Surendra Kumar Behera vs State Of Orissa
2023 Latest Caselaw 11135 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

               CRLMC NO.2915 of 2018

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

 Surendra Kumar Behera      ...                       Petitioner
                   -versus-

 State of Orissa                      ...     Opposite Party


 For Petitioner              : Mr. S.Mohanty, Advocate


 For Opposite Parties : Mr. S.R.Roul, ASC


      CORAM:
                JUSTICE G. SATAPATHY

            DATE OF JUDGMENT :12.09.2023

G. Satapathy, J.

                             This   application     U/S.482      of

     Cr.P.C.   seeks    to    quash   the   order    passed      on

25.03.2017 by the learned J.M.F.C., Barbil in G.R.

Case No. 174 of 2010 taking cognizance of offences

vide Annexure-2 and the order unsuccessfully

assailing the aforesaid order taking cognizance of

offence, passed on 21.08.2018 by the learned

Additional Sessions Judge, Champua in Criminal

Revision No. 14 of 2017 vide Annexure-3.

2. The facts in precise are, in the course of

inspection of the Railway sidings at Barbil on

25.01.2010, 27 rake loads of iron ore were found

dispatched to different places through Rail from

01.01.2010 to 25.01.2010, but the consigner and

consignee of such transaction were neither lessee nor

licensees of Joda circle. On suspecting the aforesaid

quantity of dispatched iron rakes were to be product

of theft and connivance of the Railway Authority, the

Deputy Director of Mines, Joda, District Keonjhar

lodged an FIR on 10.03.2010 before the IIC, Barbil

Police Station against unknown persons which paved

the way for registration of Barbil P.S. Case No. 60 of

2010 and ultimately, the same ended up with

submission of charge sheet in C.S. No. 30 dated

07.03.2017 against the petitioner and 39 others for

commission of different offences, but the learned

J.M.F.C., Barbil on consideration of materials and

finding prima facie satisfaction took cognizance of

offence U/Ss. 379, 420, 468, 471, 120(B) of the IPC

which was assailed by the petitioner before the

learned Additional Sessions Judge, Champua in

Criminal Revision on the ground of limitation, but the

learned Additional Sessions Judge, Champua after

taking note of the fact of taking cognizance of various

offences by the learned J.M.F.C., Barbil considers it

inappropriate to segregate the offences against the

present petitioner and dismissed the criminal

revision. Hence, the present CRLMC by the petitioner.

3. Mr.S.Mohanty, learned counsel for the petitioner

has submitted that the petitioner challenges the

impugned order taking cognizance of offence and

consequently, the order passed by learned Additional

Sessions Judge refusing to interfere the order taking

cognizance of offence on a very short ground of "Bar

to taking cognizance of offence after lapse of period

of limitation". Mr.Mohanty has further submitted that

since charge sheet was submitted against the

petitioner for offence U/S. 379/120-B of the IPC after

gap of seven years and the limitation for taking

cognizance of such offences being three years in

terms of Section 469 of the Cr.P.C., the impugned

order taking cognizance of offence and consequently

the revisional order refusing to interfere with the

order taking cognizance of offence are bad in the eye

of law and both the orders are, accordingly required

to be quashed. On the aforesaid submissions,

Mr.Mohanty prays to quash the impugned order

taking cognizance of offence and consequently the

revisional order.

4. On the other hand, Mr.S.R.Roul, learned ASC has,

however, supported the impugned order and

consequently the order passed in the revision by

submitting inter alia that the aforesaid orders being in

accordance with law cannot be faulted with and the

present CRLMC being unmerited is liable to be

dismissed. Mr.Roul accordingly prays to dismiss the

CRLMC.

5. A plain glance of the materials placed on record,

it admittedly appears that FIR was lodged against

unknown persons on 10.03.2010 and it was

registered vide Barbil P.S. Case No. 60 of 2010 for

commission of offences U/S. 379/120B of the IPC and

the occurrence or offence as noted in Col. No. 3(b) of

the FIR discloses the date of occurrence or offence to

be from 01.01.2010 to 25.01.2010 and charge sheet

No. 30 dated 07.03.2017 was received in the Court

for offence U/Ss. 379/420/468/471/120B of the IPC

against the petitioner and others, but on finding

prima facie materials and satisfaction, the learned

J.M.F.C., Barbil took cognizance of aforesaid offences

by the impugned order passed on 25.03.2017. The

learned JMFC while taking cognizance for aforesaid

offences has, however, observed in the impugned

order that he is prima facie satisfied for commission

of offence U/S. 379/120B of the IPC against the

petitioner and 19 others.

6. Chapter XXXVI of the Code of Criminal

Procedure, 1973 (in short, "Code") provides for

limitation for taking cognizance of certain offences

and Section 468 of the Code prescribes bar to taking

cognizance after lapse of the period of limitation and

Clause(c) of Sub-Section-2 to 468 of Code prescribes

a period of three years for taking cognizance of

offence, if the offence is punishable with

imprisonment for a term exceeding one year, but not

exceeding three years, but Sub-Section 3 which was

inserted subsequently by way of amendment vide Act

45 of 1978, Section 33 with effect from 18.12.1978

clarifies that for the purpose of this section, the

period of limitation in relation to offences which may

be tried together, shall be determined with reference

to the offence which is punishable with more severe

punishment or, as the case may be, the most

severe punishment. In the present case, there is no

dispute about learned JMFC, Barbil taking cognizance

of offences U/Ss. 379/420/468/471/120B of the IPC,

out of which offence U/Ss. 420/468/471 of the IPC

are punishable up to seven years and, therefore,

there is no limitation period for taking cognizance of

such offences. Further, cognizance of offence is

taken, but cognizance is not taken against accused

persons and by no stretch of imagination, it can be

said in this case that the learned J.M.F.C., Barbil took

cognizance of offence U/S. 379/120B of IPC against

the petitioner. Hence, the contention raised by the

petitioner that the impugned order taking cognizance

is barred by limitation is unmerited and accordingly

rejected.

7. Another significant point of law is when 2nd

Revision against an order is not maintainable in terms

of Sec. 397(3) of the Cr.P.C., whether the said order

after it was unsuccessfully challenged in the revision

before the Sessions Judge can be impugned again

before the High Court in the guise of exercise of power

U/S. 482 of Cr.P.C. This question has been answered in

Krishnan and another v. Krishnaveni and another;

(1997) 4 SCC 241, wherein the Apex Court in para-10

has held as under:-

" Ordinarily, when revision has been barred by Section 397(3) of the Code, a person--accused/ complainant--- cannot be allowed to take recourse to the revision to High Court U/S. 397(1) or under inherent power of High Court U/S. 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that High Court has suo motu power U/S. 401 and continuous supervisory jurisdiction U/S. 483 of the Code. So when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected

at the inception lest grave miscarriage of justice would ensue."

8. In view of the aforesaid admitted position of law

and taking into account the fact that the learned

Magistrate being satisfied with materials placed

before him has taken cognizance of offences, some of

which are punishable up to seven years, the

challenge of the petitioner to the impugned order

taking cognizance of offences has no merit and

consequently, no ground is made out to interfere with

the impugned order taking cognizance of offences

and consequently the revisional order confirming the

order taking cognizance of offences.

9. In the result, the CRLMC stands dismissed on

contest, but in the circumstance there is no order as

to costs.

(G. Satapathy) Judge

Signature Not Verified Digitally Signed Orissa High Court, Cuttack, Signed by: KISHORE KUMAR the 12th of September, 2023/kishore Dated SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 12-Sep-2023 15:37:45