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2017 DIGILAW 779 (ORI)

Kamala Kanta Das v. State of Orissa

2017-07-24

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The petitioners Kamal Kanta Das and his brother Shyamala Kanta @ Kajal Das have filed this application under section 482 of Cr.P.C. challenging the impugned order dated 29.09.2003 passed by the learned J.M.F.C., Koraput in G.R. Case No.40 of 2002 (arising out of I.C.C. Case No.47/2001) in taking cognizance of offences under sections 354/506/34 of the Indian Penal Code and issuance of process against them. 2. Learned counsel appearing for the petitioners contended that when the complaint case proceeding was instituted before the learned S.D.J.M., Koraput by the opposite party Smt. Puspanjali Khatei, the learned Magistrate sent it to Koraput Town Police Station under section 156(3) of Cr.P.C. for registration of the F.I.R. and for investigation, on the basis of which Koraput Town P.S. Case No.6 of 2002 was registered on 10.01.2002 under sections 452/294/506/354/440/34 of the Indian Penal Code and after due investigation, on 10.05.2002 the Investigating Officer submitted final report holding that a false case has been filed by the complainant as she was in inimical terms with the accused persons. 3. On receipt of such final report, the learned Magistrate issued notice to the complainant-opposite party no.2 Smt. Puspanjali Khatei for filing protest petition, if any. On receipt of such notice, the advocate for the complainant filed a petition before the learned Magistrate indicating therein that the accused persons are very influential persons and they managed to pressurize the police for submitting a final report without any investigation and that the police neither examined the complainant nor the witnesses in the case but filed the final report to suit the accused persons. It is further mentioned in the application that the complaint petition be treated as protest petition in the case. On receipt of such application, the learned Magistrate recorded the initial statement of the complainant and also conducted inquiry under section 202 of Cr.P.C., during course of which the complainant examined four witnesses namely, Babu Chandra Khatei, Sarata Gouda, Ashabati Jani and Dukhishyam Jena and after perusing the complaint petition, initial statement and the statements of the witnesses examined during inquiry, the learned Magistrate was of the view that the ingredients of the offences under sections 452/440/294 of the Indian Penal Code are not made out. However, being satisfied that prima facie case under sections 354/506 of the Indian Penal Code is made out against the two petitioners, took cognizance of such offences and issued process against them which is challenged in the case. 4. It is contended by the learned counsel for the petitioners that there was civil dispute between the parties and the petitioner no.1 is an advocate of Koraput Bar Association and petitioner no.2 is a teacher in the Government High School and just to harass and humiliate them, a false complaint petition has been filed. 5. Law is well settled that even after submission of final report, on a protest petition being filed, the Court can treat such protest petition as complaint petition and can proceed with the matter as laid down under Chapter-XV of the Cr.P.C. The observation of the investigating officer that a false case has been filed by the complainant due to the fact that she was in inimical terms with the petitioners cannot be a ground to dismiss the complaint case, if the Magistrate after perusing the complaint petition, initial statement and statements collected under section 202 Cr.P.C. finds that prima face case for taking cognizance of offences and for issuance of process against the accused persons is made out. Therefore, the first contention of the learned counsel for the petitioners that since final report has been submitted after due investigation, the learned Magistrate should not have taken cognizance of offences on the basis of the protest petition is not accepted. 6. Coming to the second contention raised that there was long standing civil dispute between the parties for which just to harass and humiliate the petitioners, a false case has been foisted cannot be a ground to quash the complaint case proceeding inasmuch as it is well known that enmity is a double edged weapon and often it provides a motive for false implication but it also provides motive and incentive for the accused to commit the crime. 7. 7. Learned counsel for the petitioners has not filed either the initial statement of the complainant or the statements of the witnesses recorded under section 202 of Cr.P.C. On going through the complaint petition which has been filed by the complainant, I find that there are prima facie materials to take cognizance of offences under sections 354/506/34 of the Indian Penal Code and as such the learned Court below has not committed any illegality in passing the impugned order and therefore, I am not inclined to invoke inherent power under section 482 of Cr.P.C. to interfere with the impugned order. 8. Accordingly, the CRLMC application stands dismissed. 9. Liberty is granted to the petitioners to raise the contentions at the time of framing of charge which shall be duly considered by the learned Trial Court without being influenced by any observation made in this order.