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2018 DIGILAW 17 (ORI)

Gouranga Charan Nayak v. Adikanda Nayak

2018-01-02

S.K.SAHOO

body2018
JUDGMENT : S. K. SAHOO, J. 1. Heard Mr. Subash Chandra Acharya, learned counsel for the petitioners. 2. None appears on behalf of the opposite party no.1 Adikanda Nayak. 3. This is an application under section 482 of Cr.P.C. filed by the petitioners Gouranga Charan Nayak and Paramananda Nayak challenging the impugned judgment and order dated 19.11.2005 passed by the learned Addl. Sessions Judge, Jagatsinghpur in Criminal Revision No.19 of 2005 in allowing the revision and setting aside the order dated 19.04.2005 passed in I.C.C. Case No.38 of 2004 by the learned S.D.J.M., Jagatsinghpur and thereby directing the learned S.D.J.M., Jagatsinghpur to take cognizance of offences under sections 341/323 of the Indian Penal Code against the petitioners. 4. It appears that the opposite party no.1 Adikanda Nayak filed a complaint petition in the Court of learned S.D.J.M., Jagatsinghpur which was registered as I.C.C. Case No.38 of 2005 against five accused persons including the petitioners and after institution of the complaint petition, the initial statement of the complainant was recorded under section 200 of Cr.P.C. and then the learned Magistrate conducted inquiry contemplated under section 202 of Cr.P.C. in which two witnesses namely Brambhananda Nayak and Santilata Nayak were examined and thereafter, the learned S.D.J.M., Jagatsinghpur vide order dated 19.04.2005 has been pleased to hold that the enquiry witnesses Santilata who is the wife of the complainant alleged about the assault to her by accused Gouranga, her husband’s elder brother which is nowhere alleged in the contents of the complaint petition or in the statements of the remaining witnesses and therefore, no prima facie case for the alleged offenses are made out. Accordingly, the complaint petition was dismissed under section 203 of Cr.P.C. 5. The complainant challenged the aforesaid order before the revisional Court and the learned Addl. Sessions Judge, Jagatsinghpur has been pleased to hold that on analysis of the entire materials available on record, prima facie case for offence of wrongful restraint and voluntarily causing hurt to the complainant by the accused persons like the petitioners on the alleged date of incident is made out and it was further held that the cognizance ought to have been taken under sections 341/323 of the Indian Penal Code against the petitioners without dismissing the complaint petition and accordingly, the impugned judgment was passed. 6. Mr. 6. Mr. Subash Chandra Acharya, learned counsel for the petitioners contended that the petitioners and the complainant are related to each other and there was civil dispute between the parties for which a false case has been foisted against the petitioners. Learned counsel for the petitioners further submitted that on a plain reading of the complaint petition as well as the initial statement of the complainant and the statements collected during course of inquiry would reveal that there are material discrepancies in the evidence and since the offences are minor in nature, minor contradictions also assume much importance and therefore, the learned S.D.J.M., Jagatsinghpur was quite justified in dismissing the complaint petition and the learned revisional Court should not have assessed the evidence meticulously at that stage and come to a different conclusion particularly when there was no perversity in the approach of the learned S.D.J.M., Jagatsinghpur. 7. Section 203 of Cr.P.C. relates to dismissal of the complaint petition which can be on three grounds, in the first place, if the Magistrate upon the statements made by the complainant and his witnesses finds no offence has been committed, in the second place, if he distrusts the complainant and his witnesses’ statements and in the third place, if he conducts an inquiry or directs for an investigation under section 202 Cr.P.C. and considering the result of the inquiry or investigation coupled with the statements of the complainant and his witnesses, he is satisfied that there is no sufficient ground for proceeding against the accused. ‘Sufficient ground’ used in section 203 of Cr.P.C. is not for the purpose of conviction but it means whether a prima facie is made out against the person sought to be summoned. To prevent utilization of the Court for any oblique purpose, the Court has got ample power to dismiss the complaint petition at the threshold, if it finds lack of sufficient ground for proceeding. The discrepancies in the evidence of the witnesses should not be meticulously judged but when it is a case of minor offence which arises in the background of civil dispute, there can be no illegality by doing a little bit of shifting to come to a conclusion regarding non-availability of prima facie case. 8. The discrepancies in the evidence of the witnesses should not be meticulously judged but when it is a case of minor offence which arises in the background of civil dispute, there can be no illegality by doing a little bit of shifting to come to a conclusion regarding non-availability of prima facie case. 8. After perusal of the lower Courts record, the complaint petition, the initial statement of the complainant and the statements collected during course of inquiry, it appears that the parties are related to each other and there was civil dispute between the parties. 9. Since after doing a little bit of shifting, the learned Magistrate came to hold that there is no prima facie case under the alleged offences, therefore, I am of the view that the learned S.D.J.M., Jagatsinghpur has not committed any illegality in dismissing the complaint petition. The revisional Court seems to have gone beyond the scope of revisional jurisdiction and assumed the role of a first Appellate Court in weighing and assessing the evidence on record without judging the correctness, legality or propriety of the order passed by the learned Magistrate. Therefore, the revisional Court’s order passed by the learned Addl. Sessions Judge, Jagatsinghpur dated 19.11.2005 is not sustainable in the eye of law and the same is hereby set aside and the order dated 19.04.2005 passed by the learned S.D.J.M., Jagatsinghpur is restored. Accordingly, CRLMC application is allowed.