Sarat Chandra Behera And Others vs State Of Orissa
2013 Latest Caselaw 3715 Del

                    ORISSA HIGH COURT: CUTTACK


                            CRLMC No. 532 of 2002

      In the matter of an application under Section 482 of the Code of
      Criminal Procedure.
                                   ----------

Sarat Chandra Behera and others ......... Petitioners

-versus-

State of Orissa ......... Opposite Party

For petitioners : M/s. B. Routray, D.K. Mohapatra, B.N. Satpathy, B.B.Routray & D.Mund.

For opp. party : Sk.Zaffrulah, Addl. Standing Counsel

PRESENT:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing: 16.08.2013 | Date of Judgment: 23.08.2013

Dr. B.R.Sarangi, J. The petitioners have filed this application under Section

482, Cr.P.C. seeking to quash the order dated 19.04.1996 passed by

the learned J.M.F.C.(P), Kujang in G.R. Case No. 438 of 1995 taking

cognizance of the offences under Sections 147/148/307/341/427/

323/336/337/332/ 188/149, IPC and under Section 7 of Criminal Law

Amendment Act read with Section 3 of PDP Act.

2. The prosecution case, as revealed from the F.I.R., is

that one Surajit Das, O.A.S. Addl. Tahasildar and Executive Magistrate

lodged the information that while he was under law and order duty in

connection with gherao organized by a section of local fishermen

protesting against the lease of Saharpentha Machhadia Sairat to

Kalinga Karnadhar Fishermen Primary Cooperative Society. The D.S.P.,

Paradeep, C.I. Tirtol and O.I.C., Kujang Police Station with staff and

women constable were detailed inside the Tahasil office premises. At

about 11.30 A.M. a procession of the fishermen around 1500 including

20-30 ladies led by Govind Tarai and Rabi Dalai came in front of

Tahasil office shouting slogan against the Tahasildar, Kujang for

leasing out the said sairat. Four sections of O.S.A.P. were on cordon

duty in front of Tahasil office building and rest of the 4 APR staffs were

on two gates to prevent the mob from entering inside the Tahasil

office. The mob, which was very much agitated, shouted at the top of

their voice and all off a sudden pushed back the staff and both the

gates and started to break the cordon to enter into the Tahasil office

building. Sincere steps were taken to pacify the mob restraining them

from such unlawful activities. As female folk with their kids in arms

were in front of the mob apprehending stampede to lady members no

police action could be initiated. Breaking the cordon, the mob forcibly

went inside verandah of Tahasil office and committed serious mischief

by breaking the door and window panes and chairs. As a preventive

measure, order under Section 144 Cr.P.C. was promulgated

announcing that the mob was unlawful and warned them to disperse.

Then the mob started brick batting over the police personnel and staff.

One of the miscreants from close vicinity directly threw a heavy stone

aiming at the head of S.D.P.O., Paradeep, which hit the roof of right

ears as a result he fell down. They were shouting to kill police and due

to such heavy brick batting and pelting of stones, the informant, C.I.,

Tirtol and other police personnel sustained severe injuries. As there

was no chance of escape from death and grievous hurt, the zamadar

in charge of OSAP was ordered for tear gassing. Though three

grandees and six LR shells were fired but it was not effective due to

against wind. The mob continued through brickbats, and finding no

other alternative, to escape from the attack by the mob, order for mild

lathi charge below the waist was given after due warning as a result of

which mob dispersed and nine accused persons, namely, Govinda

Tarai, Jasindranath Parida, Narayan Samal, Akshya Samal, Rama

Chandra Parida, Tapan Majhi, Biday Rout, Hari Behera and Arjuni

Behera were apprehended. Most of them were injured by brick batting.

3. On the basis of the F.I.R. lodged on 08.09.1995, police

took up the investigation and G.R. Case No. 438 of 1995 was

registered in the court of the learned J.M.F.C., Paradeep, Kujang. On

the basis of the investigation, 11 accused persons were arrested and

cognizance of offence under Sections 147/148/ 307/341 /427/323

/336 /337 /332/188/149, IPC and under Section 7 of Criminal Law

Amendment Act read with Section 3 of PDP Act was taken. The

persons who were apprehended moved the court of Sessions Judge,

Cuttack in Criminal Misc. Case No. 967 of 1995 seeking for grant of

bail, which was considered and the learned Sessions Judge observed

that the offence in which the petitioners are allegedly involved does

not end in capital punishment and the materials collected against the

petitioners to implicate them with the offence under Section 307 IPC is

not sufficient, as disclosed from the case diary so far prepared by the

I.O. and therefore ordered to release all the petitioners on bail of

Rs.5000/- cash with one surety each for the like amount to the

satisfaction of the learned J.M.F.C., Kujang with the condition that the

petitioners after being released on bail shall not leave the court

jurisdiction of Kujang without prior permission of the court and enter

appearance twice in a month on 15th and 30th before the O.I.C.,

Kujang till completion of the investigation.

4. After the investigation was over, police submitted

charge-sheet against Gobinda Tarai and 18 others for the offence

under Sections 147/148/ 307/341 /427/323 /336 /337 /332/188/149,

IPC and Section 7 of Criminal Law Amendment Act read with Section 3

of PDP Act, on the basis of which, the learned J.M.F.C., Paradeep,

Kujang took cognizance on 19.04.1996 and issued summons to the

accused persons already bailed out and N.B.Ws. against the

absconding accused persons for their appearance on 22.05.1996.

5. Three out of the 19 persons against whom cognizance

was taken, approached this Court by filing Criminal Misc. Case No.

2341 of 1996 with a prayer to quash the order of taking cognizance

dated 19.04.1996 in G.R. Case No. 438 of 1995. When the said matter

was pending for adjudication, the petitioners made a mention that

since their names do not find place in the charge-sheet, the criminal

misc. case may kindly be disposed of. Accordingly, this Court by order

dated 14.7.2000 dismissed the said criminal misc. case as infructuous

on the statement made by the counsel appearing for the petitioners.

Subsequently, the petitioners filed Misc. Case No. 2180 of 2002 arising

out of Criminal Misc. Case No. 2341 of 1996 to recall and to modify

the order dated 14.7.2000, which was considered and disposed of by

this Court vide order dated 8.5.2003 observing that there is no

provision in the Cr.P.C. for modification of an order dismissing an

application under section 482 Cr.P.C. for which this Court was not

inclined to entertain the said application and accordingly rejected Misc.

Case No. 2180 of 2002 arising out of Criminal Misc. Case No. 2341 of

1996 filed to recall or to modify the order dated 14.7.2000.

6. It is stated that the petitioners had moved an

application for anticipatory bail under Section 438 Cr.P.C. before the

learned Sessions Judge. The learned Sessions Judge, in his order

dated 18.9.1995 found that no material is available against the

petitioners to connect them in the alleged offence. Learned Sessions

Judge while considering the anticipatory bail application in Misc. Case

No. 1045 of 1995 found that there is absolutely no material on record

to implicate them and accordingly passed the order on 18.10.1995.

But when the petitioners came to know that they have been shown as

absconder in G.R. Case No. 438 of 2005, they immediately applied for

certified copy of the order dated 19.04.1996 on 7.6.2002 in which

they have been implicated as accused No.17, 18 and 19 and N.B.Ws.

have been issued showing them absconder.

7. It is brought to the notice of this Court by the learned

counsel appearing for the petitioners that separate application has

been filed under section 482 Cr.P.C. for separate cause of action while

considering the Misc. Case No. 2180 of 2002, which is the culmination

of the present Criminal Misc. Case. The order dated 19.4.1996 taking

cognizance passed by the learned J.M.F.C., Kujang in G.R. Case No.

438 of 1995 has been challenged on the ground that the offence

alleged is triable by court of Session and the Magistrate has

jurisdiction to add or substract the persons as accused persons and

the only duty of the Magistrate is to commit the case to the Court of

Session after receiving the record from the police for framing of charge

and to commence the trial on that score. It is stated that the

Magistrate has exceeded his jurisdiction, therefore the order dated

19.4.1996 passed by the learned J.M.F.C.(P) Kujang in G.R. Case No.

438 of 1995 should be quashed.

8. Learned counsel appearing for the petitioners

vehemently urged that when the names of the petitioners did not find

place either in the F.I.R. or in the charge sheet, the subsequent

addition of their names for taking cognizance by the court is absolutely

misconceived one and therefore the proceeding initiated as against

them should be quashed.

9. Mr. Zafarullah, learned Addl. Standing Counsel states

that even after charge sheet was submitted, subsequent facts can

also be taken into consideration and on the basis of materials available

on record, the Magistrate can implicate the persons and take

cognizance by issuing summons.

10. It is the case of the petitioners that their names having

not found place in the charge sheet, the earlier Criminal Misc. Case

No. 2341 of 1996 was dismissed as infructuous. Subsequently it is

found that the Magistrate while taking cognizance implicated their

names on considering the materials available on record. It may be

noted that, law is well settled that Magistrate is not bound by the

police document and records and if subsequent materials would be

made available, on that basis the Magistrate has got the jurisdiction to

take cognizance. In view of such position, if subsequent disclosure

indicates that the petitioners were the participants in the incident

occurred and they have been implicated as parties and being

absconders, N.B.Ws have been issued for their appearance by taking

cognizance no fault can be found with such order. In the present case,

the Magistrate has not committed any error or illegality so as to invoke

the jurisdiction of this Court in exercise of power under Section 482,

Cr.P.C. to quash the order of taking cognizance. The action taken by

the Magistrate is within the framework of law and as such, the

impugned order taking cognizance against the petitioners is wholly and

fully justified and needs no interference at this stage. Accordingly, the

CRLMC is dismissed.

11. In view of the aforesaid facts and circumstances, I am

not inclined to interfere with the order dated 19.4.1996 passed by the

learned J.M.F.C., Kujang in G.R. Case No. 438 of 1995 taking

cognizance of the offence against the petitioners. Accordingly, the

CRLMC is dismissed.

12. Since the G.R.Case is of the year 1995, the learned

J.M.F.C. (P), Kujang is directed to commit the case to the Court of

Session forthwith, as the offences alleged are triable by Court of

Session. On receipt of the same, the learned Sessions Court shall do

well to dispose of the same expeditiously.

........................................

Dr.B.R.Sarangi, J.

Orissa High Court, Cuttack The 23rd August, 2013/Ashok