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2018 DIGILAW 119 (ORI)

Pratap @ Pratap Kumar Nayak v. Guni Bewa

2018-01-29

S.K.SAHOO

body2018
JUDGMENT : S.K. Sahoo, J. This is an application under section 482 of Cr.P.C. filed by the petitioners Pratap @ Pratap Kumar Nayak and his wife Shanti Nayak @ Shantipriya Nayak challenging the impugned order dated 29.06.2005 of the learned J.M.F.C., Nimapara passed in I.C.C. case No. 52 of 2005 in taking cognizance of offences under sections 354, 447, 294, 506, 323, 34 of the Indian Penal Code against petitioner no.1 Pratap @ Pratap Kumar Nayak and under sections 447/294/506/323/34 of the Indian Penal Code against petitioner no.2 Shanti Nayak @ Shantipriya Nayak and issuance of process against them. 2. On the first information report of opp. party Guni Bewa dated 30.11.2002, Kakatpur P.S. Case No. 142 of 2002 was registered under sections 294, 336, 337, 338, 323, 354, 506, 34 of the Indian Penal Code against four accused persons including the petitioners. After completion of investigation, charge sheet was submitted only under section 323 of the Indian Penal Code against the petitioner no.1 only. 3. The opp. party being aggrieved by filing of charge sheet under such offence, instituted a complaint case in the Court of learned J.M.F.C., Nimapara which was registered as I.C.C. Case No. 52 of 2005. After filing of such complaint petition, the initial statement of the complainant was recorded and the learned J.M.F.C., Nimapara conducted inquiry contemplated under section 202 of Cr.P.C. and two witnesses were examined. After perusing the complaint petition, initial statement of the complainant, the statements of the witnesses under section 202 of Cr.P.C., the learned Magistrate passed the impugned order. 4. The contentions raised by Mr. Gourav Mohanty, learned counsel for the petitioners while challenging the impugned order are that the ingredients of the offence under section 354 of the Indian Penal Code are not attracted against the petitioner no.1 Pratap Nayak on the available materials on record and when charge sheet has not been submitted for such offence, it was not proper on the part of the learned Magistrate to take cognizance of such offence. It is further contended that the ingredients of the offences under sections 447/294 of the Indian Penal Code are also not attracted and therefore, the impugned order should be quashed. 5. Learned counsel for the complainant-opp. Party supported the impugned order. 6. It is further contended that the ingredients of the offences under sections 447/294 of the Indian Penal Code are also not attracted and therefore, the impugned order should be quashed. 5. Learned counsel for the complainant-opp. Party supported the impugned order. 6. So far as the taking cognizance of the offence under section 354 of the Indian Penal Code is concerned, the complaint petition clearly indicates that the petitioner no.1 dragged the saree of the complainant and made her naked. The complainant in her initial statement has also stated that the petitioner no.1 abused her and dragged her saree and made her undressed. The two witnesses who have been examined in the inquiry contemplated under section 202 Cr.P.C. namely Priyabrata Swain and Umakanta Swain have also stated that the petitioner no.1 dragged the wearing apparels of the complainant and made her naked. Therefore, the contention of the learned counsel for the petitioners that there is no prima facie material against the petitioner no.1 for taking cognizance of offence under section 354 of the Indian Penal Code cannot be accepted. Merely because charge sheet was not submitted for such offence even though the F.I.R. was registered under such offence, when the complaint petition has been filed being aggrieved by the conduct of the Investigating Officer in submitting charge sheet only under section 323 of Indian Penal Code against the petitioner no.1, it cannot be said that the Magistrate lacks power to proceed against the petitioner no.1 in the complaint petition, if prima facie material comes out for commission of any such offence and also against some other accused who has not been named in the charge sheet. 7. Coming to the second contention of the learned counsel for the petitioners that there is dearth of materials for commission of offences under sections 447/294 of the Indian Penal Code as the Bari in question was in joint possession of the parties and that the obscene language was not uttered in a public place, on going through the materials available on record, it is apparent that nobody has stated about the joint possession of the Bari in question by the complainant as well as the petitioners. If any such aspect is brought on record during trial by adducing proper evidence, the same shall be appreciated by the learned trial Court in accordance with law. If any such aspect is brought on record during trial by adducing proper evidence, the same shall be appreciated by the learned trial Court in accordance with law. Similarly, so far as the offence under section 294 of the Indian Penal Code is concerned, the abusive words are stated to have been hurled as appears from the evidence of the witnesses as well as in the complaint petition. The place of occurrence prima facie appears to be an open space which is close to the public place and therefore, it cannot be said that the ingredients of the offence are not prima facie attracted. 8. Since all the contentions raised by the learned counsel for the petitioner are not acceptable, I am not inclined to invoke my inherent power under section 482 of Cr.P.C. to quash the impugned order. 9. Accordingly, CRLMC application being devoid of merits, stands dismissed. 10. The lower court records which have been received be sent back immediately.