laxmi Bai Patel (supra). An order passed in revision cannot be quashed under section 482 Code of Criminal Procedure. The bar of this section would be attracted effectively and it cannot be circumvented by the subterfuge of treating the revision application as directed against the Sessions Judge's order instead of one directed against the order of a Magistrate. 13. Section 178 of Cr.P.C. states about the place of inquiry or trial if an offence is committed. Clause (a) of section 178 of the Code deals with a situation when it is uncertain as to which particular place the accused actually committed the offence or where actually the offence was committed. Where it is uncertain as to in which of several local areas like “X” or “Y” the offence was committed, the offence can be inquired into or tried by a Court having jurisdiction over any of such local areas “X” or “Y”. The complainant may not be certain as to which of the uncertain places actually the offence was committed. There must be some factual basis for the allegation that the offence had been committed at one of the several uncertain places. Where there is dispute regarding place of commission of an offence, accused should not go scot free on the ground of competence of jurisdiction of Court. In such case, inquiry or trial may be held at either or any of those disputed places. 14. In the case in hand, it is the case of the complainant that the occurrence in question took place in his garden which situates under village Mugabhanga which comes within the jurisdiction of learned J.M.F.C.(R), Cuttack. The case of the petitioners is that the occurrence in question took place in mouza Janmejayapur under the Balianta Police Station within the jurisdiction of learned S.D.J.M., Bhubaneswar. It is a factual dispute which cannot be adjudicated at this stage particularly when prima facie material reveals that the complaint petition has been filed before the competent Court. The case of the petitioners is that the occurrence in question took place in mouza Janmejayapur under the Balianta Police Station within the jurisdiction of learned S.D.J.M., Bhubaneswar. It is a factual dispute which cannot be adjudicated at this stage particularly when prima facie material reveals that the complaint petition has been filed before the competent Court. At the stage of taking cognizance and issuance of process, the averments made in the complaint petition, the initial statement of the complainant as well as the statements of the witnesses recorded under section 202 Cr.P.C. are to be looked into. 15. The defence plea that the occurrence took place at some other place and therefore, the learned J.M.F.C.(R), Cuttack lacks jurisdiction to try the case cannot be adjudicated at this stage. The petitioners by cross examining the witnesses of the complainant or by examining defence witnesses can raise such point at appropriate stage which will be considered by the Trial Court in accordance with law. 16. On going through the impugned order and judgment passed by the Courts below, I am of the view that neither the learned J.M.F.C.(R), Cuttack nor the Revisional Court have committed any illegality in rejecting the contention raised by the petitioners regarding lack of territorial jurisdiction with the Court of learned J.M.F.C.(R), Cuttack to adjudicate I.C.C. Case No.52 of 2005. It is not of one of such rare cases and there exists no such exceptional circumstances where by permitting the impugned order and judgment to remain undisturbed will amount to abuse of process of the Court and will result in failure of justice. Therefore, I am not inclined to interfere with the aforesaid order and judgment invoking power under section 482 of Cr.P.C. Accordingly, the CRLMC application stands dismissed.