Orissa High Court
Brajaraj Mahapatra & Ors vs State Of Odisha & Another .... Opposite ... on 10 September, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 3277 of 2017
Brajaraj Mahapatra & Ors. .... Petitioner
Mr. H.S. Mishra, Advocate
-versus-
State of Odisha & another .... Opposite Parties
Mr. A.K. Apat, Addl. P.P
Mr. Arijit Mishra, Advocate
for O.P. No.2
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 10.09.2025
Chittaranjan Dash, J.
1. Heard learned counsels for both the parties.
2. By means of this application the Petitioners seek to quash
the entire proceedings in connection with I.C.C. Case No.15 of
2016, arising out of G.R. Case No. 165 of 2014, pending before the
learned S.D.J.M., Birmaharajpur.
3. The background facts are that, on 06.09.2014, Opposite
Party No.2 lodged a written report before the Officer-in-Charge of
Subalaya Police Station alleging that at about 11:00 p.m., on the
said date, Petitioner No.1 kidnapped his ailing sister from his house
with the intention of grabbing her property and killed her. It was
further alleged in the report that the entire property of the deceased
had been removed from her house by breaking open the premises.
On receipt of the report, the police registered Subalaya P.S. Case
No. 41 of 2014 and took up investigation.
In the course of investigation, the I.O. the I.O. took note of
the fact with regard to the Subalaya P.S. U.D. Case No.1 of 2013.
The police examined 24 witnesses, collected material documents
including the medical prescriptions of the deceased, CT scan report,
and Death Certificate, and after thorough investigation submitted a
Final Form on 14.10.2015, returning the case as a "mistake of fact"
against Petitioner No. 1.
Being aggrieved by the aforesaid Final Report, Opposite
Party No. 2 filed a complaint not only against Petitioner No.1 but
also against his close relations, including his wife and sons. On the
basis of the statements recorded under Section 202 Cr.P.C., the
learned S.D.J.M. took cognizance of offences under Sections
379/302/356/357/364/460/457/34 of the Indian Penal Code and
implicated the present Petitioners.
4. Mr. H. S. Mishra, learned counsel for the Petitioners, in the
course of hearing of the application, inter alia, submitted that late
Bishnupriya Sahu, the sister of Opposite Party No.2, was never
looked after by him. It was submitted that Bishnupriya Sahu (the
deceased) was suffering from paralysis and was completely
bedridden. Petitioner No.1 had been taking care of her by providing
food, shelter, and every possible medical attention, including
treatment at Birmaharajpur Hospital as well as Burla Medical
College. However, she passed away on 04.08.2013 in the house of
Petitioner No.1. On her death, Petitioner No.1 informed Opposite
Party No.2 and requested him to take the body for cremation, but
Opposite Party No.2 did not respond. Thereafter, Petitioner No. 1
informed the local Sarpanch and villagers, and the matter was also
intimated to Subalaya P.S. Accordingly, Subalaya P.S. U.D. Case
No. 1 of 2013 was registered, inquest over the dead body was held,
and post-mortem examination was conducted. The doctor opined
that the deceased had died of natural causes, namely, cardiac arrest.
Mr. Mishra further contended that the allegations made in
the protest petition filed by Opposite Party No.2, which was treated
as a complaint petition, were intended only to harass Petitioner
No.1. The materials collected in Subalaya P.S. U.D. Case No.1 of
2013 as well as in G.R. Case No. 165 of 2014 clearly established
beyond reasonable doubt that the death was natural and that no one
was responsible for it. He further contented that on the contrary,
Petitioner No.1 had taken every possible care of the deceased. The
allegations made in the protest petition were therefore actuated by
ulterior motive, based merely on surmises and conjectures, and
stood contradicted by the documents seized by the police during
investigation. Mr. Mishra argued that the cognizance taken by the
learned court on the basis of the initial statements of Opposite Party
No.2 and others was based on no evidence. The impugned order of
cognizance, being cryptic, mechanical, and unsupported by valid
reasons in law, and implicating the Petitioners in grave offences
such as under Section 302 IPC despite a discreet investigation
revealing otherwise, deserves to be quashed.
5. Mr. Arijit Mishra, learned counsel appearing on behalf of
the Informant, contended that the impugned order is in consonance
with the statements recorded during the inquiry under Section 202
Cr.P.C. as well as the other materials available on record. He
argued that the learned Magistrate, upon due consideration of such
materials, has rightly taken cognizance of the offences against the
Petitioners, and does not warrant any interference in exercise of
inherent jurisdiction. Mr. Mishra further submitted that the scope of
quashing is limited and unless the allegations taken at their face
value fail to disclose the commission of any offence, the
proceedings cannot be stifled at the threshold.
6. Having heard the learned counsel for the parties, this Court
perused the Case Diary produced by the State, as well as the
statements of witnesses recorded under Section 202 Cr.P.C. From
the said statements, it appears that on 18.07.2013 Opposite Party
No.2 had gone to Puri, and on that day Petitioner No.1 shifted the
deceased to his house. On his return, when Opposite Party No.2
visited the house of the Petitioner, he was allegedly not allowed to
meet his sister, though he claimed to have heard her crying.
Thereafter, on 22.07.2013, he lodged a report with the police, but
no action was taken, and subsequently the deceased died on
04.08.2013.
7. In order to sustain a charge under Section 302 IPC, there
must be cogent material to establish that the death was homicidal in
nature and that it was caused by the intentional act of the accused.
Mere allegations that a person has been killed or murdered, without
any supporting evidence, cannot by themselves attract the offence
under Section 302 IPC. A perusal of the statements recorded during
the inquiry under Section 202 Cr.P.C. reveals that there is
admittedly no material to show that the Petitioners had caused the
death of the deceased. Nothing has been brought on record to
contradict the materials collected and seized during investigation,
nor is there any prima facie indication that the investigation was
perfunctory or that the post-mortem report was false or fabricated.
8. On the contrary, the materials on record, including the
inquest report, the post-mortem report, and the witness statements
in Subalaya P.S. U.D. Case No. 1 of 2013 as well as Subalaya P.S.
Case No. 41 of 2014, reveal no mala fide or foul play on the part of
the investigating or enquiring authority. The statements clearly
indicate that while the deceased was the sister of Opposite Party
No.2, she was not being looked after by him and, for that reason,
was residing in the house of Chittaranjan Mohapatra (Petitioner
No.3), who had been providing her with food, shelter, and medical
attention. After she suffered a paralysis attack, she was taken to
Birmaharajpur Hospital and later shifted to Burla Medical College
for better treatment. Upon her return from treatment, she continued
to stay in the house of Chittaranjan, where she ultimately passed
away on 04.08.2013. It is also not disputed that, despite being
informed about her death, Opposite Party No. 2 did not take any
steps for her cremation. In such circumstances, Petitioner No. 3,
Chittaranjan Mohapatra, called the village elders and the Sarpanch,
informed the police, and ensured that all legal formalities were duly
observed before the dead body was cremated.
9. It is well settled that when, upon completion of
investigation, the police submit a final report, the Magistrate has
several courses open to him. He may accept such report and drop
the proceeding after providing an opportunity of hearing to the
complainant; he may take cognizance under Section 190(1)(b)
Cr.P.C. and issue process to the accused; or he may direct further
investigation. The Magistrate also has the option of treating the
protest petition filed by the complainant as a complaint case.
Chapter XIV of the Code of Criminal Procedure, which deals with
the conditions requisite for initiation of proceedings and the powers
of cognizance of a Magistrate, is relevant in this context. For better
appreciation, the provision of Section 190 Cr.P.C. may be referred
to.
10. It is trite law that a Magistrate, while considering the
materials before him, can take into account the statements of
witnesses examined by the police during investigation and, on that
basis, take cognizance of the offence complained of and issue
process against the accused. Section 190(1)(b) Cr.P.C. does not
mandate that cognizance can be taken only when the I.O. opines
that a prima facie case is made out. The Magistrate is not bound by
such opinion; rather, he is empowered to independently apply his
judicial mind to the materials that have surfaced during
investigation and, if satisfied, proceed to take cognizance of the
offence.
11. However, while dealing with a grave offence such as
murder under Section 302 IPC, the Magistrate's role in taking
cognizance on the basis of a protest petition assumes greater
significance and demands a meticulous application of judicial mind.
A protest petition is ordinarily filed by an aggrieved party who is
dissatisfied with the final report, either because the case has been
closed or because the report has been submitted under a lesser
offence. It is well settled that the Magistrate is not bound by the
conclusions drawn by the police in the final report and must
independently evaluate the materials placed before him. At the
same time, the Magistrate is not required at the stage of cognizance
to determine the guilt of the accused or to weigh the evidence as if
conducting a full-fledged trial; the limited requirement is to
ascertain whether the materials disclose a prima facie case
justifying the issuance of process against the accused.
12. The Hon'ble Apex Court in the matter of Pepsi Foods Ltd.
and Another vs. Special Judicial Magistrate and Others (1998) 5
SCC 749, has held in the following words:
"Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a
matter of course. It is not that the complainant has to
bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The
order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the
case and the law applicable thereto. He has to examine
the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to
succeed in bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. Magistrate has to carefully scrutinize the
evidence brought on record and may even himself put
questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused."
13. The above dictum underscores the necessity of a cautious
and judicious approach while summoning an accused, in cases
resting upon protest petitions. Law is further well settled that the
closure of a case by the investigating agency on the ground of
"mistake of fact" is a recognised and valid procedure in Indian
criminal jurisprudence and cannot be brushed aside mechanically.
The underlying principle is that no person should be subjected to
criminal prosecution or held culpable merely on the basis of
suspicion, in the absence of the essential element of mens rea. A
"mistake of fact" arises when a person, acting under a genuine and
reasonable misapprehension of the factual circumstances, performs
an act which, if the facts were as believed, would not constitute an
offence. In such a situation, fastening criminal liability would be
contrary to the settled principles of criminal law.
14. Furthermore, the Co-ordinate Bench of this Court decided in
the matter of Bichitrananda Paramanik vs. State of Odisha & Anr.
passed in CRLMC No.1739 of 2015, held as under:
"9. .... A court is not to engage itself for the formality
sake, in an enquiry under Section 202 Cr.P.C., where
murder is alleged and to rest its decision on oral
evidence only to form its opinion as that could lead to
miscarriage of justice subjecting the accused to face a
trial for a grievous offence without any justification.
An enquiry by a Magistrate is a solemn act which is to
be accomplished with all sincerity and fairness since a
decision at the end is to show the direction and the way
which is to impact the prosecution and the defence if
not properly guided. Any lapse or lackadaisical
approach of a court during enquiry would have
cascading effect jeopardizing the rights of the parties
and therefore, its importance is never to be undermined
and underestimated. In the case at hand, it is
conspicuous to notice that no detailed enquiry was
made by the learned court below under Section
202 Cr.P.C. to unearth the proximate cause of death of
the deceased for the purpose of taking cognizance of
the offence but by merely accepting the oral testimony
of the witnesses straightaway jumped to a conclusion
that the petitioner to have committed the murder
without any incriminating material received on record
which is clearly indefensible. During such enquiry
under Section 202 Cr.P.C., a court does have wide
scope and power to search for evidence to satisfy and
convince itself about an offence whether to have been
committed and could even direct police investigation.
So, in such a situation, a purposeful enquiry
under Section 202 Cr.P.C. is indispensable otherwise
there is every possibility of the court being
misdirected."
15. In the matter of Vinubhai Haribhai Malaviya and Ors. vs.
State of Gujarat and Anr., reported in (2019) 17 SCC 1, the
Hon'ble Apex Court has held as follows -
"17. It is clear that a fair trial must kick off only after an
investigation is itself fair and just. The ultimate aim of all
investigation and inquiry, whether by the police or by the
Magistrate, is to ensure that those who have actually
committed a crime are correctly booked, and those who
have not/are not arraigned to stand trial That this is the
minimal procedural requirement that is the fundamental
requirement of Article 21 of the Constitution of India
cannot be doubted. It is the hovering omnipresence
of Article 21 over the Cr.P.C. that must needs inform the
interpretation of all the provisions of the Cr.P.C., so as to
ensure that Article 21 is followed both in letter and in
spirit."
16. As reiterated above, the ultimate object of investigation and
inquiry is to ensure that actual offenders are prosecuted while
innocent persons are not unnecessarily dragged into trial, this being
the minimal safeguard flowing from Article 21 of the Constitution.
Applying the said principle to the facts of the present case, it was
incumbent upon the court to have carefully examined the materials
on record in the backdrop of the detailed investigation conducted.
Only upon such scrutiny could a logical conclusion have been
reached as to whether taking cognizance was warranted. In the
absence of such consideration, the impugned order suffers from
non-application of mind and cannot be sustained in law.
17. In the result, the impugned order passed in I.C.C. Case No.
15 of 2016 pending before the learned S.D.J.M., Birmaharajpur is
hereby set aside, and the matter is remitted to the learned court
below to proceed afresh in accordance with law and in the light of
the observations made hereinabove.
18. Accordingly, the CRLMC is disposed of.
(Chittaranjan Dash)
Judge
Sisir
Designation: Personal Assistant
