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2017 DIGILAW 653 (ORI)

Pratap Kumar Sahoo v. Raghunath Jena

2017-07-03

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. Heard Mr. Pradipta Kumar Mohanty, learned Senior Advocate for the petitioners and Mr. Ajit Kumar Choudhury, learned counsel for the opposite party no.1. 2. In this application under section 482 Cr.P.C., the petitioners Pratap Kumar Sahoo and Prafulla Chandra Badajena, who were the Ex-Addl. Tahasildar, Marsaghai and the then Officer in-charge, Patkura Police station respectively have challenged the impugned order dated 07.07.2003 passed by the learned S.D.J.M., Kendrapara in I.C.C. Case No. 77 of 2003 in taking cognizance of the offences under sections 294/323/354/379/188/427/448 of the Indian Penal Code read with section 3 of the SC/ST (P.A.) Act. 3. It is stated by the learned counsel for the petitioners that the complaint petition is out and out a false case and the same has been filed just to harass the public servants like the petitioners and the petitioners on the relevant day were performing their official duties and as per the order passed in a eviction proceeding, the unauthorized structure constructed by the complainant-opposite party no.1 was demolished and for that reason the complainant with a vindictive attitude has concocted the case and therefore, since the proceeding is attended with malafide, the same should be quashed. Learned counsel for the petitioners has relied upon the order sheet of the eviction proceeding in support of his contentions. 4. Learned counsel for the complainant-opposite party no.1 on the other hand submitted that eviction order was under challenge before this Court in a writ petition and interim order was passed on 28.03.2003 directing the petitioner no.1 not to evict the complainant and thereafter final order was passed in 21.04.2003 directing the petitioner no.1 not to give effect to the eviction notice dated 10.02.2003 till disposal of the consolidation proceeding pending before the A.C.O. (Camp Court), Karilopatna and flouting the same, not only the structure constructed by the complainant was demolished but also certain overt acts have been committed which are highlighted in the complaint petition. 5. It is stated by the learned counsel for the petitioners that the orders of this Court passed in the writ petition was not brought to the notice of the petitioners for which they performed their duties in accordance with law. 6. 5. It is stated by the learned counsel for the petitioners that the orders of this Court passed in the writ petition was not brought to the notice of the petitioners for which they performed their duties in accordance with law. 6. Be that as it may, since there are certain disputed facts raised in this case and at the stage of taking cognizance, the Court is to look into the prima facie case without entering in detail into the truthfulness or otherwise of the averments made in the complaint petition, I am not inclined to accept the contentions raised by the learned counsel for the petitioners to interfere with the impugned order of taking cognizance invoking my power under section 482 of Cr.P.C. The petitioners are at liberty to raise all the points taken in this application under section 482 Cr.P.C. as well as other points which are permissible in law at the time of framing of the charge which shall be duly considered by the learned Trial Court in accordance with law. I am not expressing any opinion on any grounds taken by the petitioners in this application under section 482 Cr.P.C. 7. Learned counsel for the petitioners contended that the impugned order indicates that after taking cognizance of offences, warrant of arrest was issued against the petitioners in the very order. He further submitted that in view of the decision of the Hon’ble Supreme Court in case of Inder Mohan Goswami –Vrs.-State of Uttaranchal reported in (2008) 39 Orissa Criminal Reports (SC) 188, in a complaint case after taking cognizance of the offences, the learned Magistrate cannot directly issue non-bailable warrant of arrest against the accused, first he has to issue summons and thereafter bailable warrant and then the Court can issue non-bailable warrant of arrest after being fully satisfied that the accused is avoiding the Court’s proceeding. 8. In view of the ratio laid down by the Hon’ble Supreme Court in the aforesaid case, the issuance of warrant of arrest as per the impugned order against the petitioners stands quashed. In the event the petitioners appear before the learned S.D.J.M., Kendrapara within a period of two weeks from today and move an application for bail, the same shall be considered by the learned Magistrate on the very day in accordance with law. Accordingly, the CRLMC application is disposed of.