Mahendra Behera & Another vs State Of Odisha & Another
2023 Latest Caselaw 5726 Ori

                           IN THE HIGH COURT OF ORISSA AT CUTTACK

                                       CRLMC No.5602 of 2015
                          (In the matter of an appeal under Section 482 of the
                          Code of Criminal Procedure).


                          Mahendra Behera & another             ....   Petitioners

                                               -versus-
                          State of Odisha & another             ... Opposite parties

                          For Petitioner            :   Mr. D.Mohapatra, Advocate
                          For Opposite              :   Mr. P.K.Patnaik, AGA for
                          Parties                       O.P. No.1


                             CORAM:
                                              JUSTICE G. SATAPATHY

                                       DATE OF ARGUMENT: 13.04.2023
                                       DATE OF JUDGMENT: 11.05.2023

                     G. Satapathy, J.

1. The prayer of the petitioners in this CRLMC is to

quash the order passed on 15.05.2015 by the learned

S.D.J.M., Talcher in G.R. Case No. 1316 of 2013 KISHOR Digitally signed E by KISHORE KUMAR SAHOO arising out of Colliery P.S. Case No. 414 dated KUMAR Date: 2023.05.12 16:51:03 +05'30' SAHOO

29.11.2013 taking cognizance of different offences

and the criminal proceeding arising thereon.

2. The facts as emerges in this case arise out

of an FIR lodged by O.P. No.2 against the petitioners

and others on 29.11.2013 alleging therein that she

along with others had been to the petitioners to

protest their disengagement from the work of 3/4

sidings, but the petitioners and their henchmen

numbering 70 to 80 persons attacked them and in

the process, the petitioners outraged her modesty

and other ladies by pulling their wearing apparels. On

this FIR, Colliery P.S. Case No. 414 dated 29.11.2013

was registered which was accordingly investigated

into and on conclusion of investigation, charge sheet

was placed vide C.S. No. 71 of 2015. Accordingly, the

learned S.D.J.M., Talcher by the impugned order

dated 15.05.2015 took cognizance of offences U/s.

147, 341, 323, 354(B), 294, 506, 392 of IPC,

3(1)(x)(ix) SC/ST (PA) Act read with 149 of IPC. The

petitioners by way of this CRLMC have challenged

such order taking cognizance of offence and the

criminal proceeding arising thereon.

3. In the course of hearing of CRLMC,

Mr.D.Mohapatra, learned counsel for the petitioners

has submitted that although there is absolutely no

material against the petitioners for commission of

offence U/Ss. 147/354/392/294 of IPC read with

Section 3(1)(x)(ix) SC/ST (PA) Act, but learned

counsel S.D.J.M. without proper appreciation of the

materials on record took cognizance of offences for

aforesaid sections by the impugned order, even

though charge sheet has submitted only against two

persons and the informant is not a member of SC and

ST community. Mr.Mohapatra by relying upon a

number of decisions has prayed to quash the

cognizance order and consequently the criminal

proceeding against the petitioners.

4. On the other hand, Mr.P.K.Patnaik, learned AGA

by drawing the attention of the Court to the facts has

submitted that the learned S.D.J.M. has not

committed any illegality in taking cognizance of

offences and thereby, the impugned order cannot be

faulted with.

5. Admittedly, the FIR was lodged way back on

29.11.2013 and in the meanwhile near about ten

years has elapsed, but the petitioners are unable to

produce the copy of statement of witnesses. Although

the petitioners have produced the certified copy of

the impugned order, but they have failed to produce

the certified copy of charge sheet and statement of

witnesses in the present case, no matter the

petitioners have produced photocopy of certified copy

of the charge sheet in the present case which

indicates submission of charge sheet against the

petitioners on 30.04.2015 and in the meanwhile

around more than eight years have elapsed. Besides,

the petitioners have produced photocopy of certified

copies of FIRs in Colliery P.S. Case No. 363 of 2013

and Colliery P.S. Case No. 413 of 2013 which were

registered against some other persons on the FIR of

petitioner No.2 and one Bichitra Nanda Sahoo

respectively. Learned counsel for the petitioners in

fact has annexed these documents to indicate that

the present case against the petitioners in Colliery

P.S. Case No. 414 dated 29.11.2013 is the outcome

of vengeance of the informant group being led by

some other influential persons, against whom

petitioner No.2 and another person had lodged FIRs

for commission of offences upon them. In absence of

any reference to the name of the informant in Colliery

P.S. Case No. 414 of 2013 as accused in Colliery P.S.

Case No. 363 of 2013 and 413 of 2013, this Court is,

however, unable to persuade itself to consider that

the present case is the outcome of vengeance of the

informant, more particularly when the informant of

the present case has not been shown to be related in

other cases lodged by the petitioner No.2 and

another.

6. In addition, it is contended on behalf of the

petitioners that although the informant is not a

member of either SC or ST community, but the

petitioners have been charge sheeted for offence U/S.

3(1)(x)(ix) SC/ST (PA) Act. The photocopy of the

certified copy of FIR and the charge sheet enclosed

by the petitioners itself disclose that two persons who

had accompanied the informant to the spot of

occurrence are members of ST community. On the

other hand, the petitioners had not been able to

clarify by way of producing the statement of such

witness belonging to ST community that they had not

been intentionally insulted by reason of their caste. It

is, however, contended by the petitioners that since

charge sheet has been submitted against two

persons, the imposition of Section 147 and 149 of IPC

would not be in accordance with law inasmuch as to

constitute an offence U/S. 147 and 149 of IPC there

must be an unlawful assembly of five or more

persons as per the provision of Section 141 of the

IPC, but such assertion can be examined on

consideration of the entire materials placed on

record. The petitioners have not enclosed the entire

set of facts in the form of statement of witnesses,

although the petitioners could able to enclose the

statement of witnesses in other cases like Colliery

P.S. Case No. 363 of 2013 which is not the subject

matter of the present CRLMC. This Court, therefore,

is precluded from assessing and perusing the

complete materials placed on record. It is, however,

not disputed that the petitioners can raise those

points at the time of consideration of charge which

can be addressed to by the Court in seisin of the case

since it would have the privilege of going through the

entire materials placed on record. Besides, the

petitioners could not clearly apprise the Court about

the developments that might have taken place after

submission of charge sheet and impugned order in

the year 2015 to till date. Although the petitioners

have relied upon number of judgments to quash the

impugned order and proceeding thereon, but their

applicability certainly could not be tested with due to

incomplete set of facts inasmuch as the petitioners

have not produced the entire materials collected by

the I.O. in the course of investigation. In such view of

the matter, this Court does not persuade itself to

consider that the impugned order together with the

criminal proceeding is an abuse of process of Court so

as to exercise the power U/S. 482 of Cr.P.C. The

petitioners, however, is at liberty to urge all those

points as raised in this CRLMC at appropriate stage of

the case before the Court in seisin of the case which

shall be considered in accordance with law.

7. In the result, the CRLMC stands dismissed on

contest with aforesaid liberty, but in the circumstance

there is no order as to costs.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 11th of May, 2023/Kishore