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2018 DIGILAW 82 (ORI)

Bipin Sahu v. Kumari Nirupama Bagarti

2018-01-15

D.P.CHOUDHURY

body2018
ORDER 15.01.2018 Heard the learned counsel for the petitioner and learned Addl. Standing counsel. In spite of notice being made sufficient, none appears for opposite party no.1. 2. This is an application under Section 482 Cr.P.C. to quash the order of taking cognizance for the offence under Section 376, IPC dated 2.9.2005 passed by the learned S.D.J.M., Titilagarh in ICC Case No. 18 of 2005 against the petitioner. 3. Mr. Jairaj Behera, learned counsel for the petitioner submitted that the victim woman had filed an F.I.R. before IIC, Titilagarh Police Station, basing on which Titilagarh P.S. Case No. 41 of 2003 was registered and investigation proceeded. The police after investigation since found that no case is made out against the accused, submitted final form. But the victim-woman filed protest petition in the shape of a complaint. Learned Magistrate without applying judicial mind, did not proceed to make enquiry under Section 202, Cr.P.C. in spite of the request of the victim-woman. At the same time, he took cognizance for the offence under Section 376, IPC and issued process against the petitioner. 4. Learned counsel for the petitioner further submitted that such order of taking cognizance is illegal and improper because of non-observation of mandatory procedure as enshrined under Section 202, Cr.P.C. before issuance of process where the alleged offence is triable by the Court of Session. According to him, the protest petition is always treated as compliant and the moment it is a complaint, the procedure as prescribed for proceeding with the complaint must be adhered to. Since the learned Magistrate has failed to apply judicial mind and passed the order of taking cognizance under Section 376, IPC and issued process against the petitioner, the same should be quashed. 5. Learned Addl. Standing Counsel submitted that the learned Magistrate after going through the F.I.R. and the statement of the witnesses recorded in the G.R. Case instead of accepting the final form, has opined that there is prima facie case for the offence under Section 376, IPC and as such, took cognizance of the said offence. According to her, the impugned order passed by learned Magistrate is correct and legal. 6. Considered the submission of the learned counsel for the respective parties. It is admitted fact that G.R. Case No. 103 of 2003 was initiated on the F.I.R. lodged by the victim-woman. According to her, the impugned order passed by learned Magistrate is correct and legal. 6. Considered the submission of the learned counsel for the respective parties. It is admitted fact that G.R. Case No. 103 of 2003 was initiated on the F.I.R. lodged by the victim-woman. The allegation was that in one occasion during 2002 the petitioner committed rape upon the victim-woman and continued to commit the said offence after having intimidated her. In due course, the victim-woman became pregnant and when she requested the petitioner to marry, the petitioner avoided the said request and stopped visiting the victim. However, the police after investigation submitted final form. Thereafter, the petitioner filed protest petition, which was registered as ICC Case No. 18 of 2005. It appears that after the statement of the complainant was recorded, the Magistrate decided to hold enquiry under Section 202, Cr.P.C. On 2.9.2005 he passed the following order. “The complainant is absent. Advocate for the complainant filed a petition for time to produce the witnesses U/s. 202, Cr.P.C. Perused the case record. In this case the complainant has filed a petition protesting the final form submitted by the I.O. There is no reason to allow the petition for inquiry U/s. 202, Cr.P.C. So, the petition is rejected. Put up later for inquiry into 202, Cr.P.C. Complainant is absent. No witness is produced for inquiry U/s. 202, Cr.P.C. No further enquiry is necessary in view of the protest petition to the final form. Put up later for orders. Xxx” 7. The aforesaid order clearly shows that the learned Magistrate has changed his mind not to hold enquiry under Section 202, Cr.P.C. in view of the protest petition to the final form submitted by the complainant. Finally on the same day, learned Magistrate after going through the F.I.R. and other statements recorded by the police, took cognizance of the offence under Section 376, IPC. 8. Sub-Section (1) of Section 202, Cr.P.C. reads thus: 202. Postponement of issue of process. Finally on the same day, learned Magistrate after going through the F.I.R. and other statements recorded by the police, took cognizance of the offence under Section 376, IPC. 8. Sub-Section (1) of Section 202, Cr.P.C. reads thus: 202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made, —— (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. 9. The aforesaid provision clearly shows that when the Magistrate decides to proceed against the petitioner, he is to make enquiry into by himself or direct for investigation by a police officer or by any other persons, but direction for investigation would not be made if the offence complained of is exclusively triable by the Court of Session as per proviso (a) to Section 202(1), Cr.P.C. In the present case, since the alleged offence is triable by the Court of Session, he has taken opinion that enquiry is not to be held. It is not clear as to why in the last moment, he dropped the procedure for adopting to hold enquiry under Section 202, Cr.P.C. Perhaps, it has occurred to his mind that since final form has been submitted, the Magistrate can take cognizance of the offence after going through the police papers. But it is settled in law that any protest petition filed to the final form is to be treated as complaint filed by the informant or the victim. Once it has been treated as a complaint, the procedure for disposal of the complaint is to be followed. So, the question of again reverting to take a view on the materials available on the police papers, is unnecessary. Once it has been treated as a complaint, the procedure for disposal of the complaint is to be followed. So, the question of again reverting to take a view on the materials available on the police papers, is unnecessary. Once the procedure for complaint is gone through, enquiry under Section 202, Cr.P.C. is mandatory as it is an offence triable by the Court of Session. 10. In terms of the above discussion, the order taking cognizance appears to be not legal and proper. Hence, it is quashed. But at the same time, the matter is remitted back to the learned Magistrate, who would follow the enquiry under Section 202, Cr.P.C. and pass necessary orders whether to proceed against the petitioner or not. It is made clear that this Court has not opined anything on the merits of the case and the learned Magistrate is at liberty to proceed in accordance with law on the material produced before him after completion of enquiry under Section 202, Cr.P.C. The entire exercise is to be completed within a period of two months from the date of receipt of this order. 11. With the aforesaid observation, the CRLMC stands disposed of. Registry is directed to convey the order immediately. CRLMC disposed of.