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2017 DIGILAW 543 (ORI)

Bijaya Kumar Mallick v. Rabinarayan Lenka

2017-05-09

S.K.SAHOO

body2017
S.K. SAHOO, J. Heard Mr. Debasis Pattnaik, learned counsel for the petitioner and Mr. B. S. Dasparida, learned counsel for the opposite party. The petitioner Bijaya Kumar Mallick has filed this application under section 482 of the Criminal Procedure Code challenging the impugned orders dated 07.09.2004 as well as 04.01.2005 passed by the learned Sub-divisional Judicial Magistrate, Dhenkanal in I.C.C. No.99 of 2004. In the impugned order dated 07.09.2004, the learned S.D.J.M., Dhenkanal on perusal of the complaint petition, statements of the complainant and the witnesses examined by the complainant-opposite party during inquiry under section 202 of Cr.P.C., found prima facie case punishable under sections 294, 448, 457, 395, 354, 506 read with section 34 of the Indian Penal Code and accordingly, issued non-bailable warrant of arrest against the petitioner and in the impugned order dated 04.01.2005, the learned Magistrate has rejected the petition filed by the petitioner for recalling the order of taking cognizance. The opposite party Rabinarayan Lenka filed a complaint petition on 07.07.2004 in the Court of learned S.D.J.M., Dhenkanal against the petitioner and others for commission of offences under sections 294, 427, 448, 457, 379, 395, 354, 506 read with section 34 of the Indian Penal Code. It is the case of the opposite party-complainant that one Brahmananda Lenka, the nephew of the complainant fell in love with one Puspalata Swain and both of them went to Cuttack and married there according to Hindu rites and customs and relating to such incident, on 11.02.2004 at about 2.00 to 4.00 p.m., all the accused persons being headed by petitioner in furtherance of their common intention forcibly entered inside the house of the complainant as well as his brothers by breaking open the doors. The petitioner asked the brother of the complainant regarding the whereabouts of Brahmananda Lenka and when the brother of the complainant expressed his ignorance, the petitioner assaulted him and trampled over him for which he sustained fracture in his leg. Thereafter, all the accused persons abused the female members of the family of the complainant and his brothers in obscene languages and outraged their modesty and threatened to kill the complainant and his family members. The accused persons were armed with deadly weapons for which the complainant as well as his family members could not dare to raise their voice. Thereafter, all the accused persons abused the female members of the family of the complainant and his brothers in obscene languages and outraged their modesty and threatened to kill the complainant and his family members. The accused persons were armed with deadly weapons for which the complainant as well as his family members could not dare to raise their voice. Thereafter, the accused persons damaged the household articles of the complainant and his family members and took away paddy crops, utensils and many household articles etc. It is further stated in the complaint petition that out of fear, all the family members of the complainant and his brothers went to Cuttack and stayed there. The complainant communicated the incident to the higher police officers but nobody paid any heed to it rather a false case was foisted against the complainant and his family members and after being released on anticipatory bail in the said case, the complainant and his family members requested to different authorities of the police department for taking necessary action against the accused persons and for recovery of the stolen articles but no fruitful result came out for which the complaint petition was filed. The learned S.D.J.M., Dhenkanal posted the case to 12.07.2004 and on that day after perusing the complaint petition, he took cognizance of the offences under sections 294, 427, 448, 457, 379, 395, 354, 506 read with section 34 of the Indian Penal Code and posted the case for examination of the complainant under section 200 of Cr.P.C. The order-sheet which has been filed by the learned counsel for the petitioner further reveals that thereafter the statement of the complainant was recorded under section 200 Cr.P.C. on 27.07.2004 and the case was posted for inquiry under section 202 of Cr.P.C. Three witnesses were examined by the complainant during inquiry on 18.08.2004 and on 30.08.2004 the complainant filed a memo not to adduce any further evidence and accordingly, the impugned order dated 07.09.2004 was passed. The petitioner entered appearance through his advocate on 17.12.2004 and filed a petition to recall the order of taking cognizance and issuance of process which was rejected vide impugned order dated 04.01.2005. In the case of Adalat Prasad Vs. Rooplal Jindal reported in (2004) 29 Orissa Criminal Reports (SC) 264, it is held as follows:- “16. The petitioner entered appearance through his advocate on 17.12.2004 and filed a petition to recall the order of taking cognizance and issuance of process which was rejected vide impugned order dated 04.01.2005. In the case of Adalat Prasad Vs. Rooplal Jindal reported in (2004) 29 Orissa Criminal Reports (SC) 264, it is held as follows:- “16. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code.” In view of the ratio laid down by the Hon’ble Supreme Court, the learned S.D.J.M., Dhenkanl has no power to recall the order of taking cognizance and therefore, I am of the humble view that no illegality has been committed by the learned Court below in rejecting such petition vide impugned order dated 04.01.2005. The learned counsel for the petitioner contended that the learned S.D.J.M., Dhenkanal has committed illegality in taking cognizance of the offences prior to recording of the initial statement of the complainant under section 200 Cr.P.C. and therefore, the order of taking cognizance and consequential order of issuance of process are vitiated in the eye of law. He relied upon the decision of this Court in the case of Raj Kumar Mahala -Vrs.-State of Orissa reported in 2015 (I) Orissa Law Reviews 391. In the said case, it is held that any Magistrate, before taking cognizance of offence on a complaint lodged before him/her, has to first examine the complainant on oath and the witnesses present and thereafter, if prima facie satisfied about the commission of offence, to issue process to the accused persons. Therefore, there has to be a conscious application of mind after recording of the statement of the complainant and his/her witnesses for the purpose of taking cognizance of the offence before issuing process against the concerned accused persons. Therefore, there has to be a conscious application of mind after recording of the statement of the complainant and his/her witnesses for the purpose of taking cognizance of the offence before issuing process against the concerned accused persons. It was further held that after recording the statement of the complainant and his/her witnesses on first date, as contemplated under section 200 Cr.P.C., if the Magistrate concerned does not derive satisfaction about the culpability of the accused persons, he can defer the issuance of process till recording of the statements of the witnesses of the complainant, as envisaged in section 202 Cr.P.C. It is further held that the act of taking cognizance in law, cannot precede the recording of initial statement of the witnesses of the complainant in support of the allegations constituting the offences. A decision of this Court in the case of Nira @ Niranjan Mohanty -Vrs.-Narayan Padhan reported in 1990 (I) Orissa Law Reviews 408 was relied upon wherein the act of the learned Magistrate taking cognizance of the offences and thereafter, directing inquiry under section 202 Cr.P.C. was held to be irregular and illegal. The learned counsel appearing for the opposite party on the other hand supported the impugned order and contended that there is no illegality or infirmity in the impugned order. The question that crops up for consideration is whether the prior to the recording of initial statement under section 200 of Cr.P.C., a Magistrate is empowered to take cognizance of the offence on perusal of the complaint petition on being satisfied that prima facie case is made out. In the case of H.S. Bains -Vrs.-The State (Union Territory of Chandigarh) reported in AIR 1980 Supreme Court 1883, it is held as follows:- “6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint, a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding, he may dismiss the complaint under Sec. 203. If in his opinion there is sufficient ground for proceeding, he may issue process under Sec. 204. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding, he may dismiss the complaint under Sec. 203. If in his opinion there is sufficient ground for proceeding, he may issue process under Sec. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Sec. 156(3). The police will then investigate and submit a report under Sec. 173(1). On receiving the police report, the Magistrate may take cognizance of the offence under sec. 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not.” In the case of Ajoy Kumar Ghose -Vrs.-State of Jharkhand reported in (2009) 43 Orissa Criminal Reports (SC) 228, it is held as follows:- “18. The previous stage would obviously be before the evidence of the prosecution under section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present...” In the case of Vasanti Dubey Vs. State of Madhya Pradesh reported in (2012) 51 Orissa Criminal Reports (SC) 646, it is held as follows:- “15. .... In short, on receipt of a complaint, the Magistrate is not bound to take cognizance but he can without taking cognizance direct investigation by the police under Section 156(3) of Cr.P.C. Once, however, he takes cognizance, he must examine the complainant and his witnesses under section 200. .... In short, on receipt of a complaint, the Magistrate is not bound to take cognizance but he can without taking cognizance direct investigation by the police under Section 156(3) of Cr.P.C. Once, however, he takes cognizance, he must examine the complainant and his witnesses under section 200. Thereafter, if he requires police investigation or judicial enquiry, he must proceed under section 202.....” Section 190 of the Cr.P.C. deals with cognizance of offences by Magistrates. The expression ‘taking cognizance of offence’ has not been defined in the Code. In its broad and literal sense, it means taking judicial notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. (Ref:-A.I.R. 1995 S.C. 785, State of West Bengal Vs. Mohammed Khalid). In view of the plethora of decisions of the Hon’ble Supreme Court, the observation of the learned Single Bench of this Court in the case of Raj Kumar Mahala (supra) cannot be accepted as it is given per incuriam for not taking into consideration the law laid down by the Hon’ble Supreme Court in the cases of H.S. Bains (supra), Ajoy Kumar Ghose (supra) & Vasanti Dubey (supra). A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covers the case before it. A decision should not be treated as given per incuriam, simply because of a deficiency of parties, or because the Court had not the benefit of the best argument, and, as a general rule, the only cases in which decision should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. A decision should not be treated as given per incuriam, simply because of a deficiency of parties, or because the Court had not the benefit of the best argument, and, as a general rule, the only cases in which decision should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority. Where a case or statute had not been brought to the Court's attention and the Court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. Rule of per incuriam can be applied where a Court omits to consider a binding precedent of the same Court or of the Superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue. ‘Incuria' literally means 'carelessness'. In practice, per incuriam appears to mean per ignoratium. The 'quotable in law' is avoided and ignored if it is rendered ‘in ignoratium of a statute or other binding authority’. A prior decision of the Supreme Court on identical facts and law binds the Court on the same points of law in a latter case. In exceptional instances, where obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, the principle of per incuriam may apply. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment "per incuriam". It has to be shown that some part of the decision was based on a reasoning which was demonstrably wrong, for applying the principle of ‘per incuriam’. Therefore, I am of the view that the learned S.D.J.M., Dhenkanal has not committed any illegality in taking cognizance of the offences vide order dated 12.07.2004 after perusing the complaint petition which has not been challenged before this Court. The impugned order challenged is dated 07.09.2004 in which the Court issued process against the petitioner after finding prima facie case under sections 448, 457, 294, 395, 354, 506 read with section 34 of the Indian Penal Code after perusing the complaint petition, initial statement of the complainant and statements of witnesses recorded under section 202 of Cr.P.C. In my humble view, there is no illegality in the issuance of process against the petitioner. The learned Magistrate however should not have issued non-bailable warrant of arrest against the petitioner at the first instance in a complaint case which is not sustainable in the eye of law in view of the decision of the Hon’ble Supreme Court in the case of Inder Mohan Goswami -Vrs.-State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188. The learned Magistrate has to issue summons to the petitioner for his appearance. Learned counsel for the petitioner contended that the petitioner who was the Ex-officer in Charge of Gondia Police Station was on duty on the relevant day and he had gone to the house of the complainant in connection with a case which was instituted against the complainant to arrest him and in absence of any sanction from the competent authority to prosecute the petitioner, the order of taking cognizance and issuance of process is vitiated in the eye of law. There is no such material at present before me to come to a finding that the petitioner was discharging his official duty at the relevant point of time. No document has been annexed to this application in support of such contention. In course of trial however, if the petitioner brings any such materials on record, the learned Trial Court is at liberty to consider applicability of the provision under section 197 of Cr.P.C. in accordance with law. With the aforesaid observation, the CRLMC application is disposed of.