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2018 DIGILAW 387 (ORI)

Sunamani Roul v. State of Orissa

2018-04-09

S.K.SAHOO

body2018
JUDGMENT : S.K. SAHOO, J. This is an application under section 482 of Cr.P.C. filed by the petitioner Sunamani Roul challenging the impugned order dated 31.01.2006 passed by the learned J.M.F.C., Salipur in G.R. Case No. 319 of 1999 in taking cognizance of offences under sections 302/304-A/34 of the Indian Penal Code and section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter “S.C. & S.T. (PA) Act”) and issuance of process against him. 2. It is the prosecution case that on 04.07.1999 night at about 9.30 p.m., the accused Dhruba Charan Roula along with his wife Sanjua @ Sanjukta Roula committed murder of the deceased Madhab @ Madhaba Mallick at Paschimakhandabhola near his house by forcibly pushing the deceased to the charged electric line which was taken unauthorizedly from the house of accused Kuna @ Ratnakar Padhi and thereby the deceased came in contact with electric current. The wife of the deceased namely Geeta Mallik lodged the first information report before the officer in charge of Salipur police station, on the basis of which Salipur P.S. Case No. 160 of 1999 was registered on 06.07.1999. During course of investigation, prima facie material was found against the accused persons Sunamani Roula and Sanjukta Roula for offence punishable under sections 302/34 of the Indian Penal Code and for offence under section 304-A of the Indian Penal Code against accused Kuna @ Ratnakar Padhi and accordingly, they were forwarded to Court but ultimately, on conclusion of investigation, prima facie case under sections 302/34 of the Indian Penal Code and section 3 of S.C. & S.T. (PA) Act was found against the accused persons Sanjukta Roula and Dhruba Charan Roula and offence under section 304-A of the Indian Penal Code was found against the accused Kuna @ Ratnakar Padhi and accordingly, charge sheet was submitted against three accused persons namely Kuna @ Ratnakar Padhi, Smt. Sanju @ Sanjukta Roula and Dhruba Charan Roula on 11.11.1999 under sections 302/304-A/34 of the Indian Penal Code and section 3 of SC & ST(PA) Act and thereafter, the case record was sent with charge sheet to the Court of learned Sessions Judge -cum-Special Judge, Cuttack. It is specifically mentioned in the charge sheet that no evidence under sections 302/304-A/34 of the Indian Penal Code and section 3 of the S.C. & S.T. (PA) Act was made out against the petitioner whose name might have been added by the informant due to enmity. 3. Even though no charge sheet was submitted against the petitioner but when the matter was placed before the learned Sessions Judge -cum-Special Judge, Cuttack on 18.11.1999, the learned Court passed following the order:- “Charge sheet under sections 302/304-A/34 of the Indian Penal Code and under section 3 S.C./S.T. (PA) Act is received against the accused persons namely 1) Kuna @ Ratnakar Padhi, 2)Smt. Sanjua @ Sanjukta Roul and 3) Dhruba Roul. Cognizance is taken against all the accused persons namely 1)Sunamani Roul, 2) Sanjua @ Sanjulata Roul, 3) Kuna @ Ratnakar Padhi and 4) Dhruba Roul under sections 302/34 of the Indian Penal Code and section 3 SC/ST (PA) Act.” Subsequently in view of the ratio laid down by the Hon’ble Supreme Court in case of Gangula Ashok -Vrs.-State of Andhra Pradesh reported in (2000) 18 Orissa Criminal Reports (SC) 364, the record of the case was sent back to the Court of learned J.M.F.C., Salipur. On receipt of such record and as per the order of the learned Special Judge, Cuttack dated 18.11.1999, cognizance of offence was taken under sections 302/304-A/34 of the Indian Penal Code and section 3 of the S.C. & S.T.(PA) Act by the learned J.M.F.C., Salipur on 31.01.2006 and process was issued against the three charge sheeted accused persons as well as the petitioner. 4. Mr. Satya Ranjan Mulia, learned counsel for the petitioner contended that when charge sheet clearly reveals that there is no material against the petitioner for the alleged offences under sections 302/34 of the Indian Penal Code and section 3 of S.C. & S.T.(PA) Act and charge sheet was submitted against three co-accused persons only, without assigning any reason, it was not proper on the part of the learned Special Judge to issue process against the petitioner after taking cognizance of offences and also for the learned J.M.F.C., Salipur to follow that order and passing the impugned order and issuing process against the petitioner. It is contended that the impugned order suffers from non-application of mind and accordingly invoking inherent power under section 482 Cr.P.C., the same should be quashed. Mr. It is contended that the impugned order suffers from non-application of mind and accordingly invoking inherent power under section 482 Cr.P.C., the same should be quashed. Mr. Arupananda Das, learned Addl. Govt. Advocate on the other hand supported the impugned order and submitted that there is no dearth of power of the Magistrate or with the Special Judge to take cognizance of the offences and issued process against the non-charge sheeted persons if materials on record indicate prima facie case against such persons. 5. In case of M/s. India Carat Pvt. Ltd. -Vrs.-State of Karnataka reported in A.I.R. 1989 SC 885, it is held that upon receipt of a police report under Section 173(2) of Cr.P.C., a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order issue of process to the accused. Section 190(1)(b) of the Code does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) of the Code and direct the issue of process to the accused. In case of Union of India -Vrs.-Prakash P. Hinduja reported in (2003) 26 Orissa Criminal Reports (SC) 243, it is held that Magistrate is not bound to accept the final report (sometimes called as closure report) submitted by the police and if he feels that the evidence and material collected during investigation justify prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by Section 190 Cr.P.C. In case of Uma Shankar Singh -Vrs.-State of Bihar reported in (2010) 47 Orissa Criminal Reports 633, it is held that law is well settled that even if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance there upon in exercise of his powers U/s. 190(1)(b) Cr.P.C. In that case the investigation had been handed over to the C.I.D. and both the C.I.D. and the local police had submitted their reports in final form exonerating the petitioner of the allegations made against him in the F.I.R. However, the Chief Judicial Magistrate took cognizance of the offence U/s. 302/379 of the Indian Penal Code and Section 25 of the Arms Act against the petitioner. The Hon’ble Court held that this is not a case where the Magistrate took recourse to any further inquiry but took cognizance on the police report itself, which he was entitled to do U/s. 190(1)(b) Cr.P.C. 6. In view of the settled position of law, I am of the humble view that even if the Investigating Officer files charge sheet against some accused persons and was of the view that no case was made out against other persons, if after examination of the case records and taking into account the statements of the witnesses examined by the police during investigation, the Magistrate feels that some non-charge sheeted persons are required to be proceeded against as there are also prima facie materials against them, he can pass such order giving his reasons thereon. 7. In the present case, when the charge sheet was first placed before the learned Special Judge, the learned Special Judge took note of the fact that charge sheet has been submitted only against Kuna @ Ratnakar Padhi, Smt. Sanjua @ Sanjukta Roula and Dhruba Roula. After perusing the same, in the next line he mentioned about taking cognizance not only against the three charge sheeted accused persons but also against the petitioner. When as per the Gangula Ashok case (supra), the matter was remitted back to the learned J.M.F.C., Salipur, he just followed the order of the learned Special Judge, Cuttack dated 18.11.1999 and passed the impugned order. When as per the Gangula Ashok case (supra), the matter was remitted back to the learned J.M.F.C., Salipur, he just followed the order of the learned Special Judge, Cuttack dated 18.11.1999 and passed the impugned order. On perusal of both the orders, it appears that no reasons have been assigned as to why the Court thought it proper to issue process against the petitioner in spite of the fact that the Investigating Officer was of the opinion that no material under sections 302, 304-A/34 of the Indian Penal Code and section 3 of the S.C. & S.T. (PA) Act was made out against the petitioner whose name might have been added by the informant due to their enmity. 8. Law is well settled that reasons introduce clarity in the order and it is an indispensable part of sound judicial system. Setting forth reasons howsoever brief in the order is indicative of application of judicial mind. Reasons should be clear and explicit. It indicates fair play in action and also rules out the possibility of leveling the order as arbitrary and whimsical. When the investigating officer has not submitted charge sheet against the petitioner and the Magistrate wants to ignore the conclusion arrived at by the investigating officer and defer from the opinion of the investigating officer, it was very much necessary on his part to give some reasons, even brief in nature to show as to why he was disagreeing with the report submitted by the investigating officer and issuing process against the non-charge sheeted petitioner. Since the impugned order passed by the learned J.M.F.C., Salipur shows inscrutable face of the sphinx and no reasons are there either in the impugned order or in the order dated 18.11.1999 of the learned Special Judge, Cuttack which the learned Magistrate has followed and there is no prima facie material against the petitioner relating to commission of the offences under which the charge sheet has been submitted, I am of the view that it was not proper on the part of the learned Magistrate to proceed against the petitioner. 9. Therefore, in my humble opinion the impugned order suffers from non-application of mind and accordingly, invoking inherent power under section 482 of Cr.P.C., I quash the impugned order so far as the petitioner is concerned. 9. Therefore, in my humble opinion the impugned order suffers from non-application of mind and accordingly, invoking inherent power under section 482 of Cr.P.C., I quash the impugned order so far as the petitioner is concerned. Needless to say that if during course of trial, any clinching materials come against the petitioner regarding his involvement in the case, the learned trial Court is at liberty to invoke its power under section 319 of Cr.P.C. to proceed against the petitioner in accordance with law. Accordingly, the CRLMC application is allowed.