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2018 DIGILAW 515 (ORI)

Gobardhan Sahu v. Tulasi Sethy

2018-05-05

D.P.CHOUDHURY

body2018
JUDGMENT Dr. D.P. CHOUDHURY, J. - Challenge has been made to the order of taking cognizance dated 09.09.2004 for commission of offence under Sections 323/294/506 of the Indian Penal Code (in short “IPC”) read with Section 3(1)(x) of the S.C./S.T. (PoA) Act and issuance of process against the petitioners by the learned S.D.J.M., Anandapur in I.C.C. Case No. 99 of 2004. FACTS: 2. The unshorn details of the prosecution is that on 23.07.2004, the complainant had gone to the place, namely, Kaliagonda for pasturing the goats. On that date, at about at 10.00 A.M., the petitioners were there in their brinjal farm. When they saw the complainant, petitioner nos. 1 and 2 gave a push blow to her chest and abused in filthy language. They also assaulted her with fist blows, slaps and by means of Bahungi. When the witnesses saw the occurrence, they came to her rescue. Due to interference allegedly have committed criminal intimidation. The police was intimated but the matter could not proceed. So, the complaint was filed. Enquiry under Section 202 Cr.P.C. was held and learned Magistrate, after going through the material, took cognizance of the offences as aforesaid. SUBMISSIONS: 3. Mr. D.N. Pattanaik, learned counsel for the petitioners submits that there is a counter case filed by the sister of the petitioner nos. 1 and 2 against the complainant vide G.R. Case No. 98 of 2004 and there is also proceeding under Section 107 Cr.P.C. but the said fact has not been noticed by the learned Court below. 4. Learned counsel for the petitioners further submits that when the F.I.R. was lodged, the complaint and the petitioners were called to the police station but the police did not take any action which shows that there is no prima facie case against the petitioners and this case has been filed falsely. Thus, learned Magistrate, without application of judicial mind, took cognizance of the offences and issued process against the petitioners for which the same is liable to be quashed. 5. In spite of valid service of notice, the opposite party complainant did not appear. 6. Considered the submissions of the learned counsel for the petitioners. Perused the impugned order dated 9.9.2004 which is as follows:- “Sl. No. 8/Dt. 9.9.2004 Complainant is present. The record is put up for order. 5. In spite of valid service of notice, the opposite party complainant did not appear. 6. Considered the submissions of the learned counsel for the petitioners. Perused the impugned order dated 9.9.2004 which is as follows:- “Sl. No. 8/Dt. 9.9.2004 Complainant is present. The record is put up for order. Perused the complaint petition as well as statement U/s. 200 and 202 Cr.P.C. There is prima facie to proceed the case against the accused persons U/s. 302/294/506 I.P.C./3(i)(X), S.C./S.T. Act. Accordingly Cog. Under the said is taken against the accused Gobardhan Sahu, Sanatan Sahu and Maina Sahu. Issue summons to them fixing case to 27.9.2004 for appearance. Complainant to file requisites and process fee within three days.” 7. The complaint petition shows that on the date of occurrence, the petitioners abused the complainant in filthy language stating that “SALI DHOBANI KAHINKI AMBHA BHAUNI KI RAKHICHU. TOTE JIBANRU MARIDEBU. SALI TO GANDIRE BETA PURAI MARIDEBU” and then petitioners assaulted with fist blows, slaps and further assaulted by means of Bahungi. When the witnesses intervened, the petitioners went away but threatened her to cause assault. The initial statement of the complainant corroborated the complaint. The statements of the P.Ws. 1 and 2 also corroborate the statement of the complainant about the use of obscene language and assaulted by a push blow and by Bahungi. The statement of P.W.3 only shows that the petitioners dragging the complainant has assaulted her but did not state about the manner of assault. The statement of the witnesses and statement of the informant do not disclose that whether hurling of obscene language by the petitioners were made at public places to prove one of the ingredients of Section 294 of IPC. Similarly, the allegation of the complainant and statement of the witnesses do not disclose that whether the petitioners got hurt so as to prove one of the ingredients of Section 323 of IPC. Apart from this, the statement of the complainant and other witnesses do not disclose the manner of threatening by the petitioners because mere threatening to kill without any overt act cannot prove the ingredient of Section 506 of IPC. There is no evidence led by the complainant to show that she was alarmed by the overt act of the petitioners so as to prove another ingredients of Section 506 of IPC. 8. There is no evidence led by the complainant to show that she was alarmed by the overt act of the petitioners so as to prove another ingredients of Section 506 of IPC. 8. Ingredients Section 3(1)(x) of the S.C./S.T. (PoA) Act is as follows:- “(x) intentionally insults or intimidates with intent to humiliate a member of a Schedule Caste or a Schedule Tribe in any place within public view; “ From the evidence of the complaint and other witnesses, there is nothing found that the occurrence took place within the public view so as to attract one of the ingredients of Section 3(1)(x) of the S.C./S.T. (PoA) Act. 9. In terms of the above discussion, it appears that all the ingredients of Sections 323/294/506/ of IPC read with Sections 3(1)(x) of S.C./S.T. (PoA) Act have been proved prima facie to find out prima facie case against the present petitioners. 10. It appears that after the complaint is filed, learned Magistrate has not denied to send it for registration and investigation of the case by the police under Section 156(3) Cr.P.C. when there is allegation for the offence under Section 3(i)(x) of S.C./S.T. (PoA) Act, the investigation should be made by the police not below the rank of D.S.P. Although the learned Magistrate has jurisdiction to receive the complaint and proceed in accordance with the provision of Section 202 Cr.P.C. because it is an offence triable by the Court of Session but more truth will come out when investigation is made by the police. So, in the instant case, since no efforts has been made by the learned Magistrate to send it to the police for investigation under Section 156(3) of Cr.P.C., the order of taking cognizance has not propriety. 11. In terms of the above discussion, since the learned Magistrate has not applied the judicial mind to the material on record and taken cognizance of the offences and issuance of process against the petitioners, the impugned order is liable to be quashed and the Court do so. In the result, the CRLMC is disposed of accordingly. The L.C.R. be remitted back forthwith. The interim order dated 25.3.2009 passed in Misc. Case No. 1843 of 2004 stands vacated. CRLMC disposed of.