Orissa High Court
Darapu Saradamma And Others vs State Of Odisha And Another on 9 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.772 of 2014
Darapu Saradamma and others .... Petitioners
Mr. P. K. Mishra, Advocate
-versus-
State of Odisha and another ... Opposite Parties
Mr. Ishwar Mohanty, ASC
CORAM:
THE CHIEF JUSTICE
ORDER
Order No. 09.09.2022
06. 1. The present petition is by six Petitioners challenging the order
dated 29th November, 2013 passed by the learned SDJM,
Paralakhemundi in 1CC No.27 of 2011 taking cognizance of the
offences under Sections 404/406 read with Section 34 IPC and
issuing summons to the Petitioners to face trial for the said
offences. The petition also challenges an order dated 10th
September, 2013 passed by the Sessions Judge, Gajapati in
Criminal Revision No.4 of 2012 wherein the order dated 16th
December, 2011 passed by the SDJM was set aside and the
Magistrate was directed to reconsider the complaint.
2. The background facts are that Respondent No.2-Complainant
preferred the aforementioned complaint i.e. 1CC No.27 of 2011
against the present Petitioners under Section 404/406/34 IPC. It
may be mentioned here that the Petitioners herein and the
Complainant are descendants of one common ancestor having a
share in the joint family property. The Complainant alleged that
two of his other brothers took possession of the land and
properties after the death of their father; that there is a civil suit
pending between the parties; that the property was entrusted to
his brothers who had misappropriated the same.
3. It is now stated that the civil suit was dismissed by a judgment
and decree dated 31st July/16th August, 2001 on the ground that
the suit properties already stand partitioned. It is stated that the
Complainant preferred an appeal before this Court, which was
registered as F.A. No.221 of 2001, which is pending final
adjudication.
4. As far as the complaint itself was concerned, the SDJM by the
order dated 16th December, 2011 dismissed it holding that there
were no prima facie materials to take cognizance of the offences
under the aforementioned Sections and the nature of allegations
disclosed a civil dispute. Against the aforementioned order when
the Complainant filed Criminal Revision No.4 of 2012, it was
allowed by the first impugned order dated 10th September, 2013
of the learned Sessions Judge, Gajapati holding that the
complaint should not be dismissed simply because the case is of
a civil nature but it should be examined if the allegations
contained therein disclose a criminal offence. Consequently, the
impugned order dated 16th December, 2011 of the SDJM was set
aside and the matter was remanded to the Magistrate for a fresh
consideration.
5. By the second impugned order dated 29th November 2013, the
SDJM has, in terms of the order passed in the Criminal Revision
No.4 of 2012, taken cognizance of the aforementioned offences
against the accused persons (Petitioners) under Sections
404/406/34 IPC.
6. The grievance of the present Petitioners is that on remand, the
SDJM has mechanically taken cognizance of the offences vis-à-
vis the present Petitioners and summoned them without actually
considering the complaint afresh in light of the remand order
passed by the learned Sessions Judge.
7. Having heard learned counsel for the Petitioners as well as
learned Additional Government Advocate for the State, the Court
is of the view that the pleas raised by the Petitioners questioning
the order taking cognizance can well be urged by them at the
appropriate stage before the learned SDJM and there is no need
for the Court to interfere with the matter at this stage.
8. Accordingly, while declining to interfere at this stage, the
petition is dismissed with the above observations. The Court
clarifies that it has not expressed any view in the matter. The
interim order passed earlier stands vacated. A copy of this order be
communicated to the concerned trial court forthwith.
(Dr. S. Muralidhar)
Chief Justice
M. Panda
