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2017 DIGILAW 615 (ORI)

Kamalakanta Nayak v. State of Orissa

2017-06-19

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 Kamalakanta Nayak challenging the impugned order dated 11.10.2004 passed by the learned J.M.F.C., Basudevpur in I.C.C. Case No. 79 of 2004 in taking cognizance of offences punishable under sections 448/354/376/511/506 of the Indian Penal Code and issuance of process against him. 2. It appears that the opp. party no.2 Smt. Bharati Nayak filed the complaint petition on 31.08.2004 relating to the incident dated 26.08.2004 wherein she had alleged that in the absence of her husband, the petitioner entered inside her house, misbehaved with her and outraged her modesty and attempted to commit rape on her and when she cried aloud, the neighbours arrived at the spot and the petitioner fled away. The opp. party no.2 disclosed the incident not only before her husband but to others and also reported the matter to the Superintendent of Police who asked her to come on 30th August, 2004 but subsequently when the opp. party no.2 met the Superintendent of Police, he refused to register the case for which there was delay in filing the complaint petition. 3. After filing of the complaint petition, the initial statement of the complainant-opp. party no.2 was recorded and inquiry was conducted under section 202 Cr.P.C., during course of which witnesses were examined. The learned J.M.F.C., Basudevpur vide order dated 11.10.2004 after perusing the complaint petition, statements of the witnesses recorded under sections 200 & 202 Cr.P.C. came to hold that prima facie case is made out against the petitioner and that there is sufficient ground to proceed against him and accordingly, took cognizance of offences under sections 448/354/376/511/506 of the Indian Penal Code and issued process against the petitioner which is impugned in this application under section 482 Cr.P.C. 4. Mr. B.S. Dasparida, learned counsel appearing for the petitioner while challenging the impugned order dated 11.10.2004 contended that not only there is delay of about five days in filing the complaint petition by the opp. party no.2 but a case was registered at the instance of the petitioner against the opp. Mr. B.S. Dasparida, learned counsel appearing for the petitioner while challenging the impugned order dated 11.10.2004 contended that not only there is delay of about five days in filing the complaint petition by the opp. party no.2 but a case was registered at the instance of the petitioner against the opp. party no.2 on 28.08.2004 at Naikanidihi police station, on the basis of the Naikanidihi P.S. Case No. 75 of 2004 was registered under sections 341/294/323/324/506 of the Indian Penal Code which corresponds to G.R. Case No. 202 of 2004 on the file of learned J.M.F.C., Basudevpur. In the said case, during course of investigation, the petitioner was also medically examined and after conclusion of investigation, the Investigating Officer found prima facie case under sections 341/294/323/324/307/506 of the Indian Penal Code against the opp. party no.2 Smt. Bharati Nayak and accordingly, submitted charge sheet against her on 06.10.2004 and on the basis of such charge sheet, the learned J.M.F.C., Basudevpur vide order dated 08.10.2004 has been pleased to take cognizance of the offences and issued process against the opp. party no.2. 5. It is further contended by the learned counsel for the petitioner that the complaint petition was filed just as a counter blast to the F.I.R. lodged by the petitioner at Naikandihi police station and the delay has remained unexplained and the complaint petition has been filed just to harass and humiliate the petitioner and therefore, the complaint case proceeding should be quashed. 6. 6. Law is well settled as held in case of Nagawwa -Vrs.- Veerana reported in A.I.R. 1976 S.C. 1947 that the order of the Magistrate issuing process against the accused can be quashed by the High Court under the following circumstances:- (i) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (ii) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (iii) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (iv) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. 7. It is not the case of the petitioner that the ingredients of the offences are not attracted on the face of the complaint petition or on the statements of the witnesses recorded either under section 200 or 202 Cr.P.C. or that the allegations are absolutely absurd and improbable or that the complaint suffers from fundamental legal defects. On the other hand, it is the case of the petitioner that just as a counter blast to the F.I.R. lodged by him, the complaint petition was filed by the opp. party no.2. Whether the complaint petition is a counter blast to the first information report submitted by the petitioner or not, whether the allegations made in the complaint petition are acceptable or not and whether there is truthfulness in the version of the complainant and her witnesses or not, the same has to be adjudicated at the appropriate stage by the learned Trial Court. Merely on the ground that a case was initially instituted by the petitioner against the opp. party no.2 at Naikanidihi police station, on the basis of which charge sheet was submitted against the opp. Merely on the ground that a case was initially instituted by the petitioner against the opp. party no.2 at Naikanidihi police station, on the basis of which charge sheet was submitted against the opp. party no.2, the same cannot be a ground to quash the complaint case proceeding particularly, when on the face of the complaint petition, the ingredients of the offences are prima facie made out. 8. Law is well settled that exercise of inherent power under section 482 of Cr.P.C. is not the rule but it is an exception which is to be used sparingly, with circumspection and in rarest of rare cases. When the order of cognizance is challenged, the High Court is not required to embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. 9. In view of the aforesaid observation, I am not inclined to exercise my inherent power under section 482 of Cr.P.C. to quash the impugned order. Accordingly, the CRLMC application being devoid of merit and stands dismissed. 10. The learned Trial Court at the time of adjudicating the matter during trial shall not be influenced by any observation made while disposing of this application under section 482 of Cr.P.C.