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2017 DIGILAW 460 (ORI)

Debadutta Mohapatra v. State of Orissa

2017-04-24

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. This application under section 482 of the Criminal Procedure Code has been filed by the petitioner Debadutta Mohapatra with a prayer to quash the charge-sheet dated 07.12.2002 filed by the A.S.I. of Police, Daspalla Police station in Daspalla P.S. Case No. 101 of 2002 against him under sections 332/294/183/186/506 of the Indian Penal Code and also the impugned order dated 10.12.2002 passed by the learned J.M.F.C., Daspalla in G.R. Case No. 132 of 2002 (arising out of Daspalla P.S. Case No. 101 of 2002) in taking cognizance of the offences under sections 332/294/183/186/506 of the Indian Penal Code and issuance of process against him. 2. The prosecution case, in short, is that on 31.10.2002 at about 9.45 p.m. S.I. Sri S.Mohanty, officer in charge of Daspalla Police station drew up the plain paper F.I.R. at village Jagadevpatna to the effect that in connection with the investigation of Daspalla P.S. Case No. 97 of 2002, he visited the house of Rabindra Kumar Prusty along with Circle Inspector, Khandapada, A.S.I. A. Sahoo, C/259 R.Ch.Rath, WC.252 B. Sethi, local witnesses Gouri Sankar Nanda & Sanjukta Dasgupta and accused Suresh Rout who confessed to have given the looted gold ornaments of his share to Rabindra Kumar Prusty. During conversation, accused Rabindra Kumar Prusty admitted to have received the gold and silver ornaments from accused Suresh Rout and melted the same. He also produced the melted gold and silver ornaments for seizure. During seizure, the petitioner suddenly arrived there and challenged the informant as to under what authority he got the right of seizure of the melted gold. When the informant tried to explain the petitioner about the legal position and requested him not to interfere in the investigation of the case being an outsider, the petitioner suddenly became furious and started arguing with the informant using unparliamentarily language and in intimidating terms. When the informant warned the petitioner that he can arrest him for intimidating and obstructing a police officer during due discharge of his duty, he shouted more loudly and used obscene language like “Sala Magiha Police” and threatened to take out his stars. The petitioner also threatened to harass the informant by filing a complaint case against him and suddenly he gave a strong push on the neck of the informant. However due to intervention of public, the informant was saved from further assault. The petitioner also threatened to harass the informant by filing a complaint case against him and suddenly he gave a strong push on the neck of the informant. However due to intervention of public, the informant was saved from further assault. Due to suspected fracture injury on his right hand wrist, the informant was unable to defend him. The staff accompanying him came to his rescue and when they tried to apprehend the petitioner, he ran away from the spot. 3. After registration of the case, the case was investigated by A.S.I. of Daspalla Police station who examined the informant and witnesses. The petitioner surrendered before the learned J.M.F.C., Daspalla and was released on bail. Circle Inspector, Khandapada supervised the case and directed the Investigating Officer to submit charge sheet and accordingly, charge sheet was submitted under sections 332/294/183/186/506 of the Indian Penal Code against the petitioner. 4. While challenging the charge sheet as well as the impugned order of cognizance dated 10.12.2002, it was contended by Mr. Ashok Kumar Swain, learned counsel for the petitioner that submission of charge-sheet against the petitioner under section 332 of the Indian Penal Code without the written order the District Superintendent of Police is not proper and justified in view of Rule 144(b) of the Orissa Police Rules. He further submitted that submission of charge sheet and consequential order of taking cognizance of offences under sections 183 and 186 of the Indian Penal Code on the first information report submitted by the officer in charge of Daspalla Police station is also not justified in view of the provision under section 195(1)(a) of Cr.P.C. 5. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel for the State on the other hand supported the impugned order of taking cognizance and submitted that prima facie case under the offences under which the charge sheet has been submitted are clearly attracted and therefore, the application under section 482 Cr.P.C. should be dismissed. 6. Mr. Chitta Ranjan Swain, learned Addl. Standing Counsel for the State on the other hand supported the impugned order of taking cognizance and submitted that prima facie case under the offences under which the charge sheet has been submitted are clearly attracted and therefore, the application under section 482 Cr.P.C. should be dismissed. 6. Adverting the contentions raised by the learned counsels for the respective parties relating to taking of cognizance of offences under sections 183 & 186 of the Indian Penal Code, it is seen that as per section 195(1)(a) of Cr.P.C., for taking cognizance of the offences punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or of any abetment of, or attempt to commit, such offence, or of any criminal conspiracy to commit such offence, complaint in writing has to be made by the concerned public servant or of some other public servant to whom he is administratively subordinate. 7. Sections 183 and 186 of the Indian Penal Code appear in chapter-X of the Indian Penal Code which deals with the contempts of the lawful authority of public servants. Public servants have been entrusted with performance of sacrosanct duties under different statutes. These provisions are aimed at providing smooth performance of their duties and whosoever makes any attempt to create any kind of hindrance to the same, he will be punished by Court of law provided that the complaint is made by the concerned public servant or his administrative superior. 8. The words “complaint in writing” is the “complaint” as defined in section 2(d) of the Code which means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. However, if a report made by a police officer in a case which discloses, after investigation, the commission of non-cognizable offence, it shall be deemed to be a complaint, and the concerned police officer by whom such report is made shall be deemed to be the complainant as per the explanation to section 2(d) of the Code. “Police report” means a report forwarded by a police officer to a Magistrate under subsection (2) of section 173 of the Code as defined in section 2(r) of the Code. “Police report” means a report forwarded by a police officer to a Magistrate under subsection (2) of section 173 of the Code as defined in section 2(r) of the Code. Therefore, in case of commission of offence under sections 183 and 186 of the Indian Penal Code, complaint petition is only maintainable but if an F.I.R. is lodged for commission of such offences and after investigation, charge sheet is filed only for such offences which are non-cognizable then as per the explanation under section 2(d) of the Code, such charge sheet shall be deemed to be a complaint and the police officer submitting such charge sheet shall be deemed to be the complainant. 9. In case of Surajmani Srimali -Vrs.-State of Orissa reported in Vol.48 (1979) Cuttack Law Times 625, it is held that charge sheet submitted by the police in respect of a cognizable offence cannot be held to be a complaint as defined in the Code. In this case, charge sheet was submitted, inter alia, for offence under section 332 of the Indian Penal Code which is a cognizable offence. 10. Mr. Swain drew my attention to the decision of the Hon’ble Supreme Court in the case Saloni Arora -Vrs.-State of NCT of Delhi reported in (2017) 66 Orissa Criminal Reports 718 wherein the Hon’ble Supreme Court relying upon the decision of Daulat Ram -Vrs.-State of Punjab reported in A.I.R. 1962 S.C. 1206 has held that in order to prosecute an accused for an offence punishable under section 182 of the Indian Penal Code, it is mandatory to follow the procedure prescribed under section 195 of the Code or else such action is rendered void ab initio. It was further held that it is not in dispute that the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under section 195 of the Code and therefore, the action taken by the prosecution against the appellant insofar as it relates to the offence under section 182 of the Indian Penal Code is concerned, is rendered void ab initio being against the law. In case of State of Orissa -Vrs.-Gopinath Das reported in Vol.61 (1986) CLT 405, the State of Orissa challenged the acquittal of the respondent under section 182 of the Indian Penal Code by the Appellate Court and the ground of acquittal was that a complaint by public servant was not filed under section 195(1)(a) of the Code and so cognizance of the offence under section 182 of the Indian Penal Code was not in accordance with law. This Court held that it is a fact that a public servant did not file a complaint before the Magistrate in accordance with the provisions of section 195(1)(a) of the Code making allegations of commission of an offence under section 182 of the Indian Penal Code. The respondent submitted a report making allegations of robbery which after investigation was found to be false and the offence under section 182 of the Indian Penal Code was included in the charge sheet for the offence under section 409 of the Indian Penal Code. Considering the ratio of Surajmani Srimali case (supra), it was held that in absence of regular complaint petition by a public servant, cognizance of offence under section 182 of the Indian Penal Code was not in accordance with law as the provision under section 195(1)(a) of the Code was not strictly complied with and accordingly, the acquittal order passed under section 182 of the Indian Penal Code was confirmed. 11. In the present case, F.I.R. was submitted by the officer in charge of Daspalla Police station and charge sheet was filed by the A.S.I. of Daspalla police station for offences, inter alia, under sections 183 and 186 of the Indian Penal Code and the learned Magistrate has taken cognizance of such offences on the basis of the charge sheet. I am of the view that the order of taking cognizance of offences under sections 183 and 186 of the Indian Penal Code is illegal in view of the provision under section 195(1)(a) of the Cr.P.C. Therefore, the order of taking cognizance of offences under sections 183 and 186 of the Indian Penal Code cannot be sustained in the eye of law and accordingly, the same is hereby set aside. 12. 12. So far as the cognizance of offence under section 332 of the Indian Penal Code is concerned, Rule 144(b) of the Orissa Police Rules reads as follows:- “144(b) Assaults or obstruction of police officers :- If a police officer is hurt, assaulted or obstructed in the execution of duty, he must lodge a first information at the police station or file a complaint. If he lodges a first information, a case under section 332, 333 or 353 of the Indian Penal Code shall be instituted and investigated in the ordinary way but a charge-sheet shall not be submitted except under the written order of the Superintendent, if he files a complaint and it is referred to the police for enquiry, the report shall in all cases be submitted through the Superintendent.” 13. However, as per the note under Rule 144(b), this order does not apply to cases instituted on the information of other public servants. In such cases, charge sheets may be submitted after investigation without reference to the Superintendent. 14. In this case, the informant himself is stated to have been hurt and obstructed while in execution of his duty. A.S.I. of Police, Daspalla Police station investigated the matter which was supervised by the Circle Inspector, Khandapada who directed the A.S.I. of Police to submit charge sheet for offences, inter alia, under section 332 of the Indian Penal Code. The Superintendent means a District Superintendent of Police as per Rule 10(a) of Orissa Police Rules. Therefore, while submitting charge-sheet, the provision under Rule 144(b) of Orissa Police Rules has not been followed inasmuch as written order of the District Superintendent of Police has not been obtained. Moreover, one of the basic ingredients of the offence under section 332 of the Indian Penal Code is that the accused must have voluntarily caused hurt to the public servant in the discharge of his duty. Section 321 of the Indian Penal Code describes ‘voluntarily causing hurt’. There is no clinching material for submission of charge-sheet under section 332 of the Indian Penal Code and therefore, the order of taking cognizance for such offence is not sustainable in the eye of law and accordingly, the same is hereby set aside. 15. Section 321 of the Indian Penal Code describes ‘voluntarily causing hurt’. There is no clinching material for submission of charge-sheet under section 332 of the Indian Penal Code and therefore, the order of taking cognizance for such offence is not sustainable in the eye of law and accordingly, the same is hereby set aside. 15. So far as the offences under sections 294 and 506 of the Indian Penal Code, on a plain reading of the first information report, it indicates that the petitioner used obscene languages like “ Sala Maghia Police” and threatened the informant to take his stars. He also threatened to file a complaint case. The available materials on record prima facie makes out the offences under sections 294 and 506 of the Indian Penal Code and therefore, I am not inclined to interfere with the order of taking cognizance under sections 294 and 506 of the Indian Penal Code. 16. Accordingly, the CRLMC application partly succeeds. The impugned order of taking cognizance of offences under sections 183, 186 and 332 of the Indian Penal Code stands quashed. The order of taking cognizance of the offences under sections 294 and 506 of the Indian Penal Code stands confirmed. 17. It is a case of the year 2002. The learned J.M.F.C., Daspalla shall do well to expedite the trial and dispose of the case in accordance with law as expeditiously as possible preferably within a period of six months from the date of receipt of this judgment. 18. It is made clear that this Court has not expressed any opinion on the merits of the case. The learned Trial Court is free to assess the evidence which would come on record and decide the guilt or otherwise of the petitioner while pronouncing the judgment.