Orissa High Court
Pilata Tandi & Another vs State Of Odisha & Another ....... ... on 29 January, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.5384 of 2023
(In the matter of an application under Section 482 of the Code of
Criminal Procedure, 1973)
Pilata Tandi & another ....... Petitioners
-Versus-
State of Odisha & another ....... Opposite Parties
For the Petitioners : Mr. Jiban Ranjan Dash, Advocate
For the Opp. Parties : Mr. Debasish Biswal
Additional Standing Counsel
(For the Opp. Party No.1)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 26.09.2024 : Date of Judgment: 29.01.2025
S.S. Mishra, J. By invoking the inherent jurisdiction of this Court under Section
482 of Cr.P.C., the petitioners have assailed the order dated 28.08.2023
passed by the learned S.D.J.M., Dharamgarh in 1.C.C. No.06 of 2023,
whereby the cognizance of the offence punishable under Section 436 of
the IPC has been taken against the petitioners.
2. The present case is pertaining to an incident happened on 22.05.2016.
On the next day, i.e., on 23.05.2016, the F.I.R. being Golamunda P.S.
Case No.49 of 2016 was registered.
3. The allegation in the F.I.R. in brief was that on 22.05.2016, at about 6
A.M., while the complainant Santosh Hati had been to the market, at that
time, the accused persons namely, Pilata Tandi, Bideshi Tandi (the
petitioners) and Ananda Sunani (dead) set fire to the residential house of
the complainant. It was alleged that the same incident was witnessed by
the wife of the complainant Baidei Hati, one Kurukhetra Bag and
Sadananda Bag. It is further alleged that, even on the protest of the
witnesses, the petitioners went ahead and set the house on fire and also
threatened them. In the afternoon, when the complainant returned home
from the market, he heard the incident from his wife and registered the
F.I.R. for the alleged commission of the offence punishable under
Section 436 of the IPC.
Page 2 of 11
4. The police undertook the investigation and on 30.06.2016, filed the
Final Form, inter alia, arriving at the conclusion as under:
"During course of investigation I visited the spot, examined the complt
and witnesses and recorded their statements u/s 161 Cr.P.C., seized 2
nos. of half burnt wooden pieces from the spot. Engaged reliable spy,
contacted the near by people and the villagers but none could give any
clue towards detection of the case. The complainant has suspected Pilata
Tandi, Bideshi Tandi and Ananda Sunani in this case but as per the
statement of witnesses there is no evidence against Pilata Tandi, Bideshi
Tandi and Ananda Sunani in this case. Pilata Tandi along with others
have extinguished the fire. Bideshi Tandi and Ananda Sunani were not
available at the spot at the time of occurrence. None have seen them near
the spot. All possible steps were taken to work out clue in this case but no
clue could be obtained. Submitted compliance to the instruction imparted
in the S. Note of SDPO Dharamgarh and received order from S.P.
Kalahandi to return the case as FRT no clue u/s 436 IPC vide message
no.1419/DCRB DR dt. 30.6.16."
5. Aggrieved by the investigation, the complainant filed the protest
petition, which was registered as I.C.C. No.6 of 2023. The complainant
recorded his initial pre-summoning statement and the statement of his
wife under Section 202 of the Cr. P.C.
6. The learned trial Court, vide impugned order dated 28.08.2023 has
taken the cognizance of the offence under Section 436 of the IPC against
the petitioners. The petitioners have challenged the said order in the
present proceeding.
Page 3 of 11
7. Heard Mr. J.R. Dash, learned counsel for the petitioners and Mr. D.
Biswal, learned Additional Standing Counsel for the opposite party
No.1-State.
8. Mr. Dash, learned counsel for the petitioners has taken me to the
statements of the witnesses recorded under Section 161 of the Cr. P.C.
by the police and also the pre-summoning evidence adduced by the
complainant in the protest petition. Mr. Dash, learned counsel has
contended that the Court below has taken the cognizance of the offence
without appreciating the fact that the complainant has failed to adduce
adequate preliminary evidence in support of his case.
9. The learned trial Court has taken the cognizance of the offence U/s
436 of the IPC in a mechanical manner, as from the admitted facts, no
case is made out under Section 436 of the IPC. He has also pointed out
that the wife of the complainant had earlier also registered another F.I.R.
being C.T. Case No.208 of 2016 against unknown persons making the
same allegations. He contended that except the oral statement of the wife
of the complainant, there is no other evidence on record which supports
the case of the complainant.
Page 4 of 11
10. To buttress his argument, he has relied upon the judgment of this
Court in the case of Dibakar Singh and another vs. Birakishore Jarika,
reported in 2004 (II) OLR 67 and submitted that on the basis of solitary
oral version of the wife of the complainant devoid of any other material,
the petitioner should not be subjected to rigours of trial for such a serious
crime, which is destined to be a futile exercise.
11. Mr. Biswal, learned Additional Standing Counsel for the State, on
the contrary, has supported the impugned order. While justifying the
impugned order, Mr. Biswal submitted that the cognizance has been
taken on the basis of the averments made in the protest petition
supported by the statement of the complainant and the eye witnesses,
namely, the wife of the complainant. Therefore, no fault could be found
from the impugned order.
12. I have carefully perused the evidence brought on record. During the
investigation, the police recorded the statement of the complainant, his
wife and the statement of the independent witnesses, namely, Pilata @
Jagatram Tandi, Aga Kaibarta, Sibani Kaibarta, Sana Kaibarta, Gomati
Hati and Gokula Majhi.
Page 5 of 11
13. I have perused those statements of the complainant and witnesses. In
the statements recorded under Section 161 of the Cr. P.C., the
complainant and his wife have categorically stated that the present
petitioners have tried to douse the fire. They have also stated that, they
have not seen, who has set the fire to their house. The wife of the
complainant, who is stated to be the eye witness, has also mentioned
that, it is the petitioners, those who have extinguished the fire. She has
not seen exactly who had set the fire. She has also taken the name of the
villagers at whose presence, the incident had taken place. The statements
of all the named witnesses have been recorded by the police. All the
witnesses in unison have stated that, it is the present petitioners, who had
extinguished the fire set by the unknown persons.
14. Taking into consideration the oral statements made by the witnesses
and by taking into consideration the other aspects of the matter, the
police has rightly filed the closure report.
15. The complainant, feeling aggrieved, has filed the protest petition,
inter alia, making the following allegation:
Page 6 of 11
"That, on dated 22.5.2016 at about 6 A.M. while the complainant had
been to the Chalna Market at that time the accused persons namely
Pilata Tandi, Bideshi Tandi and Ananda Sunani (dead) set fire the
residential house of the complainant, at that time the above named
witnesses protest the act of the accused persons and requested them
not to do such type of work but by hearing this the accused persons
became furious and threatened them with dire consequence and set
fire the house of the complainant."
16. In support of the aforementioned grievance of the complainant made
in the protest petition, he recorded his own statement under Section
200/202 Cr. P.C., inter alia, stating as under:
"01. About 7 years back, the incident has occurred. I had been to
market, returned home about 3 P.M. I saw my house was burnt.
02. My wife told me Ananda Sunani, Bideshi Tandi and Pilata Tandi
has set our house into fire. Then at Golamunda P.S. I lodged FIR but
police took no action. Therefore, I filed this complaint case before your
hon'ble Court."
The complainant has also recorded the statement of his wife under
Section 202 of the Cr. P.C., who inter alia, stated as under:
"01. My husband has foisted this complaint case against Pilata Tandi
& Bidesi Tandi. 7 years back in the wee hour I was cleaning dish at that
time accused persons reached my house and set it into fire. My husband
had gone to market. One Kurukhetra and another Sadananda were
present at the spot.
02. When my husband returned home about 3 P.M. I told him the
matter. Then we went to police station to lodge FIR but police did not
visited the spot and submitted the report carelessly."
Page 7 of 11
17. No other statement of any independent witness has been recorded
by the complainant in support of his protest petition. The learned trial
Court, on the basis of the aforementioned enquiry under Section 202 Cr.
P.C. has taken the cognizance of the offence punishable under Section
436 of the IPC against the petitioners.
18. It is apparently clear from the record that, except the isolated
statement of the wife of the complainant, there is no other evidence came
on record to support the case of the complainant.
19. On the contrary, all the named eye witnesses made categorical
statements before the police that the present petitioners were not
responsible for the alleged commission of the offence. Equally, the wife
of the complainant in her statement recorded by the police during
investigation had also stated that the present petitioners have
extinguished the fire set in her residence by the unknown persons. She
has taken the name of many villagers those who had witnessed the
occurrence. The statements of the named witnesses were conspicuously
not recorded by the complainant under Section 202 Cr.P.C. The wife of
the complainant in her statement before the police has also stated that
Page 8 of 11
she is suspecting that the people those who have doused the fire, might
be involved in setting her residence on fire. Her past conduct of
registration of the F.I.R. on similar facts against the unknown persons
also assume importance while considering this case.
20. Taking into consideration the evidence in its entirety collected by
the police and the pre-summoning statement recorded by the
complainant, I am convinced that no prima facie case is made out against
the petitioners for the alleged commission of the offence punishable
under Section 436 of the IPC. Moreover, the learned trial Court has
committed an error by not examining all the witnesses relevant to the
case before issuing the process.
21. Section 202 (2) Cr.P.C. mandates that the cognizance taking
Magistrate to ensure that the statements of all the witnesses are recorded
before taking the cognizance and issuing the process against the accused
persons.
22. This Court, in Dibakar (supra) has held as under:
"6. It appears that on examination of the complainant and his witnesses
produced, the learned C.J.M. considered such statements on 5.4.1994 and found
that the evidence is not sufficient to take cognizance of the offences and, therefore,
Page 9 of 11
directed the complainant to cause production of the victim lady, his mother and
other witnesses, if any, for examination under Section 200 Cr.P.C. The learned
Magistrate having come to the conclusion that there is no sufficient evidence to take
cognizance ought to have conducted an enquiry under Section 202 Cr.P.C , but
asked the complainant to produce his witnesses under Section 200 Cr.P.C and
thereafter examined such witnesses and has taken cognizance by order dated
28.5.1994. When prima facie the offence was under Sections 457 and 376 I.P.C., the
learned C.J.M. ought to have conducted the enquiry under Section 202 Code of
Criminal Procedure and if satisfied that a case is made out, taken cognizance
thereunder. The case thereafter was transferred on 7.3.1995 to the Court of learned
J.M.F.C., Udala and the learned Magistrate issued process on 13.4.1995 without
considering the materials and the statements of witnesses recorded under Section
202 Code of Criminal Procedure. Thus, the procedure followed is contrary to the
provisions of proviso to Sub-section (2) of Section 202 Code of Criminal Procedure
and, therefore ,the order of cognizance dated 28.5.1994 is vitiated in law. The
learned C.J.M., on consideration of the complaint and the initial statements
recorded, if was satisfied that there are sufficient grounds for proceeding, he could
have issued process to the accused, but before that is done, he has to comply with
the requirement of Section 200 Code of Criminal Procedure and record the
evidence of the complainant or his witnesses or could have postponed the issue of
process and directed an enquiry by himself. But, however, the offence under Section
376 I.P.C. being exclusively triable by the Court of Session, he was required to
comply with the mandatory provisions of Section 202 (2) Code of Criminal
Procedure before issuing process to the accused persons. It is well settled principle
of law that in a case exclusively triable by a Court of Session, no cognizance can be
taken by a Magistrate without examining all the witnesses for the complainant as
required under the proviso to Section 202 (2) Code of Criminal Procedure In any
event, an order of cognizance, in cases exclusively triable by the Court of Session
could not be made on the basis of the complaint without examining all the witnesses
and that is clearly in violation of the proviso to Sub-section (2) of Section 202 Code
of Criminal Procedure A reference may be made to the decision of the Apex Court
in Kewal Krishan v. Suraj Bhan and Anr.; MANU/SC/0143/1980 : A.I.R. 1980
S.C.1780.
23. Taking into consideration the factual scenario of the present case
and the law occupying the field, this Court is of the view that the
impugned order dated 28.08.2023 passed in 1.C.C. No.06 of 2023
Page 10 of 11
(arising out of C.T. Case No.208 of 2016), whereby the learned
S.D.J.M., Dharamgarh has taken the cognizance of the offence
punishable under Section 436 of the IPC, is not sustainable under law
and on facts. Hence, the same is set aside.
24. Accordingly, the CRLMC is allowed and disposed of.
......................
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
The 29th January, 2025/Subhasis Mohanty, Personal Assistant
Designation: Personal Assistant
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 31-Jan-2025 17:30:22
