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2017 DIGILAW 698 (ORI)

Khetramohan Majhi v. State of Orissa

2017-07-10

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. This is an application under section 482 of the Cr.P.C. filed by the petitioner Khetramohan Majhi challenging the impugned order dated 11.09.2000 passed by the learned S.D.J.M., Bhadrak in I.C.C. Case No.342 of 2000/T.R. No.1407 of 2000 in which after perusing the complaint petition filed by the complainant-opposite party no.2 Ghanasyam Majhi and after going through the initial statement of the complainant recorded under section 200 Cr.P.C., the learned Court found prima facie case under sections 447, 506 read with section 34 of the Indian Penal Code and accordingly, took cognizance of such offences and issued process against the petitioner. 2. The petitioner filed a petition on 24.10.2000 though his advocate to recall of the order of taking cognizance. The learned S.D.J.M., Bhadrak considered such petition and vide order dated 19.03.2001 has been pleased to dismiss the petition. 3. The petitioner preferred a revision against the order dated 19.03.2001 passed by the learned S.D.J.M., Bhadrak which was heard by the learned Additional Sessions Judge (Fast Track Court), Bhadrak in Criminal Revision No.21 of 2001 and vide order dated 20.01.2005, the learned Revisional Court relying upon the ratio laid down in the case of Adalat Prasad Vrs. Rooplal Jindal and others reported in (2004) 29 Orissa Criminal Reports (SC) 264 has been pleased to hold that the learned Magistrate has no power to recall the order of taking cognizance and accordingly, dismissed the revision petition. Challenging the dismissal of the revision petition, the petitioner has approached this Court. None appears on behalf of the petitioner. 4. It is stated in the grounds taken in the application under section 482 of Cr.P.C. that without any inquiry contemplated under section 202 Cr.P.C., the Magistrate should not have taken cognizance of offences and the initial statement of the complainant does not corroborate the story narrated in the complaint petition and the learned Magistrate has whimsically and arbitrarily relied upon the initial statement of the complainant and took cognizance of offences. It is further stated that the ingredients of the offences under sections 447 and 506 of the Indian Penal Code are not made out and therefore, the impugned order of taking cognizance passed by the learned S.D.J.M., Bhadrak in I.C.C. Case No. 342 of 2000 should be quashed. 5. It is further stated that the ingredients of the offences under sections 447 and 506 of the Indian Penal Code are not made out and therefore, the impugned order of taking cognizance passed by the learned S.D.J.M., Bhadrak in I.C.C. Case No. 342 of 2000 should be quashed. 5. Perused the complaint petition which has been annexed to this petition so also the initial statement of the complainant which was recorded on 11.09.2000. On going through the complaint petition as well as initial statement, it appears that there is prima facie case for commission of offences under sections 447 and 506 of the Indian Penal Code inasmuch as it is stated that the accused persons being armed with different weapons trespassed into the land of the complainant and created certain overtacts and also threatened the complainant. 6. In case of Krishnan -Vrs.-Krishnaveni reported in (1997) 13 Orissa Criminal Reports (SC) 41, it has been held the object of section 397(3) Cr.P.C. is to put a bar on simultaneous revisional applications to the High Court and the Court of Session so as to prevent unnecessary delay and multiplicity of proceedings. When the 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 the 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 further held that though the revision before the High Court under sub-section (1) of section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under section 483 of Cr.P.C. When the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the 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 ensure. 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. 7. The grounds taken that without any inquiry contemplated under section 202 Cr.P.C., the Magistrate should not have taken cognizance of offences is not correct. The inquiry contemplated under section 202 of Cr.P.C. is always a post-cognizance stage and it is conducted for the purpose of deciding whether or not there is sufficient ground for proceeding and if so, against which accused the process is to be issued under section 204 of Cr.P.C. or the complaint petition is to be dismissed under section 203 of Cr.P.C. The power to take cognizance without holding inquiry appears to be implicit under section 202 in as much as section 202 opens with the words ‘postponement of issue of the process’. If the Magistrate does not want to postpone issue of process and after recording the initial statement of the complainant and his witnesses under section 200 Cr.P.C., he is satisfied that there is sufficient ground for proceeding, he can issue process against the accused under section 204 Cr.P.C. and he need not follow the procedure laid down under section 202 of the Code. Only when after recording the statements under section 200 of Cr.P.C., the Magistrate thinks that the materials collected are not sufficient for issuance of process, he has to defer/postpone the issue of process and enter into 202 stage to collect some materials to come to a finding that there is sufficient ground for proceeding. 8. Only when after recording the statements under section 200 of Cr.P.C., the Magistrate thinks that the materials collected are not sufficient for issuance of process, he has to defer/postpone the issue of process and enter into 202 stage to collect some materials to come to a finding that there is sufficient ground for proceeding. 8. Keeping in view the principle laid down by the Hon’ble Supreme Court in the case of Krishnan (supra) and on going through the averments made in the application under section 482 Cr.P.C. when prima facie case under sections 447 and 506 read with section 34 of the Indian Penal Code is clearly made out against the petitioner and when the petitioner has already approached the Revisional Court and the revision petition has been dismissed on merits and no exceptional circumstances has been made out in this application to interfere with the impugned order, I am not inclined to invoke the inherent power under section 482 Cr.P.C. to take a contrary view. 9. Therefore, this application under section 482 Cr.P.C. being devoid of merits stands dismissed.