The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO.462 of 2017 (In the matter of application under Section 482 of the Criminal Procedure Code, 1973.). Tareque Ahemed …. Petitioner -versus- State of Orissa Opposite Party … . For Petitioner : Mr. D.Panda, Sr. Advocate For Opposite : Mr. S.R.Roul, ASC Mr. B.R.Mohnaty, Advocate[Informant] CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :06.01.2023 DATE OF JUDGMENT: 03.02.2023 G. Satapathy, J. 1. This is an application U/S 482 of Cr.P.C. by the petitioner seeking to quash the order passed by CRLMC No.462 of 2017 Page 1 of 16 learned S.D.J.M., Titlagarh on 08.12.2015 in G.R. Case No.217 of 2014 taking cognizance of offences and consequently, the proceeding arising thereof. 2. Facts leading to filing of the CRLMC are one
Legal Reasoning
Satyanarayan Pradhan lodged an FIR against the petitioner and others before the Superintendent of police, Bolangir on 28.06.2014 alleging therein about police personnel of Bolangir Police Station taking away his brother “Basanta Pradhan” (hereinafter referred to as “deceased”) on 10.06.2014 at about 9 P.M. from their house to Titlagarh Police Station and assaulting him physically there at in most inhuman manner continuously for four hours and later on, taking away his brother to Bolangir Police Station and continuously beating him even inside the police vehicle during the journey from Titilagarh to Bolangir and, therefore, they detained the deceased at Bolangir Police Station till 15.06.2014 during which period, the deceased was subjected to inhuman physical torture CRLMC No.462 of 2017 Page 2 of 16 and merciless beating. It is also alleged by the informant in the FIR that his brother was detained by the police for long four days without registration of criminal case against him nor was he forwarded to the Court as per the law and during that period, he saw the deceased vomiting blood due to internal injury and the deceased was taken to hospital by Bolangir police and the entire unfortunate incident was going on in the presence of the IIC-cum-petitioner herein and when the police felt that the deceased was likely to die due to the brutal torture, they released him with a threatening not to disclose about the incident and on 15.06.2014 the deceased was under medical treatment for the injuries sustained by him on his entire body and unfortunately, the deceased died on 28.06.2015. On receipt of the above report, Titlagarh P.S. FIR No.144 of 2014 was registered and the allegations of the informant was investigated into, which resulted CRLMC No.462 of 2017 Page 3 of 16 in submission of charge-sheet against the petitioner and others for different offences. On being finding prima facie case, learned S.D.J.M., Titlagarh by the impugned order took cognizance of offences U/Ss.120- B/341/342/343/323/330/348/506/302/201/34 of IPC. Feeling aggrieved with the order taking cognizance, the petitioner has approached this Court in this CRLMC. 3.
Legal Reasoning
In the course of hearing of the CRLMC, Mr. D. Panda, learned Senior Counsel by taking this Court through the impugned order, FIR & Post Mortem Report of the deceased, submits that no case U/S.302 of IPC is made out against the petitioner nor is there any concept of submission of preliminary charge-sheet against the petitioner as per law and the cause of death of the deceased was on account of Cardiac Circulatory Failure due to Septicemic Shock and, therefore, no prosecution is maintainable against the petitioner for any offence. It is further submitted that CRLMC No.462 of 2017 Page 4 of 16 the allegations levelled in the FIR do not corroborate the Post Mortem Report findings since the injuries detected in the Post Mortem Report does not have any nexus to the allegations levelled by the informant and the witnesses and, therefore, the prosecution against the petitioner is nothing but an abuse of process of Court and allowing further continuance of criminal proceeding in this case would amount to further abuse of the process of the Court. Learned Senior Counsel under aforesaid submissions prays to quash the cognizance order and consequently, the criminal proceeding arising thereof. 4. Mr. S.R. Roul, learned ASC by placing the statement of one Jayant Kumar Padhi submits that the deceased suffered death due to the custodial torture exerted by the petitioner and other police personnel of Bolangir Police Station and, thereby, prima facie case is made out against the petitioner and other Police personnel for culpable homicide and, therefore, the CRLMC No.462 of 2017 Page 5 of 16 present criminal proceeding together impugned order cannot be considered to be an abuse of process of the Court by any stretch of imagination. It is accordingly prayed by the learned ASC to dismiss the CRLMC being unmerited. 5. Mr. B.R. Mohanty, learned counsel for the informant by placing the statement of wife and brothers of the deceased, submits that the deceased had made an oral dying declaration before his wife, in which he had vividly and categorically described the role played by the petitioner for custodial torture and assault made on him resulting in his death. He further submits that the Post Mortem Report corroborates the act alleged against the petitioner and several injuries were noticed on the person of the deceased, which resulted in his death and, thereby, there is reasonable nexus between the allegations leveled against the petitioner and the corresponding injuries found on the body of the deceased causing his death and, therefore, CRLMC No.462 of 2017 Page 6 of 16 the present proceeding cannot be termed as an abuse of process of the Court and the CRLMC being unmerited is liable to be dismissed. On the above submissions, learned counsel for the informant prays to dismiss the CRLMC. 6. Rival submissions made by the parties have led this Court to reiterate the grounds in which a criminal proceeding can be terminated which has been succinctly elucidated by the Apex Court in State of Haryana and Others Vrs. Ch. Bhajan Lal and Others; (1992) Supp (1) SCC 335 at Paragraph-102 of the judgment which is extracted below:- “(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 primfacie constitute any offence or make out a case against the accused. (2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, 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. CRLMC No.462 of 2017 Page 7 of 16 the (3) Where 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 concerned Act(under which a criminal proceeding is instituted) to the institution and continuation of the proceedings and/are where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide is and/are where the proceeding maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” While scrutinizing the case of the petitioner on the anvil of above grounds, it appears at the outset CRLMC No.462 of 2017 Page 8 of 16 that on receipt of preliminary charge sheet, the learned S.D.J.M., Titlagarh has taken cognizance of offences by the impugned order and accordingly issued summons to the petitioner and others after recording his satisfaction about existence of sufficient materials to proceed against the petitioner and others. The concept of taking cognizance of offences on receipt of preliminary charge sheet, instead of a charge sheet as contemplated U/S. 173(2) of Cr.P.C. is, however, seriously criticized by the learned Senior Counsel which in fact persuades this Court for a moment to examine the legality of such preliminary charge sheet, but law is very clear on this point in view of the decision of Apex Court in State of Maharashtra Vrs. Sharadchandra Vinayak Dongra and others; (1995) 1 SCC 42 wherein at Paragraph-7, the Apex Court has been pleased to observe as under:- “if the material filed therewith is sufficient to the police report and CRLMC No.462 of 2017 Page 9 of 16 by the the report submitted label which jurisdiction of satisfy the Magistrate that he should take cognizance, his power is not fettered by the investigating agency chooses to give to the it under Section 173(2) CrPC. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file "supplementary charge-sheet", it could not affect the Magistrate to take cognizance, if he was otherwise satisfied from the material placed before him along with the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge-sheet) was sufficient to take cognizance or not. The power of take cognizance to the Magistrate cannot the by investigating agency, whose duty is only to investigate and place the facts and the Magistrate.” controlled evidence before the be Hence, it is very clear that if there is sufficient material, the Court can take cognizance of offences even if the police submitted a report U/S. 173(2) of Cr.P.C. leveling it to be a preliminary charge sheet seeking permission of the Court to keep the CRLMC No.462 of 2017 Page 10 of 16 investigation open. This Court is of prima facie view that mere description of report as preliminary charge sheet or irrespective of nomenclature under which a charge sheet has been filed, it would not take away such report out of the purview of report as contemplated U/S. 173(2) of Cr.P.C. subject to condition on consideration of learned Magistrate about existence of sufficiency of materials to take cognizance of offence on conclusion of investigation and once Magistrate takes cognizance of offences would give rise to a reasonable presumption of completion of investigation which in fact would not be a bar for further investigation U/S. 173(8) of Cr.P.C. 7. Learned Senior Counsel for the petitioner has also challenged the criminal proceeding against the petitioner on the ground that there is no nexus between FIR allegations and post mortem report findings which were stoutly denied by the learned ASC and learned counsel for the informant. A bare CRLMC No.462 of 2017 Page 11 of 16 perusal of the averments made in the FIR would go to disclose that the deceased was captive under Bolangir police from 10.06.2014 to 15.06.2014 and the informant had seen his deceased brother vomiting blood during such period and the deceased was taken to hospital twice by Bolangir Police and the post mortem report of the deceased reveals that autopsy was done on the body of the deceased on 28.06.2014 in between 7 P.M. to 8 P.M. and around six numbers of ante mortem injuries were noticed and the cause of death was opined by the doctor to be on account of Cardiac Circulatory Failure due to Septicemic Shock. In the present scenario of allegations and corresponding findings of the post mortem report, it cannot be said at this stage, when there is no evidence let in by the prosecution in the Court that there is no nexus between injuries and cause of death of the deceased. Besides, the informant in the FIR has vividly described the allegations against the CRLMC No.462 of 2017 Page 12 of 16 petitioner and others for custodial violence on the deceased, but at this stage, certainly the criminal proceeding cannot be quashed merely on the ground that the allegations in the FIR do not corroborate the post mortem report findings which reveal number of injuries on the person of the deceased. On the other hand, a plain reading of the allegations appearing in the FIR would go to disclose custodial violence and brutal torture on the deceased by the petitioner and others and thereby, the uniform of the police was again maligned and the same is also scar in the mind of the dependants of the deceased. It is albeit advanced on behalf of the informant that the deceased had made a oral dying declaration before his wife describing vividly about the custodial violence and torture meted to him by the Bolangir police, but such facts being matters of trial and the case being subjudice, this Court, however, refrains itself from commenting on such submission of the informant CRLMC No.462 of 2017 Page 13 of 16 which is to be appreciated by the learned trial Court while disposing the case after analyzing the evidence. 8. Learned Senior Counsel has also contended that the injuries as noticed on the person of the deceased were neither individually nor collectively considered sufficient to cause death in ordinary course, but the same is in the realm of learned trial Court to decide once the evidence of doctor is let in before it and it would be improper to conclude that the injuries are not sufficient in ordinary course to cause death on the facts available on record without appreciating the evidence tendered by the doctor in the Court, but the trial is yet to begin in this case and, thereby, no evidence has been tendered by the witnesses including the doctor till today. In addition, the petitioner has also assailed the order taking cognizance of offences, but it was never his case that the uncontroverted allegations appearing in the FIR and charge sheet containing the statement of CRLMC No.462 of 2017 Page 14 of 16 witnesses and other materials on record do not disclose the necessary ingredients of offences under which cognizance was taken nor a case is made out against him. On the contrary, the impugned order passed by the learned S.D.J.M., Titlagarh does not suffer from any infirmity as the same has been passed on proper consideration of the materials placed on record as revealed from the impugned order. On the other hand, the uncontroverted allegations on record, however, demonstrates a typical story of custodial violence, torture and brutality meted to the deceased when he was alive, in captive by the police and these infamous tools with which police are sometimes associated in the guise of investigation to crack a case would definitely bring disrepute and infamies to modern day policing, unless the police completely switchover to modern and scientific techniques for the purpose of conducting investigation, nonetheless the uncontroverted CRLMC No.462 of 2017 Page 15 of 16 allegations on record in this case cannot be said to have not disclosed commission of any offence and made out a case against the petitioner. 9. In view of the above analysis of facts and materials placed on record in the light of rival submissions and the guidelines as set out by Apex Court in Bhajanlal (supra), this Court does not find any error or infirmity in the impugned order nor the criminal proceeding against the petitioner can be termed as an abuse of process of Court necessitating any interference by this Court. 10. Resultantly, the CRLMC stands dismissed being devoid of merit on contest, but in the circumstance without any order as to costs. Judge (G. Satapathy) Orissa High Court, Cuttack, Dated the 3rd of February, 2023/Kishore CRLMC No.462 of 2017 Page 16 of 16