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2020 DIGILAW 112 (ORI)

Harihar Panda v. State of Odisha

2020-05-15

S.PUJAHARI

body2020
ORDER : S. Pujahari, J. 1. The accused-petitioner has filed this application under Section 482 of Cr.P.C. seeking for setting aside the order dated 26.02.2019 passed by the learned Special Judge, Rayagada in C.T. No. 61 of 2018, and for quashment of the proceeding of the said case. 2. The case aforesaid corresponds to Rayagada P.S. Case No. 98 dated 19.05.2018 registered for alleged commission of offences under Sections 341, 294, 323, 353 and 506 of IPC and Section 3(1)(s) of the S.C. & S.T. (PoA) Act, 1989 (as amended), pursuant to the report of Sri Prafulla Kumar Naik, Range Officer, Kalyansingpur Forest Range, forwarded to the police by the Divisional Forest Officer (DFO), Rayagada Division It is alleged that on 10.05.2018 at about 11.30 a.m. while the D.F.O. was conducting a meeting of the Range Officers in his Office Chamber at Rayagada, the petitioner entered the said Chamber, misbehaved with the D.F.O. by uttering abusive words and indulged in other overt acts and when the Informant - Range Officer, who happens to be a member of Scheduled Caste, intervened, the petitioner abused him with caste aspersion, thrashed the table, threw away official files, and while giving threat he also assaulted the Informant. It is further alleged that the petitioner after coming out of the Chamber of the D.F.O. and while wandering on the office verandah, also uttered abusive words naming the caste of the Informant, and thereby insulted and humiliated the Informant in presence of officials. 3. Admittedly, the petitioner is not a member of Scheduled Caste or Scheduled Tribe community while the Informant - Range Officer is a member of Scheduled Caste community. Sri R.K. Das, SDPO, Rayagada took up investigation and on completion of investigation, submitted charge-sheet against the accused-petitioner under Sections 341, 294, 323, 353 and 506 of IPC and Section 3(1)(s) of the S.C. & S.T. (PoA) Act, 1989. It may be mentioned here that for the incident that allegedly took place inside the Chamber of the D.F.O. at the relevant time, on the basis of the report lodged by the D.F.O. prior to the present report, there is another case vide Rayagada P.S. Case No. 84 dated 10.05.2018 corresponding to G.R. Case No. 196 of 2018 in the court of the S.D.J.M., Rayagada, in which charge-sheet has already been submitted against the present petitioner under Sections 448, 294, 323, 353 and 506 of IPC. 4. In the present case, i.e., C.T. No. 61 of 2018, the accused-petitioner moved an application under Section 227 of Cr.P.C. before the learned Special Judge, Rayagada seeking for discharge. The said petition was rejected vide the order dated 26.02.2019 and charge has been framed by the Court below against the petitioner under Sections 341, 294, 323, 353 and 506 of IPC and Section 3(1)(s) of the S.C. & S.T. (PoA) Act, 1989 in C.T. No. 61 of 2018. 5. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the State. 6. The order of the learned Court below framing charge against the accused-petitioner for the offences indicated above, is challenged by the petitioner basically on two grounds, such as, (i) registration of a second* case or initiation of a second prosecution for the selfsame occurrence is contrary to the law; and (ii) no charge under Section 3(1)(s) of the S.C. & S.T. (PoA) Act could have been framed in absence of any material that the alleged abusive utterance was "within public view". It is the contention of the learned counsel for the petitioner that the very basis of the present proceeding lacks legitimacy inasmuch as for the selfsame occurrence there cannot be a second F.I.R. and that since in the report that was lodged at the first point of time by the D.F.O. did not reveal-any accusation to attract the S.C. & S.T. (PoA) Act, a second case has been created by way of concoction and deliberation to put the petitioner behind the Bar. Relying on some case laws, the learned counsel further submitted that even taking the F.I.R. in the present case at his face value, no offence under Section 3(1)(s) of the S.C. & S.T. (PoA) Act can be said to have been made out so as to frame charge thereunder. 7. Learned Addl. Standing counsel appearing for the State, however, repudiates the contention of the petitioner on the ground that since the learned Court below has framed charge on taking into consideration the materials produced by the prosecution, and this being not a stage to delve into the question of probative value of the prosecution case or to resort to any analytical study of the materials on record, this Court should not interfere with the order of charge passed by the Court below. 8. 8. A report lodged under Section 154 of Cr.P.C. and commonly known as First Information Report (for short "F.I.R.") sets the criminal law into motion, when a cognizable offence is alleged to have been committed. The name "F.I.R." self signifies that it is lodged at the first point of time after a cognizable offence is alleged to have been committed. To put in other words, there may be a second report, but there cannot be a second F.I.R. The second report, if any, is not to be treated as a report, but a statement under Section 161 of Cr.P.C. A plain reading of the F.I.R. in G.R. Case. No. 196 of 2018 in juxta-position with the report (treated as F.I.R.) forming basis of the present case, i.e., C.T. No. 61 of 2018 leaves no room of doubt that both the reports relate to the common incident which occurred in the Office Chamber/Office premises of the D.F.O., Rayagada on 10.05.2018 at 11.30 a.m. This has been mentioned in the F.I.Rs. of both the cases. The F.I.R. in G.R. Case No. 196 of 2018 corresponding to P.S. Case No. 84 of 2018 was lodged on 10.05.2018 whereas the report (F.I.R.) in C.T. No. 61 of 2018 corresponding to P.S. Case No. 98 of 2018 was received at the Police Station on 19.05.2018, i.e., with a delay of nine days. The F.I.R. lodged by the D.F.O. giving rise to registration of the first case, i.e., P.S. Case No. 84 of 2018 recites, inter-alia, that the accused-petitioner abused the present Informant with caste aspersion. The relevant part of the said F.I.R. may be extracted here below for better appreciation:- "xxxx xxxxx Then bitter exchange of words happened between Sri P.K. Nayak, I/c Range Officer, K. Singpur Range when he alleged him in caste line and abused that you people were looting Govt. money etc Then he moved out of my office chamber and started scolding me in unparliamentarily languages outside near to my chamber in presence of field staffs and office staffs. Inside my chamber and outsider he threatened me, you don't know Hari Panda and you will face severe consequences. He was shouting at me that I am a local man and I will kill you." 9. As it appears, the F.I.R. lodged by the D.F.O. made a reference to the whole incident which took place inside as well as outside his Chamber. He was shouting at me that I am a local man and I will kill you." 9. As it appears, the F.I.R. lodged by the D.F.O. made a reference to the whole incident which took place inside as well as outside his Chamber. It also mentioned about the alleged abusive and humiliating utterance made by the accused at him as well as the petitioner, in presence of other official staff. 10. Needless to mention that F.I.R. is not required to be exhaustive in nature with all details of the incident. It is the Investigating Officer who is to go deep into the incident on collecting the detailed facts and materials in accordance with the procedural ways and means. He is required to record the statements of the victims and/or witnesses under Section 161 of Cr.P.C., but not to invite or act upon any second report for the selfsame incident Of course, when the report or information which is received in the Police Station at the first point of time, falls short of materials to reveal commission of cognizable offence, there may be a second report which is to be treated as F.I.R. But, merely because the first report was rightly or wrongly not registered for any particular offence, for the reason of absence of any accusation thereunder or for any other reason, cannot be a ground to accept a successive report to be treated as a separate F.I.R., for registration of a new case for the selfsame incident. It is also not the law that the report regarding a cognizable offence should always be lodged by the victim but none else. Keeping the above in view; this Court finds merit in the contention of the learned counsel for the petitioner that registration of the report of Sri Prafulla Kumar Naik as F.I.R. giving rise to a second case, i.e., P.S. Case No. 98 dated 19.05.2018 suffers from incurable procedural impropriety causing prejudice to the petitioner who is the common accused in both the cases. 11. Notwithstanding the observation as above, the second contention of the petitioner is taken up for consideration. Following are the essential constituents of the offence under Section 3(1)(s) of the S.C. & S.T. (PoA) Act.- (i) The accused is not a member of Scheduled Caste or Scheduled Tribe. (ii) The Informant/Victim is a member of Scheduled Caste or Scheduled Tribe. 11. Notwithstanding the observation as above, the second contention of the petitioner is taken up for consideration. Following are the essential constituents of the offence under Section 3(1)(s) of the S.C. & S.T. (PoA) Act.- (i) The accused is not a member of Scheduled Caste or Scheduled Tribe. (ii) The Informant/Victim is a member of Scheduled Caste or Scheduled Tribe. (iii) The Accused abused the Informant/Victim by caste name in any place within public view [emphasis supplied]. 12. The incident of abuse may occur at a place, either a public place or a private place, but within public view. The expression "within public view" necessarily means that the incident was viewed by public. The abusive utterance, if not viewed by the public, cannot qualify to be an offence under Section 3(1)(s) of the S.C. & S.T. (PoA) Act. 13. Now reverting to the case at hand, the F.I.R. specifies the names of the witnesses who are no other than some forest officials or departmental colleagues of the Informant. There is nothing in the F.I.R. to suggest that any member of public viewed the incident. The staff of the office of the D.F.O. or the departmental colleagues of the Informant cannot be treated as members of the public for the purpose of Section 3(1)(s) of the S.C. & S.T. (PoA) Act In this context, a reference may be made to Ratikanta Ray Vs. State of Orissa, reported in (2015) 61 OCR 217 : 2015 (1) OLR 917 . The allegations as revealed from the FIR, therefore, can not attract Section 3(1)(s) of the S.C. & S.T. (PoA) Act. 14. For the total discussion made hereinbefore, this Court is of the opinion that the very inception of the prosecution being legally not sustainable, continuance of the proceeding of the case will be an abuse of the process of the Court. Hence, in exercise of the inherent power under Section 482 of Cr.P.C., this Court hereby quashes the charge framed against the petitioner as well as the consequential proceeding of C.T. No. 61 of 2018 before the Court below. 15. Accordingly, this CRLMC stands disposed of being allowed.