Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK CRLMC No.409 of 2016 In the matter of application under Section 482 of the Criminal Procedure Code, 1973. --------------- AFR Santosh Kumar Nanda ..… Petitioner -Versus- State of Orissa and another ….. Opp. Parties For Petitioner : Mr. P.K. Nanda, Advocate For Opp. Parties : Mr. S.R.Roul, ASC, [O.P. No. 1] None [O.P. No.2] P R E S E N T: HONOURABLE MR. JUSTICE G. SATAPATHY Date of hearing: 02.01.2023: Date of judgment:16.01.2023 G.SATAPATHY, J. The Petitioner by way of this application under Section 482 Cr.P.C seeks indulgence of this Court to quash the order taking cognizance of offences and consequently, the entire criminal proceeding in G.R. Case No. 369 of 2014 of the Court of learned J.M.F.C., Banapur // 2 // on the ground that the criminal proceeding has been deliberately initiated with an mischievous intention with perfunctory investigation. 2. The sequel of facts resulting in this CRLMC are
Facts
on 04.04.2014, the Petitioner lodged an FIR against one Samir Kumar Das and others for kidnapping his minor daughter which was registered vide Banpur P.S. Case No. 94 of 2014 and accordingly, the accused persons were arrested and his minor daughter was rescued. Bearing the grudge, on 22.08.2014 at 6PM the accused Samir Kumar Das obstructed the Petitioner at Nachuni Bazar and abused him in filthy language and assaulted the Petitioner on his head and in such assault, other accused persons were also joined with the accused Samir Kumar Das and due to such assault, the Petitioner got injured and was immediately shifted to C.H.C., Banapur for his treatment. On this incident, the Petitioner lodged an FIR vide Banapur P.S. Case No. 244 of 2014 against the said Samir Kumar Das and others, but in order to get rid of that case, the // 3 // mother of the said accused Samir Kumar Das lodged an FIR against the Petitioner and others at Nachuni outpost Banapur for assault on his son and outraging her modesty as well as threatening and accordingly, Banapur P.S. Case No. 243 of 2014 was registered. Both the cases were investigated into by one A.S.I. who filed charge-sheet against the Petitioner in Banapur P.S. Case No. 243 of 2014 corresponding to G.R. Case No. 369 of 2014 and on being satisfied, the learned J.M.F.C., took cognizance of offences by the impugned order under annexure-2. According to the Petitioner, although he had sustained injuries on his head by the assault of Samir Kumar Das and others, but they in order to get rid of such case has falsely implicated him and the Investigating Officer without conducting any proper investigation has accordingly submitted charge-sheet against the Petitioner in a partisan manner and the learned J.M.F.C., mechanically accepting the report of police took cognizance of offences. On the above averments, the
Legal Reasoning
Petitioner has approached this Court in this CRLMC for the // 4 // relief indicated in the preceding paragraph. In the course of hearing of the CRLMC, Mr. P.K. Nanda, learned counsel for the Petitioner has submitted that the Petitioner is an unfortunate father whose daughter was kidnapped and sexually assaulted by the son of the Informant and thereby, they are facing trial in that case for different offences including offence under POCSO Act, but bearing grudge for the said case, the son of the Informant had assaulted the Petitioner on his head subsequent to lodging of an FIR by the Petitioner for kidnapping his daughter and accordingly, the Petitioner had sustained serious injury on his head, but the I.O. without obtaining the injury report of the Petitioner has joined hands with the Informant and conducted perfunctory investigation by placing a charge-sheet against the Petitioner in this case. It is further submitted that the present criminal proceeding has been deliberately initiated with mischievous intention at the instance of the Informant and her son to put pressure on the Petitioner to not to proceed against the son of the Informant in the case of sexual // 5 // assault and the I.O. in order to help the Informant and her son has placed charge-sheet against the Petitioner in this case with perfunctory investigation. 3. In reply, Mr. S.R. Roul, learned A.S.C., by taking through the facts of the case has submitted that there is nothing wrong in the criminal proceeding initiated against the Petitioner for assault on the son of the Informant and the learned J.M.F.C., has not committed any error in taking cognizance of offences by duly applying his mind to the material produced before him. It is further submitted that the Petitioner has failed to make out any case to indicate that no case is made out against him nor is it the case of the Petitioner that the uncontroverted allegation raised against him do not disclose any prima facie case or the ingredient of offences for which cognizance was taken. Learned A.S.C. accordingly, has prayed to dismiss the CRLMC. 4. After having bestowed a careful consideration to the rival submission upon perusal of the materials // 6 // produced by the parties in this CRLMC, there appears no dispute about one Binu Das lodging an FIR against the Petitioner and others in Banpur P.S. Case No. 243 of 2014 on the allegation of assaulting her son by giving fist and kick blows as well as assaulting one Prafulla Patra causing injury to him and also abusing and disrobing her with intention to outrage her modesty and giving out threatening to her. It is also not disputed by the Petitioner that the case lodged by him vide Banapur Case No. 244 of 2014 and the case lodged against him in Banapur P.S. Case No. 243 of 2014 were investigated into by one and same Police A.S.I. of Banapur Police Station who has filed charge-sheet against the Petitioner and thereafter, the learned J.M.F.C., Banapur by the impugned order has taken cognizance of offence and issued summons to the Petitioner and others. It appears to the Court that the Petitioner has alleged against the I.O. for perfunctory investigation in the case lodged by him for not obtaining his injury report, but law is well settled that the perfunctory investigation done in the case lodged by the // 7 // Petitioner cannot and shall not be a ground for quashing the criminal proceeding lodged against him by another person, unless there appears no case is made out against him or the uncontroverted allegation leveled against him do not disclose/constitute any offence or the criminal proceeding is manifestly attended with mala fide to put pressure on him to compromise with the other side. Law on this point is crystal clear and the broad principles in which a criminal proceeding can be terminated, has been laid down by the Apex Court in the most celebrated decision in State of Haryana & others Vrs. Bhajan Lal & others; 1992 Supp (1) SCC 335 at Paragraph-102 as follows :- “102. (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 the accused. (2) Where the allegations in the report and other information first materials, if any, accompanying the FIR do not disclose a cognizable offence, // 8 // 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 the accused. for proceeding against (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the Institution and continuance of the proceedings and/or where there is specific provision the Act concerned, providing efficacious redress for the grievance of the aggrieved party. the Code or in // 9 // the proceeding (7) Where a criminal proceeding is manifestly attended with mala fide and/or is maliciously where instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 5. In the aforesaid celebrated decision, the Apex Court has undoubtedly laid down that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motivate for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge, as a ground to invoke the inherent power of the Court to prevent abuse of process of Court or otherwise to secure the ends of justice, but the Petitioner has alleged about the perfunctory investigation in the case lodged by him for quashing the criminal proceeding instituted against him. A careful perusal of the averments made by the Petitioner in his application U/S. 482 Cr.P.C. would go to disclose about allegation against the Informant of the present case for lodging the FIR against him with an ulterior motive to save his son from the case lodged by // 10 // him and perfunctory investigation done by the Police in the case instituted by him and nowhere it is made clear as to how the criminal proceeding against him is instituted with mala fide. Further, it is not the case of the Petitioner that the uncontroverted allegation as appearing in the FIR and statement of the witnesses do not constitute/disclose any offence and no case is made out against him. Besides, the Petitioner has not been able to satisfy the Court as to how the I.O. conducted investigation to submit charge- sheet against him, no matter the Petitioner alleges perfunctory investigation for not collecting his injury report in the case lodged by him. Undoubtedly the Petitioner and the Informant and her son were in litigating terms and criminal cases had been lodged by both sides against each other, but merely because criminal cases have been instituted against each other, ipso facto would not establish wrecking of vengeance against one side by other unless the same is clearly established. // 11 // 6. Admittedly, both the parties have instituted case against each other and there is possibility of false implication on either side for putting pressure on each other, but it would be disastrous and impermissible to appreciate the prosecution papers such as FIR, charge- sheet at this stage to find out false implication of one party by other, especially when no evidence has been let in and such allegation and counter allegation made in the cases lodged by each other are question of facts which are subject to proof through evidence collected in the trial of cases, but the same cannot be appreciated at this stage by merely perusing the documents such as copy of FIR and charge-sheet as produced by the Petitioner in this case. 7. In the ultimate analysis of facts contained in the documents produced by the Petitioner in this case and the broad principles under which the criminal proceeding can be terminated or order of cognizance can be quashed, this Court does not find any justifiable ground to exercise // 12 // inherent power to quash the cognizance order or the criminal proceeding instituted against the Petitioner nor the Petitioner could make out a case for quashing the criminal proceeding and it appears to the Court that there is no infirmity in the order taking cognizance passed by the learned J.M.F.C., Banapur. 8.
Decision
In the result, the CRLMC sans any merit, stands dismissed, but in the circumstance no order as to cost. JUDGE …………….………….. G.SATAPATHY, Orissa High Court, Cuttack The 16th January, 2023, Priyajit