Bibudhendra Dash vs For
2023 Latest Caselaw 10620 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.1943 of 2023 &
                     CRLMC No. 2113 of 2023

      Applications under Section 482 of Code of Criminal
      Procedure, 1973.
                          ---------------
AFR   CRLMC No.1943 of 2023
      Bibudhendra Dash                    ......          Petitioner

                                - Versus -

      Bibhuti Bhusan Behera                  .......      Opp.Party

      CRLMC No. 2113 of 2023
      Madhusudan Panda & Others              ......       Petitioners

                                - Versus -

      Bibhuti Bhusan Behera                  .......       Opp.Party

      Advocate(s) appeared in this case:-
      _________________________________________________________
            For Petitioners     : M/s. Gokulananda Mohapatra,
                                  B.N. Mohapatra, T.Mohapatra &
                                  P. Mohanty, Advcates.
                                  [in both the CRLMCs]

            For Opp. Parties    : M/s. P.K. Mallick &
                                  S.K. Nayak, Advocates,
                                  [in both the CRLMCs]
      _________________________________________________________
      CORAM:
           JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

nd 2 September, 2023

SASHIKANTA MISHRA, J. In both the cases, the petitioners have

prayed for quashing of the order of cognizance dated

16.03.2003 passed by learned Presiding Officer, Special

Court under S.C. & S.T. (PoA) Act, Cuttack in ICC Case No.

2 of 2020.

FACTS

2. One Bibhuti Bhusan Behera (opposite party)

lodged an FIR in Lalbag Police Station on 27.10.2016

alleging therein that while he had been to the Orissa High

Court Bar Association Hall, one Sapan Kumar Pal

(petitioner No.3 in CRLMC No. 2113 of 2023) suddenly

abused him in filthy language and attempted to assault

him but because of intervention by other advocates he was

saved. Again at 1.00 p.m. when he entered the Bar

Association Hall with the purpose of meeting his lawyer,

Advocates, Sarojkanta Mandal, Sapan Kumar Pal,

Prasanna Kumar Routray and Madhusudan Panda

encircled him and Madhusudan Panda without any rhyme

or reason abused him in filthy language and also gave two

fist blows on his face causing bleeding injuries. He also

abused the informant saying 'sala keuta‟ etc. Again the

informant was rescued by other advocates. Basing on such

FIR, Lalbag P.S. Case No. 74 of 2018 was registered under

Sections 294/323/506/34 of IPC read with Section

3(1)(r)(s)/(2)(va) of S.C. & S.T. (PoA) Act followed by

investigation. In course of investigation, the I.O. did not

find any evidence of the occurrence as alleged and

therefore, submitted final report stating it as mistake of

fact. The informant thereafter filed a protest petition in the

form of a complaint case being ICC Case No. 2 of 2020 in

the Court below making similar allegations but by adding

the names of seven more advocates in his complaint. The

Court below recorded the initial statement of the

complainant and also conducted enquiry under Section

202 of Cr.P.C. Being satisfied that the allegations made in

the complaint petition find support from his initial

statement and that of the witnesses, the Court below took

cognizance of the aforementioned offences and issued

process against petitioners vide the impugned order.

SUBMISSIONS

3. Heard Mr. G.N. Mohapatra, learned counsel for

the petitioners in CRLMC No. 1943 of 2023 and CRLMC

No. 2113 of 2023 and Mr. S.K. Mishra, learned Additional

Standing Counsel for the State. Though the opposite party

had engaged Mr. P.K. Mallick, Advocate and associates to

represent his case yet despite repeated opportunities said

counsel did not appear on the dates of hearing. However,

the opposite party- complainant also filed a counter

affidavit, which is on record and has been duly considered

by this Court.

4. Mr. Mohapatra has assailed the impugned

order on several grounds as are enumerated below:

(i) The basic ingredient of the offence under Section

3 of the S.C. & S.T. (PoA) Act is absent inasmuch

as there is nothing on record to show that the

complainant belongs to either scheduled caste or

scheduled tribe. Further, the complaint petition is

silent as regards the caste of the accused persons.

(ii) The necessary ingredients to constitute the

alleged offences under the IPC are absent.

(iii) The allegations do not reveal any mens rea

for the accused persons for committing the

offences, which is an essential ingredient in a case

like this.

(iv) Even otherwise, if the allegations are

considered as a whole, it would appear as entirely

improbable to any prudent person.

Mr. Mohapatra has relied upon several case laws in

support of his contentions which would be referred to at

the appropriate place.

5. Mr. S.K. Mishra, learned State Counsel on the

other hand would contend that it is not necessary for the

Court to make a roving enquiry at the time of taking

cognizance of the offences and it would suffice if only a

prima facie case is made out. The materials on record

prima facie show commission of the alleged offences and

therefore, the Court below rightly took cognizance of the

same. Whether, the offences are actually made out or not

would depend on evidence adduced during trial but not at

this stage.

6. The complainant in his counter has referred to

police inaction in relation to the FIR lodged by him initially,

for which he had to approach the National Commission for

Scheduled Castes and Scheduled Tribes. It is because of

intervention of the National Commission that the case was

registered by the Police but only to submit Final Report. It

is further stated that police had done so being influenced

by the accused advocates. As regards the occurrence, it is

stated that the same was reported in several Odia

newspapers at the relevant time. As regards the ingredients

of the alleged offences it is stated that the Bar Association

Hall being a public place and the complainant being

abused and assaulted therein in full view of others, the

offence under Section 3 of the S.C. and S.T. (PoA) Act is

entirely made out. It is also stated that the entire incident

started at the behest of Advocate, Sarojkanta Mandal, for

which the complainant has approached the Bar Council for

taking disciplinary action against him. The Court below

has rightly taken cognizance basing on the statement of the

complainant and the witnesses, which therefore, suffers

from no illegality.

ANALYSIS

7. Before proceeding to examine the merits of the

rival contentions it would be apposite to first keep in mind

the general principles laid down by the Supreme Court for

exercise of inherent power by the High Court to quash a

criminal proceeding in the case of State of Haryana v.

Bhajan Lal, reported in 1992 Supp (1) SCC 335.

102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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 prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations 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 continuance of the proceedings and/or 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 mala fide and/or 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.

8. Coming to the facts of the case, Mr. Mohapatra

has forcefully argued that in the original FIR, the informant

had made allegations only against four advocates, namely,

Sapan Kumar Pal, Sarojkanta Mandal, Prasanna Kumar

Routray and Madhusudan Panda. In his complaint petition

however, he added the names of as many as eight

advocates namely, Bibudhendra Dash, Gagan Chandra

Meher, Baladev Panda, Manas Ranjan Panda, Sudarsan

Behera, Amiya Kumar Mohanty, Ashok Kumar Das and

Gouranga Charan Mohapatra. According to Sri Mohapatra,

this by itself shows the falsity of the allegations. Secondly,

in the FIR it is alleged that Sapan Kumar Pal had abused

him and attempted to assault him during his first visit to

the Bar Association Hall at 11 a.m. and on the second

occasion i.e., at 1 p.m. on the same day on the instigation

of Sapan Kumar Pal, the other three advocates committed

the alleged offences. In his complaint petition however, it is

stated that on the second occasion the other advocates

acted on the direction of Sarojkanta Mandal. According to

Mr. Mohapatra, this shows that the complainant has

himself changed his version of the alleged occurrence from

time to time.

9. As regards the ingredients of the offences under

Section 3 of S.C. & S.T. (PoA) Act, Mr. Mohapatra draws

attention of the Court to the FIR wherein the accused

persons are said to have referred to him as „Keuta toka‟.

Same is also mentioned in the complaint petition. In the

FIR, the complainant has referred to himself as belonging

to the „Keuta‟ caste. Nothing has been stated about his

caste in the complaint petition. However, in his initial

statement he has described himself as „Kaibarta‟ sub-caste

under the scheduled caste. So, according to Mr.

Mohapatra, firstly, there is doubt as to what exactly is the

caste of the complainant and secondly, even assuming that

he belongs to the caste 'Kaibarta/Keuta‟ nothing is stated

either in the FIR or in the complaint petition as regards the

caste of the accused persons. In the case of Gorige

Pentaiah v. State of A.P., (2008) 12 SCC 531: (2008) 41

OCR (SC) the Supreme Court observed as follows;

"5.......As far as Section 3(1)(x) of the Act is concerned, it reads as under:

"3. Punishments for offences of atrocities.-- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

(i)-(ix)***

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;"

6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5-2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."

10. As already stated, neither the FIR nor the

complaint petition nor even the initial statement of the

complainant and the statements of the witnesses examined

on his behalf contain a whisper that the accused persons

do not belong to the scheduled caste. Obviously in the

absence of any such averment/statement it is not for the

Court to draw any presumption as regards the caste of the

accused persons. Thus, this Court finds that the basic

ingredient necessary to constitute the offence under

Section 3 of the S.C. & S.T. (PoA) Act is not made out.

11. As regards the ingredients of the other offences

namely, Sections 294, 323 and 506 IPC, this Court

observes that the allegations appear to be quite improbable

inasmuch as there seems to be no mens rea involved. It has

not been suggested as to why would an advocate abuse a

person visiting the Bar Association Hall out of the blue

unless there is some prior enmity with him or the person

had done something to annoy the advocates. This only

adds to the improbability of the complaint's version of the

alleged occurrence. It is trite law that the surrounding

factors of an occurrence have also to be taken note of to

ascertain whether any criminality exist in the alleged acts.

According to the complainant, Advocate, Sapan Kumar Pal

and Sarojkanta Mandal as the case may be suddenly

abused and assaulted him and also instigated others to do

so but nothing has been said as to their previous

relationship, in the absence of which the reason for the

advocates exhibiting such hostility appears extremely

improbable. Moreover, what would the accused advocates

have gained from the whole affair is not forthcoming nor

discernible from the facts alleged.

12. It must be kept in mind that the accused

persons belong to what is known as the noble profession of

advocacy who are supposed to be intellectually oriented. In

the instant case, barring accused Sapan Kumar Pal and

Sarojkanta Mandal, who are aged 34 and 45 years

respectively, all the others are elderly persons, aged more

than 50 years. Accused Madhusudan Panda is aged 71

years, accused Bibudhendra Dash, 65 years, accused

Gagan Chandra Meher, 66 years, accused Baldev Panda,

59 years and accused Manas Ranjan Panda, 58 years.

Therefore, it is difficult to believe that they would have

abused the informant using such obscene words inside the

Bar Association Hall as also assaulted him and that too for

no apparent reason. One thing this Court is unable to

fathom from the materials on record is the reason for the

accused persons allegedly committing the offence. As

regards the witnesses examined in the enquiry under

Section 202 Cr.P.C. it is seen that three witnesses were

examined who claim to be eye-witnesses to the alleged

occurrence, one of whom namely, Dillip Kumar Sethi is an

Advocate practicing in the High Court of Orissa. The

second and third witnesses examined by the complainant

are housewives and have not stated anything as to why

they were present in the Bar Association Hall at the

relevant time. Surprisingly, witness, Dillip Kumar Sethi,

who is an Advocate has also not stated as to why the

accused persons behaved in the manner as alleged.

CONCLUSION

13. Thus, on an overall consideration of all the

materials on record, this Court finds the allegations

inherently unworthy of belief. It has been held in Bhajan

Lal (supra):

"(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.

14. Similar view was taken in the case of Zandu

Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque,

reported in (2005) 1 SCC 122, wherein it was held that a

case where the FIR of the complainant does not disclose

any offence or is frivolous, vexatious or oppressive, the

proceedings can be quashed.

15. Allowing a criminal proceeding to continue in

such a case would certainly be a travesty of justice. It must

also be kept in mind that a criminal proceeding is not to be

resorted to as a matter of course. One of the paramount

duties of the superior courts is to see that a person who is

apparently innocent is not subjected to persecution and

humiliation on the basis of a false and wholly untenable

complaint. The above view was taken by the Supreme

Court in the case of Mahesh Chaudhary v. State of

Rajasthan, reported in (2009) 4 SCC 439.

16. Thus, from a conspectus of the analysis of

facts and law made hereinbefore, this Court is of the

considered view that the criminal proceedings initiated on

the basis of the complaint lodged by the complainant

cannot be allowed to continue as the same would amount

to an abuse of the process of the Court.

17. Resultantly, the CRLMCs are allowed. The

criminal proceedings in ICC Case No. 2 of 2020 of the

Court of learned Presiding Officer, Special Court under S.C.

& S.T. (PoA) Act, Cuttack are hereby quashed.

.................................. Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 2nd September, 2023/ A.K. Rana, P.A.

Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Reason: Authentication Location: Orissa High Court, Cuttack Date: 04-Sep-2023 18:22:01