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2021 DIGILAW 336 (ORI)

Babuli Rout v. State Of Odisha

2021-08-04

S.PUJAHARI

body2021
ORDER 1. This is an application filed under Section 482 of Cr.P.C. seeking for quashing of the proceeding in I.C.C. No.60 of 2018 and the order of cognizance dated 07.01.2019 passed therein by the learned Gram Nyayadhikari-cum-J.M.F.C., Odagaon. 2. Heard the learned counsel for the parties and perused the relevant papers on record vis-a-vis the impugned order. 3. Background facts may be stated in precision as follows:- The opposite party no.2 herein lodged a written report with police on 19.06.2018 alleging, inter-alia, that the petitioner no.1 on giving a marriage proposal to her continued love affairs with her for a period of about two years, and that on 29.03.2016 while she was alone at her home, the petitioner no. 1 came to her house and on giving promise of marriage committed sexual intercourse on her and thereafter he left for his place of service, and at that point of time he had presented to the opposite party no.2 a SIM card, his one photograph and one handkerchief, and thereafter he remained in contact with her over phone and raised protest whenever a marriage proposal came to her from any other source. It was further alleged by the opposite party no.2 vide the said report (FIR) that on 15.06.2018 the petitioner no.1 had come to the village, and as per the prior assurance given, on 18.06.2018 the petitioner no.1 invited her to his house for discussion regarding marriage, and that when she went there, the petitioner nos.2 to 7 confined the petitioner no.1 in the house and then they abused and assaulted her. As further averred, there was a village meeting on the incident, and that although the village gentries suggested for marriage, the petitioner no.1 and his father did not agree. On the basis of the report aforesaid which was treated as F.I.R. and a case was registered by police corresponding to G.R. Case No. 185 of 2018 under Sections 493/417/294/323/506/34 of IPC against the present petitioner nos. 1 to 7 and on completion of investigation, police submitted charge-sheet against the petitioner no.1 under Sections 493/417/34 of IPC and against the petitioner nos.2 and 4 under Sections 294/323/506/34 of IPC. As it further appears, the learned J.M.F.C. on the basis of the charge-sheet so submitted by police took cognizance of the aforesaid offences against the present petitioner nos.1, 2 and 4 in G.R. Case No. 185 of 2018. As it further appears, the learned J.M.F.C. on the basis of the charge-sheet so submitted by police took cognizance of the aforesaid offences against the present petitioner nos.1, 2 and 4 in G.R. Case No. 185 of 2018. As it further appears, while the police investigating in the aforesaid G.R. case was pending, the opposite party no.1 filed a complaint registered as I.C.C. No.60 of 2018 before the Court below for the selfsame incident and the learned J.M.F.C. proceeded therewith separately without following the procedure as laid down under Section 210 Cr.P.C, and vide the order dated 07.01.2019 took cognizance of the offence under Sections 376/354/294/323/506/34 of IPC against all the present petitioners. 4. It is the contention of the learned counsel for the petitioners that the order of cognizance passed by the learned J.M.F.C. giving rise to a proceeding parallel to the G.R. Case can not be sustained in law, inasmuch as the same is in utter violation of the provision under Section 210 of Cr.P.C. causing grave prejudice to the petitioners. It is submitted by him that the complaint has been filed by the opposite party no.2 with malafides for wreaking her vengeance, and the learned J.M.F.C. proceeded with the same in a mechanical manner without applying his prudence and judicial mind. The learned counsel for the petitioners has cited several case laws to buttress his contention. 5. It is, however, submitted by the learned counsel for the opposite parties that non-adherence to the provision under Section 210 of Cr.P.C. being ipso facto not fatal to the proceeding, and both the G.R. case and complaint case being open to be committed to the Court of Session for being tried by the same Court and decided together as per the evidence to be adduced, this Court should not interfere with the impugned order at the present stage of the proceeding. Section 323 of Cr.P.C. is referred to in the context. 6. Admittedly, for the same incident the opposite party no.2 approached the police with a written report, and subsequently the Court below with a complaint. In the complaint itself it was disclosed that the matter was already with police and Final Form in the G.R. case was yet to be submitted. 6. Admittedly, for the same incident the opposite party no.2 approached the police with a written report, and subsequently the Court below with a complaint. In the complaint itself it was disclosed that the matter was already with police and Final Form in the G.R. case was yet to be submitted. To put in other words, the learned J.M.F.C. was aware by the date of filing of the complaint that in relation to the incident alleged an investigation by the police was in progress. Yet, owing to ignorance or oblivion he did not resort to Section 210 of Cr.P.C. which takes care of such a situation. He ought to have stayed the proceeding of the complaint case and called for / awaited the report of investigation under Section 173 of Cr.P.C. from the police. As it appears, while proceeding with the complaint and passing the order impugned, the learned J.M.F.C. has not cited any reason as to why he maintained the proceeding parallel to the G.R. case, and the order passed by him on 15.05.2019 pursuant to a petition filed by the present petitioners purportedly under Section 210 of Cr.P.C, also does not reveal any valid ground to ignore the provision under the said Codal provision. As to the aim and object of this section and implication of its non-adherence, the Apex Court in the case of Dilwar Singh vrs. State of Delhi, reported in AIR 2007 S.C. 3234 , held as follows:- " xxxxxxx xxxxx The principle has been statutorily recognized in Section 210 of the Cr.P.C. which enjoins upon the Magistrate, when it is made to appear before him either during the inquiry or the trial of a complaint, that a complaint before the police is pending investigation in the same matter, he is to stop the proceeding in the complaint case and is to call for a report from the police. After the report is received from the police, he is to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint case along with the G.R. Case as if both the cases are instituted upon police report. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions of Section 210, Cr.P.C, are mandatory in nature. The aim of the provision is to safeguard the interest of the accused from unnecessary harassment. The provisions of Section 210, Cr.P.C, are mandatory in nature. It may be true that non-compliance of the provisions of Section 210, Cr.P.C, is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr.P.C, unless error, omission or irregularity has also caused the failure of justice and in determining the fact whether there is a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings, xxxxx xxxxxx" 7. In the case at hand, in the facts and circumstances depicted, the contention of the petitioners that owing to the impugned order of cognizance passed in disregard to the provision under Section 210 of Cr.P.C. they have been seriously prejudiced, can not be ignored. The complainant cited the reason for filing the complaint that police registered her F.I.R. for some less serious offences, and apparently in the complaint she gave a twist to her earlier version made in the F.I.R. which had been lodged with police at the first point of time. This Court at this stage does not feel it proper and necessary to deliberate upon that aspect, but feels to mention that the judicial process can not be allowed to be used as an instrument of oppression against anybody. In the oft-quoted decision of the Apex Court in the case of State of Haryana and others vrs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335, certain circumstances have been laid down under which the High Court in exercise of jurisdiction under Section 482 of Cr.P.C. can quash the proceeding. The present case appears to have been covered under the 7th circumstance stated therein which is as under:- "7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 8. In view of the discussion made hereinbefore, this Court finds it to be a fit case for exercise of the jurisdiction under Section 482 of Cr.P.C. Hence, this CRLMC stands allowed. In view of the discussion made hereinbefore, this Court finds it to be a fit case for exercise of the jurisdiction under Section 482 of Cr.P.C. Hence, this CRLMC stands allowed. The impugned order of cognizance and the consequential proceeding in I.C.C. No.60 of 2018 before the Court below stands quashed. Urgent certified copy of this order be granted on proper application.