[Cites 10, Cited by 0]
Orissa High Court
Tapan Mahalik @ Tapan vs State Of Orissa ..... Opposite Party on 10 December, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4422 of 2025
Tapan Mahalik @ Tapan ..... Petitioner
Kumar Mahalik
Represented By Adv. -
Ashwariya Dash, Adv.
-versus-
State Of Orissa ..... Opposite Party
Smt. S. Nayak, ASC
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
10.12.2025
Order No.
02. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioner as well as learned
counsel for the State. Perused the application as well as the prayer
made therein.
3. By filing the present application under Section 528 of BNSS,
the Petitioner seeks to invoke the inherent jurisdiction of this Court
to quash order dated 19.03.2024 passed by the learned J.M.F.C.,
Pattamundai in G.R. Case No.89 of 2020, arising out of Pattamundai
P.S. Case No.89 of 2020, now pending before the learned J.M.F.C.,
Pattamundai. The above noted P.S. case was registered on the basis
of the FIR lodged at 9:00 hours on 17.02.2020 for commission of
offence punishable under Sections 341, 336, 323, 325, 294 & 34 of
IPC and the FIR was registered as FIR No.89 of 2020 belonging to
the Pattamundai P.S. The Petitioner was the Informant in the above
noted FIR and there are four accused persons, namely Pranati
Mahalik, Trilochan Mahalik, Kuni Mahalik, Anil Mahalik.
4. Learned counsel for the Petitioner, in course of hearing,
drawing attention of this Court to the other FIR which was registered
as Pattamundai P.S. Case No.88 of 2020, submitted before this
Court that the said FIR was registered for commission of an offence
on the basis of the complaint made by one Pranati Mahalik, who
happens to be an accused in the above noted FIR. The said FIR was
registered first as Pattamundai P.S. Case No.88 of 2020 dated
17.02.2020 at 8:45 hours. Since the above noted FIR was registered
for commission of offence under Sections 294, 323, 307, 354, 34 of
IPC, the same is triable by the court of sessions. In the meantime the
charge-sheet has been submitted and the case arising out of
Pattamundai P.S. Case No.88 of 2020 has already been committed to
the court of Sessions. Learned counsel for the Petitioner further
submitted that in G.R. Case No.89 of 2020, which corresponds to
Pattamundai P.S. Case No.89 of 2020, an application was filed at the
instance of the Informant-Petitioner to transfer the case to the court
of Sessions on the ground that the said case is a counter case to the
FIR in Pattamundai P.S. Case No.88 of 2020. Such application was
made under the provisions contained in Section 209 read with
Section 323 of Cr.P.C.
5. The above noted application filed at the instance of the
Petitioner was heard by the learned J.M.F.C., Pattamundai and the
same has been disposed of vide order dated 19.03.2024. Being
aggrieved by such order dated 19.03.2024 rejecting the prayer for
transfer of the case pending before the learned J.M.F.C.,
Pattamundai to the Court of learned Addl. Sessions Judge,
Kendrapara, the Petitioner has approached this Court by filing the
present application. Learned counsel for the Petitioner at this
juncture submitted that the impugned order dated 19.03.2024 is
unsustainable in law as the same has not considered the fact that the
Pattamundai P.S. Case No.89 of 2020 is a counter case to the
Pattamundai P.S. Case No.88 of 2020 of the Pattamundai Police
Station. She further alleged that both the cases arise out of the self-
same occurrence. Learned counsel for the Petitioner further
submitted that the learned trial Court, without examining the
aforesaid issue as is available on the record and the materials placed
before the learned trial Court, has rejected the prayer for transfer of
the case to the court of Sessions.
6. Learned counsel for the State on the other hand contended that
no fault can be found with the order dated 19.03.2024. She further
contended that after examination of the materials on record, the
learned trial Court has passed orders rejecting the prayer of the
Petitioner. She further submitted that since it was not established
that the present case is a counter case, the learned trial Court has
refused to exercise its power under Section 323 of Cr.P.C. On such
ground, learned counsel for the State contended that the present
application, being devoid of merit, is liable to be dismissed.
7. Having heard the learned counsels appearing for the
respective parties, on a careful examination of the background facts,
further taking note of the documents filed along with the application,
this Court observes that two FIRs were registered at the Pattamundai
police station. Pattamundai P.S. Case No.88 of 2020 is a case triable
by Sessions Court and the same has been committed in the meantime
to the court of Sessions. So far FIR No.89 of 2020 is concerned, it
appears that the same is triable by the learned First Class Magistrate.
However, on perusal of the materials, this Court found that the FIR
in Pattamundai P.S. Case No.89 of 2020 has a direct nexus with the
FIR in Pattamundai P.S. Case No.88 of 2020. The Informant in
Pattamundai P.S. Case No.89 of 2020 is an accused in Pattamundai
P.S. Case No.88 of 2020 and the Informant in Pattamundai P.S. Case
No.88 of 2020 is an accused in Pattamundai P.S. Case No.89 of
2020. Both the FIRs were registered at Pattamundai P.S. on the very
same day within a gap of 15 minutes. Moreover, the factual
assertions made in the FIR in both the cases have a direct nexus.
Therefore, at this stage it cannot be ruled out that the Pattamundai
P.S. Case No.89 of 2020 is not a counter case to the Pattamundai
P.S. Case No.88 of 2020.
8. So far the legal aspect is concerned, this Court examined the
provision contained in Section 323 of Cr.P.C., which confers ample
power on the learned Magistrate to transfer any case triable by such
Magistrate to the court of Session at any time before signing of the
judgment, once the learned Magistrate comes to the conclusion that
the trial is being conducted by the court of Sessions. This provision
is applicable to the counter cases where the main case has been
committed to the court of Sessions for trial. In the aforesaid context,
this Court would like to refer to the judgments of this Court reported
in 2002 Vol-1 OLR 481, 2011 Supl. 2 OLR 236. In view of the
aforesaid position, this Court is of the view that the learned
Magistrate has not considered the application in its proper
prospective and by taking into consideration the provisions
contained in Section 323 of Cr.P.C. Hence, this Court is of the
considered view that the impugned order is unsustainable in law.
Accordingly, the same is hereby quashed. Further, the matter is
remanded back to the learned J.M.F.C., Pattamundai to reconsider
the application filed by the Petitioner on 07.09.2023 at Annexure-3
after providing opportunity to all the concerned and dispose of such
application within a period of four weeks from the date of
communication of a certified copy of today's order.
9. With the aforesaid observation/direction, the CRLMC
application stands disposed of.
( Aditya Kumar Mohapatra )
Judge
S.K. Rout
Digitally Signed Page 5 of 5.
Location: High Court of Orissa, Cuttack
Date: 12-Dec-2025 16:37:18
