Tareque Ahemed vs State Of Orissa
2023 Latest Caselaw 1173 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                  CRLMC NO.462 of 2017

  (In the matter of application under Section 482 of the
  Criminal Procedure Code, 1973.).

  Tareque Ahemed                     .... Petitioner

                          -versus-

  State of Orissa                    ... Opposite Party
                                     .



  For Petitioner         :   Mr. D.Panda,
                             Sr. Advocate


  For Opposite           :   Mr. S.R.Roul, ASC
                             Mr. B.R.Mohnaty,
                             Advocate[Informant]

       CORAM:
                   JUSTICE G. SATAPATHY

               DATE OF HEARING :06.01.2023
               DATE OF JUDGMENT: 03.02.2023


G. Satapathy, J.

1. This is an application U/S 482 of Cr.P.C. by the

petitioner seeking to quash the order passed by

learned S.D.J.M., Titlagarh on 08.12.2015 in G.R. Case

No.217 of 2014 taking cognizance of offences and

consequently, the proceeding arising thereof.

2. Facts leading to filing of the CRLMC are one

Satyanarayan Pradhan lodged an FIR against the

petitioner and others before the Superintendent of

police, Bolangir on 28.06.2014 alleging therein about

police personnel of Bolangir Police Station taking

away his brother "Basanta Pradhan" (hereinafter

referred to as "deceased") on 10.06.2014 at about 9

P.M. from their house to Titlagarh Police Station and

assaulting him physically there at in most inhuman

manner continuously for four hours and later on,

taking away his brother to Bolangir Police Station and

continuously beating him even inside the police vehicle

during the journey from Titilagarh to Bolangir and,

therefore, they detained the deceased at Bolangir

Police Station till 15.06.2014 during which period, the

deceased was subjected to inhuman physical torture

and merciless beating. It is also alleged by the

informant in the FIR that his brother was detained by

the police for long four days without registration of

criminal case against him nor was he forwarded to the

Court as per the law and during that period, he saw

the deceased vomiting blood due to internal injury and

the deceased was taken to hospital by Bolangir police

and the entire unfortunate incident was going on in

the presence of the IIC-cum-petitioner herein and

when the police felt that the deceased was likely to die

due to the brutal torture, they released him with a

threatening not to disclose about the incident and on

15.06.2014 the deceased was under medical

treatment for the injuries sustained by him on his

entire body and unfortunately, the deceased died on

28.06.2015.

On receipt of the above report, Titlagarh P.S.

FIR No.144 of 2014 was registered and the allegations

of the informant was investigated into, which resulted

in submission of charge-sheet against the petitioner

and others for different offences. On being finding

prima facie case, learned S.D.J.M., Titlagarh by the

impugned order took cognizance of offences U/Ss.120-

B/341/342/343/323/330/348/506/302/201/34 of IPC.

Feeling aggrieved with the order taking cognizance,

the petitioner has approached this Court in this

CRLMC.

3. In the course of hearing of the CRLMC, Mr. D.

Panda, learned Senior Counsel by taking this Court

through the impugned order, FIR & Post Mortem

Report of the deceased, submits that no case U/S.302

of IPC is made out against the petitioner nor is there

any concept of submission of preliminary charge-sheet

against the petitioner as per law and the cause of

death of the deceased was on account of Cardiac

Circulatory Failure due to Septicemic Shock and,

therefore, no prosecution is maintainable against the

petitioner for any offence. It is further submitted that

the allegations levelled in the FIR do not corroborate

the Post Mortem Report findings since the injuries

detected in the Post Mortem Report does not have any

nexus to the allegations levelled by the informant and

the witnesses and, therefore, the prosecution against

the petitioner is nothing but an abuse of process of

Court and allowing further continuance of criminal

proceeding in this case would amount to further abuse

of the process of the Court. Learned Senior Counsel

under aforesaid submissions prays to quash the

cognizance order and consequently, the criminal

proceeding arising thereof.

4. Mr. S.R. Roul, learned ASC by placing the

statement of one Jayant Kumar Padhi submits that the

deceased suffered death due to the custodial torture

exerted by the petitioner and other police personnel of

Bolangir Police Station and, thereby, prima facie case

is made out against the petitioner and other Police

personnel for culpable homicide and, therefore, the

present criminal proceeding together impugned order

cannot be considered to be an abuse of process of the

Court by any stretch of imagination. It is accordingly

prayed by the learned ASC to dismiss the CRLMC

being unmerited.

5. Mr. B.R. Mohanty, learned counsel for the

informant by placing the statement of wife and

brothers of the deceased, submits that the deceased

had made an oral dying declaration before his wife, in

which he had vividly and categorically described the

role played by the petitioner for custodial torture and

assault made on him resulting in his death. He further

submits that the Post Mortem Report corroborates the

act alleged against the petitioner and several injuries

were noticed on the person of the deceased, which

resulted in his death and, thereby, there is reasonable

nexus between the allegations leveled against the

petitioner and the corresponding injuries found on the

body of the deceased causing his death and, therefore,

the present proceeding cannot be termed as an abuse

of process of the Court and the CRLMC being

unmerited is liable to be dismissed. On the above

submissions, learned counsel for the informant prays

to dismiss the CRLMC.

6. Rival submissions made by the parties have led

this Court to reiterate the grounds in which a criminal

proceeding can be terminated which has been

succinctly elucidated by the Apex Court in State of

Haryana and Others Vrs. Ch. Bhajan Lal and

Others; (1992) Supp (1) SCC 335 at Paragraph-102

of the judgment which is extracted below:-

"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not primfacie constitute any offence or make out a case against the accused.

(2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate, as contemplated under section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) to the institution and continuation of the proceedings and/are where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.

                 (7) Where a criminal proceeding is
            manifestly    attended     with   malafide
            and/are     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."

While scrutinizing the case of the petitioner on

the anvil of above grounds, it appears at the outset

that on receipt of preliminary charge sheet, the

learned S.D.J.M., Titlagarh has taken cognizance of

offences by the impugned order and accordingly

issued summons to the petitioner and others after

recording his satisfaction about existence of sufficient

materials to proceed against the petitioner and

others. The concept of taking cognizance of offences

on receipt of preliminary charge sheet, instead of a

charge sheet as contemplated U/S. 173(2) of Cr.P.C.

is, however, seriously criticized by the learned Senior

Counsel which in fact persuades this Court for a

moment to examine the legality of such preliminary

charge sheet, but law is very clear on this point in

view of the decision of Apex Court in State of

Maharashtra Vrs. Sharadchandra Vinayak

Dongra and others; (1995) 1 SCC 42 wherein at

Paragraph-7, the Apex Court has been pleased to

observe as under:-

"if the police report and the material filed therewith is sufficient to

satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173(2) CrPC. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file "supplementary charge-sheet", it could not affect the jurisdiction of the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge-sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate."

Hence, it is very clear that if there is sufficient

material, the Court can take cognizance of offences

even if the police submitted a report U/S. 173(2) of

Cr.P.C. leveling it to be a preliminary charge sheet

seeking permission of the Court to keep the

investigation open. This Court is of prima facie view

that mere description of report as preliminary charge

sheet or irrespective of nomenclature under which a

charge sheet has been filed, it would not take away

such report out of the purview of report as

contemplated U/S. 173(2) of Cr.P.C. subject to

condition on consideration of learned Magistrate

about existence of sufficiency of materials to take

cognizance of offence on conclusion of investigation

and once Magistrate takes cognizance of offences

would give rise to a reasonable presumption of

completion of investigation which in fact would not be

a bar for further investigation U/S. 173(8) of Cr.P.C.

7. Learned Senior Counsel for the petitioner has

also challenged the criminal proceeding against the

petitioner on the ground that there is no nexus

between FIR allegations and post mortem report

findings which were stoutly denied by the learned

ASC and learned counsel for the informant. A bare

perusal of the averments made in the FIR would go to

disclose that the deceased was captive under Bolangir

police from 10.06.2014 to 15.06.2014 and the

informant had seen his deceased brother vomiting

blood during such period and the deceased was taken

to hospital twice by Bolangir Police and the post

mortem report of the deceased reveals that autopsy

was done on the body of the deceased on 28.06.2014

in between 7 P.M. to 8 P.M. and around six numbers

of ante mortem injuries were noticed and the cause

of death was opined by the doctor to be on account of

Cardiac Circulatory Failure due to Septicemic Shock.

In the present scenario of allegations and

corresponding findings of the post mortem report, it

cannot be said at this stage, when there is no

evidence let in by the prosecution in the Court that

there is no nexus between injuries and cause of death

of the deceased. Besides, the informant in the FIR

has vividly described the allegations against the

petitioner and others for custodial violence on the

deceased, but at this stage, certainly the criminal

proceeding cannot be quashed merely on the ground

that the allegations in the FIR do not corroborate the

post mortem report findings which reveal number of

injuries on the person of the deceased. On the other

hand, a plain reading of the allegations appearing in

the FIR would go to disclose custodial violence and

brutal torture on the deceased by the petitioner and

others and thereby, the uniform of the police was

again maligned and the same is also scar in the mind

of the dependants of the deceased. It is albeit

advanced on behalf of the informant that the

deceased had made a oral dying declaration before

his wife describing vividly about the custodial violence

and torture meted to him by the Bolangir police, but

such facts being matters of trial and the case being

subjudice, this Court, however, refrains itself from

commenting on such submission of the informant

which is to be appreciated by the learned trial Court

while disposing the case after analyzing the evidence.

8. Learned Senior Counsel has also contended

that the injuries as noticed on the person of the

deceased were neither individually nor collectively

considered sufficient to cause death in ordinary

course, but the same is in the realm of learned trial

Court to decide once the evidence of doctor is let in

before it and it would be improper to conclude that

the injuries are not sufficient in ordinary course to

cause death on the facts available on record without

appreciating the evidence tendered by the doctor in

the Court, but the trial is yet to begin in this case

and, thereby, no evidence has been tendered by the

witnesses including the doctor till today. In addition,

the petitioner has also assailed the order taking

cognizance of offences, but it was never his case that

the uncontroverted allegations appearing in the FIR

and charge sheet containing the statement of

witnesses and other materials on record do not

disclose the necessary ingredients of offences under

which cognizance was taken nor a case is made out

against him. On the contrary, the impugned order

passed by the learned S.D.J.M., Titlagarh does not

suffer from any infirmity as the same has been

passed on proper consideration of the materials

placed on record as revealed from the impugned

order. On the other hand, the uncontroverted

allegations on record, however, demonstrates a

typical story of custodial violence, torture and

brutality meted to the deceased when he was alive, in

captive by the police and these infamous tools with

which police are sometimes associated in the guise of

investigation to crack a case would definitely bring

disrepute and infamies to modern day policing, unless

the police completely switchover to modern and

scientific techniques for the purpose of conducting

investigation, nonetheless the uncontroverted

allegations on record in this case cannot be said to

have not disclosed commission of any offence and

made out a case against the petitioner.

9. In view of the above analysis of facts and

materials placed on record in the light of rival

submissions and the guidelines as set out by Apex

Court in Bhajanlal (supra), this Court does not find

any error or infirmity in the impugned order nor the

criminal proceeding against the petitioner can be

termed as an abuse of process of Court necessitating

any interference by this Court.

10. Resultantly, the CRLMC stands dismissed

being devoid of merit on contest, but in the

circumstance without any order as to costs.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 3rd of February, 2023/Kishore