Orissa High Court
(An Application Under Section 482 ... vs State Of Odisha on 23 December, 2022
IN THE HIGH COURT OF ORISSA : CUTTACK.
CRLMC No. 3828 of 2015
(An Application under Section 482 of
the Code of Criminal Procedure, 1973)
Dibakar Sahani
Mahadeipur Village
Gurandi P.S.
Gajapati District ... Petitioner
VERSUS
State of Odisha
& Another ... Opposite parties
Advocates appeared in the case:
For Petitioner : Mr. Soubhagya Kumar Dash,
Advocate
For Opposite Party No.1 : Mr. Ishwar Mohanty,
Additional Standing Counsel
For Opposite Party No.2 : None
CORAM:
JUSTICE MURAHARI SRI RAMAN
JUDGMENT
23.12.2022
Murahari Sri Raman, J.
1. The petitioner, aggrieved by Order dated 13th May, 2015
passed by the learned SubDivisional Judicial Magistrate,
Paralakhemundi (herein after be referred to as "SDJM") in I.C.C.
No.47 of 2014 taking cognizance of offence under Sections
294/420/406/506, Indian Penal Code, 1860 (for brevity, "IPC"),
approached this Court with the petition under Section 482 of the
Code of Criminal Procedure, 1973 (for short referred to as
"CrPC") with the following prayer(s):
"*** to admit this CrlMC, call for the record issue
notice to the opposite parties and upon hearing be further
pleased to allow this application and set aside the
impugned Order dated 13.05.2015 passed by the learned
Sub-Divisional Judicial Magistrate, Paralakhemundi in
I.C.C. No.47 of 2014."
Facts of the case:
2. The opposite party No.2Smt. Gurubari Kuntia of
Basundhara, Meliaputti Mandalam, Meliaputti P.S. in the District
of Srikakulam (Andhra Pradesh), motherinlaw, lodged complaint
against the petitioner before the learned SDJM, registered as ICC
No.47/2014, to the effect that though her daughterSunita led
conjugal life after solemnization of marriage, the petitioner
demanding more dowry tortured her and ultimately Sunita
succumbed to mental and physical torture and died on 29.08.2008.
It is alleged by her that the petitioner has murdered Sunita. On
complaint being made and charge framed, the petitioner stood trial
for offence under Sections 498A/302/304B, IPC read with Section
4 of the Dowry Prohibition Act, 1961. After the Judgment dated
17.07.2010 rendered by the learned Additional Sessions Judge,
Parlakhemundi, with conclusion that the prosecution could not
establish the charge under neither Sections 498A/304B/302, IPC
nor Section 4 of the Dowry Prohibition Act, and the petitioner
accused was found "not guilty" of any of the aforesaid offences
alleged, the motherinlaw, Smt. Gurubari Kuntia, lodged
complaint before the learned SDJM, Parlakhemundi under Section
200, CrPC that the petitioner was approached on 02.09.2014 to
return utensils and other articles, which were presented by her, but
to no avail. Hence, the complaint petition has been filed on 18th
September, 2014 before said SDJM with a prayer to take
cognizance of offences under Sections 294/323/420/406, IPC
against the petitioner.
2.1. After taking initial statement of complainant on 18.09.2014,
and conducting further inquiry under Section 202 of CrPC, the
learned SDJM recorded statement of a cousin of the complainant
on 28.10.2014. Accordingly, on 13th May, 2015, cognizance of
offences has been taken under Sections 292/420/406/506, IPC
against the accusedpetitionerDibakar Sahani.
The contentions of the petitioner in the present case:
3. Except household articles, the petitioner had never
demanded dowry, rather he led happy marital life being married to
Sunita, the daughter of the opposite party No.2, but to his
misfortune his wife succumbed to burn injury. A false case was
foisted by his motherinlaw out of frustration. However, in trial
before the learned Additional Sessions Judge, Paralakhemundi,
Gajapati in ST No.41/2008 (arising out of G.R. Case No.113/2008
in connection with Paralakhemundi P.S. Case No.59/2008), vide
Judgment dated 17.07.2010 he was acquitted with the following
observation:
"15. Now taking note of the entire scenario and the
evidence of both side witnesses it is seen that there is a
strong possibility that the deceased committed suicide when
her husband suspected her fidelity. She was a young house
wife and she was in carrying condition. Parents were then
very old and the brothers got married. So she became very
sensitive looking to the conduct of her husband and under
such circumstances she took such a harsh decision to finish
her life and she done it. The relations when rushed to the
spot on hearing the incident from the accused got extremely
annoyed to see the charred body and so out of vengeance
and hatredness they made allegation of bride burning for
dowry. The police officer believed their statements and
instead of following the strict procedure of honest
investigation did the investigation in biased manner. So
whatever the circumstances may be a change of homicidal
murder is found not established beyond reasonable doubt.
16. Hence in conclusion after careful
consideration of the evidence given by the prosecution and
the defence plea and the arguments made by both sides
lawyers I found that the prosecution has not established any
of the charges under Section 498A/304B/302, IPC or the
charge under Section 4 of the D.P. Act. So the accused is
found not guilty of any of the aforesaid charges and so he is
acquitted of all these charges. He be set at liberty forth with
from the jail if there is no other case pending against him."
3.1. The petitioner also contended that during course of
investigation of aforesaid G.R. Case No.113/2008 arising out of
Paralakhemundi P.S. Case No.59/2008, when the I.O. visited the
spot and examined the witnesses, seizure of articles were effected
and consequent thereto statement of Sri Balaram Khuntia in
vernacular (Odia) was recorded on 12.05.2008 (Annexure6).
Translated version in English of such statement reads thus:
"Statement of Balaram Khuntia (30) son of Damodar
Khuntia of Village Basundhara, P.S.: Meliaputty, District:
Srikakulam, recorded under Section 161, Cr.P.C. in PKL
P.S. Case No.59/2008 under Section 302/304B, IPC
My name is Balaram Khuntia (30) years, son of
Damodar Khuntia, Village: Basundhara, District:
Srikakulam. This is my oral statement before the S.I. of
Gurandi Police Station that on being furnished, said S.I.
has seized a photograph of Sunita and Dibakar from Murali
Khuntia and a list of dowry articles. The seizure is effected
at around 9 a.m. in the morning. Knowing that the list of
seizure is correct, I have put my signature."
3.2. It is fact on record that after the Judgment in the trial before
the learned Additional Sessions Judge being concluded and
Judgment being pronounced in the year 2010 acquitting the
petitioner, the opposite party No.2 took another four years to foist
another case wherein the learned SDJM has taken cognizance of
offences under Sections 292/420/406/506, IPC against the
petitionerDibakar Sahani, which is abuse of process of law.
3.3. On the face of the record when the statement of Balaram
Khuntia is clear and loud to the effect that the articles claimed to
be given as dowry to the petitioner were seized by the S.I. of
Guranda Police Station, the learned SDJM has mechanically
exercised his power by taking cognizance of offence under
Sections 292/420/406/506, IPC against the accusedDibakar
Sahani.
Contention of the Additional Standing Counsel for the State-
opposite party No.1:
4. Save and except stating that the learned SDJM after
conducting due enquiry had taken cognizance of offence under
Sections 292/420/406/506, IPC against the petitioner and
cognizance being taken after due application of mind with
reference to material available on record, he is required to face the
trial.
Discussion:
5. This Court while issuing notice in the matter, vide Order
dated 01.09.2015 passed the following interim order:
"As an interim measure, the further proceeding
in ICC Case No.47 of 2014 pending before the learned
Sub-Divisional Judicial Magistrate, Paralakhemundi
shall remain stayed till next listing.
Put up this matter on 05.10.2015."
5.1. It is noticed that notice for admission being issued to the
opposite party No.2 by registered post with acknowledgement
due, the same got served on "Gurubari Kuntia" on 15.09.2015.
However, none appeared for the said party as on date.
5.2. Going through the Judgment dated 17.07.2010 of the
learned Additional Sessions Judge reveals that the trial in ST Case
No.41/2008 (arising out of commitment of G.R. Case
No.113/2008 made by the learned SDJM on 01.10.2008) was
under Section 4 of the Dowry Prohibition Act, 1961 apart from
offences under Sections under 498A/302/304B, IPC, wherein the
following was the observation:
"6. On the allegation under Section 4 of the
D.P. Act in the body of the FIR which is proved as
Ext.3 nothing has been mentioned. The informant
Murali as P.W. 7 in the cross-examination denied that
he omitted to speak about dowry demand and its
acceptance by the accused but on plain reading of the
Ext.3 it is seen that actually such fact is not at all
mentioned and for this initially the police had not
registered any case under Section 498A, IPC. The
P.W.1 is the wife of the informant whereas the P.W.2 is
the old mother of the informant and the deceased and
the P.W.8 is the brother in law of the informant who
deposed in the court that the accused on demand
received Rupees 75,000 at the time of marriage but
after some months of the marriage they came to know
from the deceased that her husband such as the
accused was again demanding Rupees 20,000 as
dowry. They also deposed that when they could not
able to give such additional dowry the deceased was
subjected to torture and assault by the accused
husband. All of them are confronted with their
previous statements before the IO that they have not
stated about such allegation. The IO such as the P.W.
16 when subjected to cross-examination is not
confronted with the court statements of these witnesses
with their 161 Cr.P.C. statements recorded by him.
But the IO deposed in the cross-examination that he
had not seized any dowry articles except a list vide
Ext.4/4. On this aspect it is seen that the said list was
handed over to the I.O. by the complainant on
12.05.2008 after 13 days of filing of the FIR and there
is no explanation that as to why such a delay was there
in producing such document had been there with the
informant right from the beginning. It creates doubt
that such a document might have been created for the
case later on to heighten a case under Section 4 of
D.P. Act. This apprehension is quite reasonable that
no independent witnesses deposed in the court
including the priest such as P.W.13 that there was
dowry demand and acceptance before him when he
performed the marriage. The mediator of the marriage
is not examined by the prosecution. There is no
evidence that on the point of dowry demand there was
ever any caste or village meeting. So the evidence of
the relation witnesses in the court which is found to be
developed by them in course of the trial brands them
as tainted witnesses on this aspect of the prosecution
case. On this aspect I am following the settled position
of law as decided by the Hon'ble Supreme Court in the
matter between Baladin and others Vrs. State of U.P.,
reported in AIR 1956 SC at page 181 which is followed
by the Hon'ble Division Bench of Orissa High Court in
the matter between Premananda Sahu and others Vrs.
State of Odisha. Here a case under Section 4 of D.P.
Act is found not established beyond reasonable
doubt."
5.3. When the said Judgment was passed way back in the year
2010 holding that the opposite parties failed to prove the case
under the provisions of the Dowry Prohibition Act, after about 4
years therefrom at the behest of motherinlaw of the petitioner,
the ICC No.47/2014 has been launched under Sections
294/420/406/506, IPC, as the petitioner refuted to return the
articles of dowry and he turned down the request of the
complainant by using abusive words. It is noteworthy to refer to
orders dated 18.09.2014 and 16.12.2014 as passed by the learned
SDJM in said ICC No. 47/2014 prior to taking cognizance:
"Sl. No.1 dtd. 18.09.2014
Complaint petition under Section 200, Cr.P.C. is filed
by the above named complaint against the accused persons
cited in her complaint petition through her advocate Sri R.
Babu Rao who filed power for the complainant.
Vakalatnama is accepted. Verified and Register. Statement
of complainant is recorded in the opposite side of complaint
petition. Case is posted to 25.09.2014 for enquiring under
Section 202, Cr.P.C.
Sl. No.7 dtd. 16.12.2014
Advocate for complainant files hazira. The
record is put up today for order on cognizance.
Perused the case record, the complaint petition initial
statement of the complaint, statement of witness
under Section 202, Cr.P.C. the documents submitted
by the complainant etc. The complainant has filed
this case on the allegation of misappropriation of
dowry articles by the accused persons, which were
given to her daughter during her marriage. Some
photographs of the marriage of the victim have also
been filed.
Subsequently, the daughter of the complainant
was murdered, as alleged by the complainant and a
case was filed against the accused persons. However,
charge sheet was submitted by police against accused
Dibakar Sahani under Section 302/498A/304B, IPC /
4 D.P. Act.
The Xerox copy of charge sheet filed by the
complainant shows that the I.O. did not seize the
dowry articles during submission of the charge sheet
and mentioned in the charge sheet that he will seize
the same later on. So, it is not clear, whether he has
seized the dowry articles in this case or not.
Hence, call for the record from the J/C, Record
Room, Parlakhemundi in G.R. 113/08, if available,
along with the concerned Session case record, after
which order on cognizance can be passed. Put on
03.01.2015 awaiting for the record."
5.4. After perusal of documents available on record and taking
into consideration the statements recorded in the matter in course
of enquiry under Section 202 of the Cr.P.C. on complaint under
Section 200, the learned SDJM recorded his prima facie
satisfaction with respect to offences under Sections
294/420/406/506, IPC against Dibakar Sahani and accordingly,
cognizance was taken on 13.05.2015. It cannot be stated that there
was mechanical application or nonapplication of mind while
taking cognizance.
5.5. Under the aforesaid premise, it is found that cognizance in
ICC No.47/2014 has been taken by the SDJM with due
consideration to the material record.
Provisions of CrPC and reference to case laws:
6. Section 482 of the Cr.P.C provides for "Saving of inherent
powers of High Court". Said provision lays down that
"Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice."
6.1. It has been wellsettled that even though, the inherent power
of the High Court under Section 482 of the Cr.P.C., to interfere
with criminal proceedings is wide, such power has to be exercised
with circumspection, in exceptional cases. Jurisdiction under
Section 482 of the Cr.P.C is not to be exercised for the asking.
The Hon'ble Supreme Court of India in the case of Lakhwant
Singh Vrs. Jasbir Singh and Others (2008) 14 SCC 661 laid down
that:
"9. As noted above, the powers possessed by the
High Court under Section 482 of the Code are very wide
and the very plenitude of the power requires great caution
in its exercise. Court must be careful to see that its decision
in exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a legitimate
prosecution. The High Court being the highest Court of a
State should normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete and
hazy, more so when the evidence has not been collected and
produced before the Court and the issues involved, whether
factual or legal, are of magnitude and cannot be seen in
their true perspective without sufficient material. Of course,
no hard and fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage. [See :
The Janata Dal etc. Vrs. H.S. Chowdhary and others, etc.
(AIR 1993 SC 892), Dr. Raghubir Saran Vrs. State of Bihar
and another, AIR 1964 SC 1]. It would not be proper for the
High Court to analyse the case of the complainant in the
light of all probabilities in order to determine whether a
conviction would be sustainable and on such premises,
arrive at a conclusion that the proceedings are to be
quashed. It would be erroneous to assess the material
before it and conclude that the complaint cannot be
proceeded with. In proceeding instituted on complaint,
exercise of the inherent powers to quash the proceedings is
called for only in a case where the complaint does not
disclose any offence or is frivolous, vexatious or oppressive.
If the allegations set out in the complaint do not constitute
the offence of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the same
in exercise of the inherent powers under Section 482
Cr.P.C. It is not, however, necessary that there should be
meticulous analysis of the case before the trial to find out
whether the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on
consideration of the allegations in the light of the statement
made on oath of the complainant that the ingredients of the
offence or offences are disclosed and there is no material to
show that the complaint is mala fide, frivolous or vexatious,
in that event there would be no justification for interference
by the High Court. When an information is lodged at the
police station and an offence is registered, then the mala
fides of the informant would be of secondary importance. It
is the material collected during the investigation and
evidence led in Court which decides the fate of the accused
person. The allegations of mala fides against the informant
are of no consequence and cannot by itself be the basis for
quashing the proceeding. [See : Mrs. Dhanalakshmi Vrs. R.
Prasanna Kumar and others, AIR 1990 SC 494; State of
Bihar and another Vrs. P. P. Sharma, I.A.S. and another,
(1992 Suppl (1) SCC 222); Rupan Deol Bajaj (Mrs.) and
another Vrs. Kanwar Pal Singh Gill and another, (1995) 6
SCC 194; State of Kerala and others Vrs. O.C. Kuttan and
others, (1999) 2 SCC 651; State of U.P. Vrs. O. P. Sharma,
(1996) 7 SCC 705; Rashmi Kumar (Smt.) Vrs. Mahesh
Kumar Bhada, (1997) 2 SCC 397; Satvinder Kaur Vrs.
State (Govt. of NCT of Delhi) and another, (1999) 8 SCC
728; Rajesh Bajaj Vrs. State NCT of Delhi and others, AIR
1999 SC 1216)."
6.2. In exceptional cases, to prevent abuse of the process of
Court, the High Court might in exercise of its inherent powers
under Section 482 quash criminal proceedings. However,
interference would only be justified when complaint did not
disclose any offence, or was patently frivolous, vexatious or
oppressive, as held by this Court in Mrs. Dhanalakshmi Vrs. R.
Prasanna Kumar, AIR 1990 SC 494.
6.3. In Madhavrao Jiwajirao Scindia Vrs. Sambhajirao
Chandrojirao Angre, (1988) 1 SCC 6929, a threeJudge Bench of
Supreme Court summarized the law with regard to quashing of
criminal proceedings under Section 482 of the Cr.P.C. The Court
held:
"The legal position is well settled that when a
prosecution at the initial stage is asked to be quashed, the
test to be applied by the court is as to whether the
uncontroverted allegations as made prima facie establish
the offence. It is also for the court to take into consideration
any special features which appear in a particular case to
consider whether it is expedient and in the interest of justice
to permit a prosecution to continue. This is so on the basis
that the court cannot be utilised for any oblique purpose
and where in the opinion of the court chances of an ultimate
conviction are bleak and, therefore, no useful purpose is
likely to be served by allowing a criminal prosecution to
continue, the court may while taking into consideration the
special facts of a case also quash the proceeding even
though it may be at a preliminary stage."
6.4. In Inder Mohan Goswami Vrs. State of Uttaranchal, (2007)
12 SCC 1, the Supreme Court observed:
"46. The court must ensure that criminal prosecution
is not used as an instrument of harassment or for seeking
private vendetta or with an ulterior motive to pressurise the
accused. On analysis of the aforementioned cases, we are of
the opinion that it is neither possible nor desirable to lay
down an inflexible rule that would govern the exercise of
inherent jurisdiction. Inherent jurisdiction of the High Courts
under Section 482 CrPC though wide has to be exercised
sparingly, carefully and with caution and only when it is
justified by the tests specifically laid down in the statute itself
and in the aforementioned cases. In view of the settled legal
position, the impugned judgment cannot be sustained."
6.5. In Kapil Agarwal & Ors. Vrs. Sanjay Sharma & Others,
(2021) 5 SCC 524, the Supreme Court observed that Section 482
of the Cr.P.C. is designed to achieve the purpose of ensuring that
criminal proceedings are not permitted to generate into weapons
of harassment.
6.6. Whether the allegations are true or untrue, would have to be
decided in the trial. In exercise of power under Section 482 of the
Cr.P.C., the Court does not examine the correctness of the
allegations in a complaint except in exceptionally rare cases where
it is patently clear that the allegations are frivolous or do not
disclose any offence. Reference may be had to Ramveer
Upadhyay and Anr. Vrs. State of U.P., 2022 SCC OnLine SC 484.
Cognizance under Section 190:
7. As per Section 2(c) of the Code of Criminal Procedure,
1973, 'cognizable offence' means an offence for which, and
'cognizable case' means a case in which, a police officer may, in
accordance with the First Schedule or under any other law for the
time being in force, arrest without warrant; and per Section 2(l)
'noncognizable offence' means an offence for which, and 'non
cognizable case' means a case in which, a police officer has no
authority to arrest without warrant. A complaint referred to under
subsection (1)(a) of Section 190 is defined under Section 2 (d) of
the Code of Criminal Procedure, which is as follows:
"(d) 'complaint' means any allegation made orally
or in writing to a Magistrate, with a view to his taking
action under this Code, that some person, whether known
or unknown, has committed an offence, but does not include
a police report.
Explanation.--
A report made by a police officer in a case which
discloses, after investigation, the commission of a non-
cognizable offence shall be deemed to be a complaint; and
the police officer by whom such report is made shall be
deemed to be the complainant."
7.1. Chapter XIV which deals with Conditions requisite for
initiation of proceedings contains Section 190 of the CrPC to deal
with "Cognizance of offences by Magistrates". Said section reads
as follows:
"(1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under sub-
section (2), may take cognizance of any offence--
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person
other than a police officer, or upon his own knowledge, that
such offence has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance under
sub-section (1) of such offences as are within his
competence to inquire into or try."
7.2. The word 'Cognizance' roots from an old French word
'Conoisance' based on Latin word 'Cognoscere'. The word
'cognizance' has not been deciphered and defined in procedural
law being the Code of Criminal Procedure 1973.
7.3. The Hon'ble Apex Court in the case of R.R. Chari Vrs.
State of Uttar Pradesh, AIR 1951 SC 207 has held that 'taking
cognizance does not involve any formal action or indeed action of
any kind but occurs as soon as a magistrate as such applies his
mind to the suspected commission of an offence'.
7.4. Said Hon'ble Court in the case of Ajit Kumat Palit Vrs.
State of West Bengal and Others AIR 1963 SC 765 has held as
under:
"19. The provisions of Section 190(1) being
obviously, and on its own terms, inapplicable, the next
question to be. considered is whether it is the requirement
of any principle of general jurisprudence that there should
be some additional material to entitle the Court to take
cognizance of the offence. The word 'cognizance' has no
esoteric or mystic significance in criminal law or
procedure. It merely means, become aware of and when
used with reference to a Court or judge, to take notice of
judicially. It was stated in Gopal Marwari v. Emperor
A.I.R. (1943) Pat. 245 by the learned judges of the Patna
High Court in a passage quoted with approval by this Court
in R. R. Chari Vrs. State of Uttar Pradesh [1951] S.C.R.
312, 320 that the word, 'cognizance' was used in the Code
to indicate the point when the Magistrate or judge takes
judicial notice of an offence and that it was a word of
indefinite import, and is not perhaps always used in exactly
the same sense. As observed in Emperor Vrs. Sourindra
Mohan Chuckerbutty I.L.R. 37 Cal. 412, 416 'taking
cognizance does not involve any formal action ; or indeed
action of any kind, but occurs as soon as a Magistrate, as
such, applies his mind to the suspected commission of an
offence.' Where the statute prescribes the materials on
which alone the judicial mind shall operate before any step
is taken, obviously the statutory requirement must be
fulfilled. Thus, a sessions judge cannot exercise that
original jurisdiction which magistrates specified in s.
190(1) can, but the material on which alone he can apply
his judicial mind and proceed under the Code is an order of
commitment. But statutory provision apart, there is no set
material which must exist before the judicial mind can
operate. It appears to us therefore that as soon as a special
judge receives the orders of allotment of the case passed by
the State Government it becomes vested with jurisdiction to
try the case and when it receives the record from the
Government it can apply its mind and issue notice to the
accused and thus start the trial of the proceedings assigned
to it by the State Government."
7.5. In the case of Tularam and Others Vrs. Kishore Singh,
(1977) 4 SCC 459 it has been observed as under:
"7. The question as to what is meant by taking
cognizance is no longer res integra as it has been decided
by several decisions of this Court. As far back as 1951 this
Court in the case of R. R. Chari v. State of Uttar Pradesh
[1951] S.C.R. 312 observed as follows:
'Taking cognizance does not involve any
formal action or indeed action of any kind but occurs
as soon as a Magistrate as such applies his mind to
the suspected commission of an offence.'
While considering the question in greater detail this
Court endorsed the observations of Justice Das Gupta in
the case of Superintendent and Remembrancer of Legal
Affairs, West Bengal Vrs. Abani Kumar Banerjee A.I.R.
1950 Cal. 347 which was to the following effect.
'It seems to me clear however that before it
can be said that any Magistrate has taken cognizance
of any offence under section 190(1)(a), Criminal
Procedure Code, he must not only have applied his
mind to the contents of the petition but he must have
done so far the purpose of proceeding in a particular
way as indicated in the subsequent provisions of this
Chapter-proceeding under Section 200 and thereafter
sending it for inquiry and report under Section 202.
When the Magistrate applies his mind not for the
purpose of proceeding under the subsequent sections
of this Chapter, but for taking action of some other
kind, e.g. ordering investigation under section
156(3), or issuing a search warrant for the purpose
of the investigation, he cannot be said to have taken
cognizance of the offence.'
*** It seems to us that there is no special charm or
any magical formula in the expression 'taking cognizance'
which merely means judicial application of the mind of the
Magistrate to the facts mentioned in the complaint with a
view to, taking further action. Thus what Section 190
contemplates is that the Magistrate takes cognizance once
he makes himself fully conscious and aware of the
allegations made. in the complaint and decides to examine
or test the validity of the said allegations The Court
prescribes several modes in which a complaint can be
disposed of after taking cognizance.
In the first place, cognizance can be taken on the basis of
three circumstances:
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a police report of such facts; and
(c) upon information received from any person other
than the police officer or upon his own knowledge, that an
offence has been committed. These are the three grounds on
the basis of which a Magistrate can take cognizance and
decide to act accordingly.
It would further appear that this Court in the case of
Narayandas Bhagwandas Madhavdas Vrs. The State of West
Bengal, [1951] S.C.R. 312, observed the mode in which a
Magistrate could take cognizance of an offence and observed
as follows:
'It seems to me clear however that before it can be
said that any Magistrate has taken cognizance of any
offence under section 190(1)(a), Criminal Procedure Code,
he, must not only have applied his mind to the contents of
the petition but must have done so for the purpose of
proceeding in a particular way as indicated in the
subsequent provisions of this Chapter-proceeding under-
Section 200 and thereafter sending it for inquiry and report
under Section 202.'
7.6. In the case of Hareram Satpathy Vrs. Tikaram Agarwala
And Others, (1978) 4 SCC 58, the Hon'ble Supreme Court of
India has observed as under:
"6. To the same effect is the decision of this court
in Chandra Deo Singh Vrs. Prokar Chandra Bose, AIR
1963 SC 1430 where after a full discussion of the matter it
was held that at the time of taking a decision whether a
process should issue against the accused or not what the
Magistrate has to see is whether there is evidence in
support of the allegations of the complainant so as to justify
the issue of process and commencement of proceedings
against the accused, and not whether the evidence is
sufficient to warrant his conviction."
7.7. In Fiona Shrikhande Vrs. State of Maharashtra and Anr.,
AIR 2014 SC 957 while referring to an earlier decision of the
Hon'ble Apex Court reported in (1976) 3 SCC 736 (Smt.
Nagawwa Vrs. Veeranna Shivlingappa Kanjalgi & Ors.) it was
observed as follows:
"Once the Magistrate has exercised his discretion in
forming an opinion that there is ground for proceeding, it is
not for the Higher courts to substitute its own discretion for
tht of the Magistrate. The Magistrate has to decide the
question purely from the point of view of the complaint,
without at all adverting to any defence that the accused may
have."
7.8. In the case of Sushmita Das @ Patnaik Vrs. Soumya Ranjan
Tripathy, 2018 (II) ILR-CUT 578 this Court held as follows:
"6. The position of law is undisputed that at the time
of taking cognizance and issuing process against the
accused persons, the Magistrate is merely concerned with
the allegations made out in the complaint and has only to
be prima-facie satisfied whether there are sufficient
grounds to proceed against the accused and it is not the
province of the Magistrate to enter into a detailed
discussion on the merits and demerits of the case. ***"
7.9. Thus, 'taking cognizance' means cognizance of an offence
and not of offender. Once, the Magistrate takes the cognizance of
an offence then it is the duty to find out the real offender. The
aforesaid process itself personifies taking cognizance is a serious
matter which presupposes a condition whereby the Magistrate has
to apply his judicious mind. Any Magistrate of the first class, any
Magistrate of the second class specially empowered in that behalf
under subsection (2) of Section 190 may take cognizance of an
offence upon receiving the complaint of facts which constitute the
offence, upon a police report of said facts, upon information
received from any person other than the police officer or upon his
own knowledge that said offence has been committed. Sub
Section (2) itself authorises Chief Judicial Magistrate to empower
any Magistrate of second class to take cognizance under sub
section (1) of said offence as are within his competence to enquire
into or trial. Under Section 190, discretion has been casted upon
the Magistrate concerned to act judicially keeping in account the
facts of a particular case as well as law on the said subject. Section
190 is a starting point for taking appropriate judicial action as the
Magistrate under said section has to apply his mind on the motion
so set up in subclauses (a)/(b)/(c) of subsection (1) of Section
190 of the CrPC.
7.10. It would, therefore, be seen that cognizance of offence is the
first and foremost step towards trial. The CrPC has not defined or
specifically explained the expression 'taking cognizance of an
offence'. The meaning of the expression, however, has been
considered in various judicial authorities as discussed above.
7.11. In case of Pradeep S. Wodeyar Vrs. The State of Karnataka,
2021 SCC OnLine SC 1140 scope of Section 465 Cr.P.C. was
considered and it has been observed as:
"53. In order to prove that the irregularity vitiates
the proceeding, the accused must prove a 'failure of justice'
as prescribed under Section 465 Code of Criminal
Procedure. In view of the discussion in the previous section
on the applicability of Section 465 Code of Criminal
Procedure (and the inability to prove failure of justice) to
the cognizance order, the irregularity would not vitiate the
proceedings. Moreover, bearing in mind the objective
behind prescribing that cognizance has to be taken of the
offence and not the offender, a mere change in the form of
the cognizance order would not alter the effect of the order
for any injustice to be meted out.
***
85(ii) The objective of Section 465 is to prevent the
delay in the commencement and completion of trial. Section
465 Code of Criminal Procedure is applicable to
interlocutory orders such as an order taking cognizance
and summons order as well. Therefore, even if the order
taking cognizance is irregular, it would not vitiate the
proceedings in view of Section 465 Code of Criminal
Procedure;"
7.12. Therefore, as per Pradeep S. Wodeyar (supra), even if there
is an irregularity in cognizance order then also on that ground
proceedings in view of Section 465 Cr.P.C. cannot be vitiated.
Conclusion and decision:
8. In the instant case the learned SDJM took cognizance of the
offence after causing due enquiry under Chapter XV of the Code
of Criminal Procedure. On perusal of the record and considering
the statement of witness, he appears to have been satisfied himself
that there was prima facie ground for issuing process against the
petitionerDibakar Sahani. In so doing, the learned SDJM did not
exceed the power vested in him under law. In the Order dated
13.05.2015 while taking cognizance, the learned SDJM perused
the documents available on record, complaint petition and
statements of the complainant as also the witness.
8.1. Therefore, from the above discussion, it is clear that
although there is no illegality in the cognizance order dated
13.05.2015, as before taking cognizance the learned SDJM
perused the relevant material on record. Nonetheless, even if there
was an irregularity in the cognizance order, then also on the basis
of it proceedings of the present case cannot be quashed as order of
taking cognizance are interlocutory in nature and as per Section
465 Cr.P.C. proceedings on the basis of that irregularity cannot be
vitiated.
9. Since the interim order dated 01.09.2015 has not been
extended at any point of time thereafter even though the matter
was on board. In view of authoritative pronouncement of the
Hon'ble Supreme Court of India in the cases of Asian Resurfacing
of Road Agency Pvt. Ltd. & Anr. Vrs. Central Bureau of
Investigation, 2018 (I) ILR-CUT 659 (SC) = (2018) 16 SCC 299
and Asian Resurfacing of Road Agency Pvt. Ltd. and Another Vrs.
Central Bureau of Investigation, 2020 SCC OnLine SC 1046; read
with Standing Order No.1 of 2019, dated 09.01.2019 issued by
this Court, said interim order appears to have been expired.
9.1. In Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vrs.
Central Bureau of Investigation, 2018 (I) ILR-CUT 659 (SC) =
(2018) 16 SCC 299 the Supreme Court observed:
"36. In view of the above, situation of proceedings
remaining pending for long on account of stay needs to be
remedied. Remedy is required not only for corruption cases
but for all civil and criminal cases where on account of
stay, civil and criminal proceedings are held up. At times,
proceedings are adjourned sine die on account of stay.
Even after stay is vacated, intimation is not received and
proceedings are not taken up. In an attempt to remedy this
situation, we consider it appropriate to direct that in all
pending cases where stay against proceedings of a civil or
criminal trial is operating, the same will come to an end on
expiry of six months from today unless in an exceptional
case by a speaking order such stay is extended. In cases
where stay is granted in future, the same will end on expiry
of six months from the date of such order unless similar
extension is granted by a speaking order. The speaking
order must show that the case was of such exceptional
nature that continuing the stay was more important than
having the trial finalized. The trial court where order of
stay of civil or criminal proceedings is produced may fix a
date not beyond six months of the order of stay so that on
expiry of period of stay, proceedings can commence unless
order of extension of stay is produced.
37. Thus, we declare the law to be that order framing
charge is not purely an interlocutory order nor a final
order. Jurisdiction of the High Court is not barred
irrespective of the label of a petition, be it under Section
397 or 482 Cr.P.C. or Article 227 of the Constitution.
However, the said jurisdiction is to be exercised consistent
with the legislative policy to ensure expeditious disposal of
a trial without the same being in any manner hampered.
Thus considered, the challenge to an order of charge should
be entertained in a rarest of rare case only to correct a
patent error of jurisdiction and not to reappreciate the
matter. Even where such challenge is entertained and stay
is granted, the matter must be decided on day-to-day basis
so that stay does not operate for an unduly long period.
Though no mandatory time-limit may be fixed, the decision
may not exceed two-three months normally. If it remains
pending longer, duration of stay should not exceed six
months, unless extension is granted by a specific speaking
order, as already indicated. Mandate of speedy justice
applies to the PC Act cases as well as other cases where at
trial stage proceedings are stayed by the higher court, i.e.
the High Court or a court below the High Court, as the case
may be. In all pending matters before the High Courts or
other Courts relating to the PC Act or all other civil or
criminal cases, where stay of proceedings in a pending trial
is operating, stay will automatically lapse after six months
from today unless extended by speaking order on the above
parameters. Same course may also be adopted by civil and
criminal appellate/Revisional Courts under the jurisdiction
of the High Courts. The trial courts may, on expiry of the
above period, resume the proceedings without waiting for
any other intimation unless express order extending stay is
produced."
9.2. In the said case by order dated 15th October, 2020 (2020
SCC OnLine SC 1046) the Supreme Court has further observed
that,
"whatever stay has been granted by any court
including the High Court automatically expires within a
period of six months, and unless extension is granted for
good reason, as per our judgment, within the next six
months, the trial Court is, on the expiry of the first period of
six months, to set a date for the trial and go ahead with the
same."
9.3. The interim order dated 01.09.2015 passed by this Court in
the instant case was operative "till next listing". The matter was
listed on 23.08.2022, on which date none appeared for the
petitioner. Thereafter on 16.09.2022 when the matter was listed,
this Court directed as follows:
"Learned counsel for the petitioner in the course of
hearing the CRLMC application prays for one week time to
apprise the Court about the present status of the case."
9.4. On 28.10.2022 this Court passed further order to the
following effect:
"As undertaken by the learned counsel on 16th
September, 2022 for furnishing the current status of the
case, the same could not be furnished today.
Due to the aforesaid reason, the matter stands
adjourned to 25th November, 2022 on which date counsel
for the petitioner is directed to place the present status of
the case."
9.5. On 25th November, 2022, current status of the case has not
been furnished, but the counsel for the petitioner argued the matter
on merit.
9.6. It is hoped that by virtue of Asian Resurfacing of Road
Agency Pvt. Ltd. & Anr. Vrs. Central Bureau of Investigation,
2018 (I) ILR-CUT 659 (SC) = (2018) 16 SCC 299 and 2020 (2020
SCC online SC 1046), since the interim order dated 01.09.2015
did lapse on the date of listing, i.e., 23.08.2022 and the same being
not extended on subsequent occasions when the matter was listed,
the learned SDJM would have proceeded with the case being ICC
No. 47/2014.
10. From the above discussion, this Court is not inclined to
interfere with the impugned order of cognizance. Accordingly, the
CRLMC is dismissed. However, since the case is of the year 2014,
the trial of the same be expedited.
11. A copy of this judgment be communicated to the Court
concerned Court by the Registry forthwith.
(MURAHARI SRI RAMAN)
JUDGE
MRS High Court of Orissa, Cuttack
December 23, 2022
