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2019 DIGILAW 430 (ORI)

Sayed Anwar Ali v. Premalata Satpathy

2019-07-02

A.K.MISHRA

body2019
ORDER : A.K. Mishra, J. 1. Heard learned counsel for the petitioner and learned Addl. Government Advocate Mrs. S. Pattnaik for opposite party No. 2. None appears for petitioner No. 1. 2. In this proceed U/s. 482 Cr.P.C. prayer has been made to quash the proceeding in I.C.C. Case No. 122 of 2010 pending in the court of learned S.D.J.M., Jagatsinghpur on the ground that for the self same occurrence, the complainant had filed one complaint which was sent U/s. 156(3) Cr.P.C. and after investigation charge-sheet was submitted resulting another proceeding. 3. Learned counsel for the petitioner submits that after submission of charge-sheet in G.R. Case No. 561 of 2003 cognizance was taken on 2.4.2004 of the offences U/ss. 447, 264, 323 and 34 I.P.C. and subsequent filing of another complaint on the self same facts is contrary to law. 4. From perusal of the order dtd. 13.05.2010 in I.C.C. Case No. 122 of 2010 it is evident that learned S.D.J.M., Jagatsinghpur has treated that complaint as protest against G.R. 561 of 2003. 5. On 14.07.2010 learned S.D.J.M. on complaint took cognizance of offences U/ss. 447, 323, 294, 354, 506/34 I.P.C. and passed order which runs thus :- "Date-14.7.2010. - Record is put up today. Initial statement of the complainant was recorded on 1.7.2010. Complain has been made U/s. 447/298/323/294/354/506/34 of I.P.C. against the accused persons namely Sayad Anwar Ali Islam @ Papa, Babulu and Hiralal. There is prima facie materials made out against the accused persons except the offence U/s. 298 of the I.P.C. So, Cognizance of the offences U/s. 447/323/294/354/506/34 of the I.P.C. is taken. G.R. No. 561/2003 as per Section 210(2) of Cr.P.C." 6. On 02.08.2010 the following order is passed:- "The complainant files petition praying to issue process against the accused. He files a memo of citation note (2002) (Supp.) O.L.R. 581. He argued at length. Perused the G.R. The order dtd. 13.5.2010 reveals the direction to put G.R. No. 561 of 2003 along with I.C.C. Case No. 144 of 2003. On Careful scrutiny it is found that the I.C.C. No. 114 of 2006 was sent U/s. 156 Cr.P.C. which later on protested and C.S. file on 24.2.2004. Subsequently complaint petition of same nature was filed vide I.C.C. No. 122 of 2010. 13.5.2010 reveals the direction to put G.R. No. 561 of 2003 along with I.C.C. Case No. 144 of 2003. On Careful scrutiny it is found that the I.C.C. No. 114 of 2006 was sent U/s. 156 Cr.P.C. which later on protested and C.S. file on 24.2.2004. Subsequently complaint petition of same nature was filed vide I.C.C. No. 122 of 2010. On protest after receiving the summon for evidence as stated on the complaint petition the honourable court held citation given by the learned counsel at para-3 as follows:- "It is also settled principle that the complaint case and the G.R. case can be tried together as if both the cases were instituted on a police report. Where the accused persons and offences alleged as same in the complaint case as well as G.R. Case." From the above verdict as well as this case on hand itself, it is clear that it is to be tried together U/s. 210(2) Cr.P.C. Hence the plea of complainant is foul and he is no way prejudice by tagging the G.R. As such it stands rejected." 7. The opposite party No. 1 has filed one affidavit of which para-7 runs as follows:- "7. That, the facts stated in Para-5 are correct to the extent that being aggrieved by the deficiency in the investigation and submission of charge sheet, favoring the accused persons, the opposite party No. 1 after receiving witness summon in G.R. Case No. 561 of 2003 once again filed protest petition in the form of I.C.C. Case which was registered as I.C.C. No. 122 of 2010 and the learned S.D.J.M. was pleased to conduct inquiry and after completion of inquiry, took cognizance of offences against all the accused persons (present petitioners) U/s. 447, 294, 323, 354, 506/34 I.P.C. Since both the cases are arising out of the self same occurrence, the learned S.D.J.M. has rightly directed for trial of both the cases together." 8. From the above, it is clear that the subsequent complaint was filed for the self same occurrence and it was treated by the court as protest but the order dtd. 14.07.2010 does not disclose as to which facts the protest was made. Section 210 Cr.P.C. does not contemplate for parallel proceeding to continue on similar facts against same accused persons. 9. 14.07.2010 does not disclose as to which facts the protest was made. Section 210 Cr.P.C. does not contemplate for parallel proceeding to continue on similar facts against same accused persons. 9. However, the Magistrate has treated the subsequent complaint as a protest but by then he had already taken cognizance of offences on the police report. No new accused person was implicated. When no notice was issued either to complainant/informant/aggrieved, on the police report and the Magistrate took cognizance, the filing of a separate complaint at the stage of trial amounts to abuse of the process of the Court. Illegality is committed when the subsequent complaint was taken as protest petition and after taking cognizance was ordered to be clubbed U/s. 210(2) Cr.P.C. 10. Hence the continuance of second complaint as a separate proceeding and then resorting to Section 210(2) Cr.P.C. is not proper. The question of prejudice by tagging is not relevant when the procedure adopted is contrary to the Law. 11. Because of above illegality, the proceeding in I.C.C. Case No. 122 of 2010 needs to be quashed. Accordingly the same is hereby quashed. 12. The CRLMC is accordingly allowed. 13. Urgent certified copy as per rules.