Jugdal @ Jugal Kishor Behera vs Prabhulal Behera
2023 Latest Caselaw 8986 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK
                           CRLMC No. 3282 of 2016

      Jugdal @ Jugal Kishor Behera ...           Petitioners
      and others
                                Mr. SK. Zafarulla, Advocate
                                   -versus-
      Prabhulal Behera                        ...         Opposite Party
                                                 Mr. S. Dash, Advocate

                                   CORAM:
                            JUSTICE G. SATAPATHY


                                   JUDGMENT(ORAL)

Order No.                            10.08.2023
 11.      1.       This   matter    is   taken     up       through     Hybrid

Arrangement (Virtual/Physical Mode).

2. This is an application U/S 482 Cr.P.C. by the petitioners seeking to quash of the impugned order passed on 15.09.2012 by the learned J.M.F.C., Kantabanji taking cognizance of offence U/S. 458/395/34 of the IPC and issuing summons to the petitioners.

3. An overview facts involved in this case are on 25.06.2015, the OP-Prabhulal Behera instituted a complaint against the petitioners in 1C.C. Case No. 10 of 2015 by describing them as accused persons and it was alleged therein that on 19.06.2015 at about 7 P.M. in village Turekela, the petitioners-accused persons being armed with knife, axe and lathies barged into the house of OP-complainant by kicking the door and abused him in filthy language and took away a cash of Rs. 30,000/- and two tola gold ornaments by breaking the lock of a tin box. On being protested, they assaulted the OP-complainant by giving lathi and kick blows. It is further alleged in the complaint that the petitioner-cum-accused No.1(A-1) by putting a knife on the neck of the OP-complainant threatened him not to raise protest, otherwise he would cut his neck.

4. On the complaint made by the complainant, the learned J.M.F.C., Kantabanji recorded his initial statement U/S 200 of Cr.P.C as well as recorded the statement of the witnesses in an enquiry U/S. 202 Cr.P.C. After appreciating the initial statement and the statement of witnesses in the enquiry upon hearing the complaint, the learned J.M.F.C. being prima facie satisfied took cognizance of offences and issued process against the petitioners by the impugned order and when the petitioners did not appear and found absent on calls in the complaint, the learned J.M.F.C. issued NBWAs against them on 22.01.2016. The petitioners, however, being aggrieved with the impugned order have challenged it in this CRLMC.

5. In the course of hearing of the CRLMC, Sk. Zafarulla, learned counsel for the petitioners by drawing attention of the Court to the facts involved in this case submits that there was absolutely no material available on record against the accused persons/Petitioners for considering commission of any offence and the learned trial Court had misdirected

itself while taking cognizance of offences by not appreciating the evidence in proper perspective. Mr.Zafarulla by taking this Court through the initial statement of the complainant and statement of witnesses in enquiry U/S. 202 Cr.P.C. vis-à-vis the ingredients of offence U/S. 395 of IPC, further submits that in any circumstance, no offence U/S 395 of the IPC is made out against any of the petitioners. It is accordingly, prayed by Mr. Zafarulla to quash the impugned order. None appears for the OP despite being duly noticed and sufficient opportunity being provided by informing the counsel appearing for the OP.

6. After having heard the submission advanced for the petitioners upon perusal of record, this Court finds only one question to be decided in this case is whether the materials on record disclosed commission of any offence or not. It appears from the complaint that the accused persons being armed with different weapon of offence, had entered into house of the complainant and they had given kick and lathi blows and took away cash of Rs. 30,000/- with two tola gold ornaments from the tin box, but the complainant while being examined had improved his story in his initial statement by assigning different roles to different petitioners and accordingly, he had stated that the accused No.1 Jugal Behera threatened him to kill, but the complaint only reveals some omnibus allegation against the accused persons for threatening, assaulting and taking away cash and gold ornaments without specifying the role of any of the

accused persons/Petitioners. Similarly, the witnesses who had been examined by the learned J.M.F.C. U/S 202 Cr.P.C. had not been described as an eye witness to the occurrence, but only described as witnesses in the complaint. However, all the three witnesses had stated in their enquiry as if they were the eye witnesses to the occurrence and all the three witnesses had stated against the accused persons in different ways.

7. It is always remembered that sometimes the complaint are being filed with mala fide intention to harass the other sides, but the Courts while taking cognizance of offence must apply its mind judicially by keeping in view the factors of false implication or over implication. The complaint in the present case of course discloses that the complainant-OP-1 had orally reported to the local Police, but it was not stated therein that the complainant had taken any recourse to Section 154(3) of the Cr.P.C. by submitting the information about the occurrence to the concerned S.P. in writing for inaction of the Police, before approaching the Court in the complaint. It is true that the law never mandates that complaint cannot be filed without approaching the S.P. in terms of the Section 154(3) of the Cr.P.C., but as a matter of prudence, the same needs to be followed before lodging a complaint, in view of the general notion that complaint are being filed generally to harass the other sides.

8. It is useful to discuss as to what constitutes the offence of dacoity. Robbery is dacoity, if the number of

persons committing robbery is five or more. The main/principal distinguishing factor in robbery, theft and extortion is the presence of imminent fear of violence or danger. True it is, in all robbery, there is either theft or extortion, but not the converse. For attracting the charge of robbery, it needs to be established objectively that in order to commit theft or in committing theft or carrying away or attempting to carry away the property obtained by theft, the offender for that end, voluntarily caused or attempted to cause any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint.

9. Reverting back to the case at hand, neither was it stated in the complaint nor was it stated by the complainant in his initial statement or by any of the witnesses in their statements U/S. 202 of Cr.P.C. that the petitioners or any one of them had caused hurt or had attempted to cause hurt to complainant-OP or had put anyone in fear of death to deliver the property to them or in order to commit theft. It was, however, stated in the complaint as well as stated by the complainant/witnesses that petitioners had assaulted the complainant-OP, threatened him in the manner stated above(para-7) and took away Rs.30,000/- and two tolas of gold but, not stated to have caused hurt to complainant-OP or put anyone in fear of death for committing theft. It appears that the accused Nos. 5 and 7 were aged about 70 years and more, whereas

accused No. 3 was aged about 50 years at the time of lodging of complaint. Besides, it appears that the accused-petitioners numbering 9 were from one family including aged person and ladies. It should not be forgotten that sometimes complainant ventures to proceed against the accused persons with an ulterior motive for wrecking personal vengeance/vendetta and in such circumstance the complaint which is normally drafted by a legal expert, who would definitely draft the complaint containing necessary ingredients to constitute offences. Hence, the Court owes more than verbal respect and be duty bound to look into many other attending circumstance emerging from the complaint and at the same time, it should also be careful with great circumspection while taking cognizance of offence and issuing process against the accused persons in such private complaints, which are ultimately designed to harass the other side. Keeping in mind the aforesaid facts and the principle of law together with the general notion, especially when the complainant-OP had not resorted to statutory requirement as laid down in Section 154(3) Cr.P.C., this Court, however, considers that the learned J.M.F.C.,(O) was not vigilant enough to rule out over implication of the petitioners in this case and he had probably passed order mechanically taking cognizance of offence without making any discussion as to the ingredients of the offences, for which cognizance was taken. Since the complaint is of the year 2015, this Court does not feel it

proper to remand the same for passing fresh order on the point of cognizance, however, on careful appraisal of the materials placed on record in the form of complaint, initial statement of complainant and substance of enquiry of witnesses U/S. 202 of Cr.P.C., this Court considers that the cognizance of offence U/S 395 of IPC appears to be bad in the circumstance since there is no ingredient for such offence, rather at best a prima facie case U/Ss 458/323/379/34 of IPC may be attracted in this case which is of course subject to proof. In the circumstance, the further continuation of criminal proceeding against the petitioners for offence U/S. 395 of IPC appears to be an abuse of process of Court and to secure the ends of justice, interference U/S. 482 of Cr.P.C. is required to rectify the impugned order.

10. In such view of the matter, the impugned order taking cognizance of offences stands modified for offences U/Ss. 458/323/379/34 of IPC. It is also found from the record that NBWAs have been issued against the petitioners, but in the aforesaid changed circumstance, it would not be proper to allow the NBWAs to be executed against the petitioners affecting their personal liberty and instead, the learned J.MF.C. should issue summons at the first instance in the changed circumstance for appearance of the petitioners by giving a reasonable time of one month and in case of failure of appearance of the petitioners in the Court within the time as stipulated above, the learned

J.M.F.C., Kantabanjhi would be perfectly justified to issue NBWAs against them.

11. In the result the CRLMC stands partly allowed, but in the circumstance there is no order as to costs. Consequently, the impugned order stands modified to the extent indicated above.

(G. Satapathy) Judge S. Sasmal

Signature Not Verified

Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 14-Aug-2023 10:31:02