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Harekrushna Mohanty Vs. Adikando Behera - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 62 of 1965
Judge
Reported inAIR1966Ori64; 1966CriLJ428
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 202 and 203
AppellantHarekrushna Mohanty
RespondentAdikando Behera
Appellant AdvocateS.K. Ray, Adv.
Respondent AdvocateGovt. Adv.
DispositionRevision allowed
Cases ReferredChandra Deo Singh v. Prokash Chandra
Excerpt:
.....430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - one judhistir jena, a rich contractor, attempted to oust the complainant from the said building. having failed to do so, he influenced the accused, the police staff, to unlawfully force him out from the house. in view of the facts and circumstances stated above it will be better if the matter be t hrashed out in the proper court of law and justice meted out. ) to be present during the iime of enquiry if he so liked and watch the proceeding. (v) the magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is..........section 145, cr. pc.i am unable to appreciate what the learned sdm means. even according to the police, the complainant was in possession of the house and that he and his family members voluntarily left the house. by this complaint, there is no room lor strengthening the case under section 145 cr. pc. the s. d. m's observation that 'the complainant thereby would be indirectly creating evidence of possession in his favour' is wholly wrong --(ii) the alleged cases are directly and inextricably connected with the question of such dispossession or otherwise. it is therefore only proper to leave the question of dispossession as that is already an issue in 145 proceeding.this observation is meaningless for reasons already stated.(iii)..... no complaint against police officer lie without.....
Judgment:
ORDER

G.K. Misra, J.

1. On 12-8-1964 Harekrushna Mpllanty filed a complaint in the Court of the Sub-Divisional Magistrate Puri, against (1) Adikando Behera, Officer-in-charge, Town P.S., Puri (2) PrafuIIa Babu, Sub-Inspector, (3) Dijen Babu, Sub-Inspector (4) Goura Charan Mohapatra, Havildar and (5) Biswanath Patnaik, Havildar, under Sections 342, 352,354,426,427,447, 500 and 504 I.P.C. The main allegations were that on 10-8-64 at about 3 p. m. accused 2 and 4 served a notice under Section 145, Cr. PC on the complainant. At about 7 P.M. accused 2, 4 and 5 came to the residential house of the complainant and asked him to attend Thana saying that accused 1 had sent for him. At the P. S. the complainant was detained till 9 p.m. He was kept under Police guard and was asked to furnish bail. While he was at the P.S. for 2 to 3 hours, accused 1 with other accused came to his house, unlawfully trespassed therein and forcibly drove out his wife, daughter, sister and other inmates from the house after abusing them in filthy language. When the complainant's sister Radhamani lodged protest, she was given a push as a result her forehead struck against the wall and she sustained an injury. All the inmates were drenched in the rain and were sitting on the outer verandah of the house. Many of his valuables were kept locked up in the house. It was stated that the complainant was residing as a tenant in the particular house designated as Mandal buildings. One Judhistir Jena, a rich contractor, attempted to oust the complainant from the said building. Having failed to do so, he influenced the accused, the police staff, to unlawfully force him out from the house. The high-handed action on the part of the Police affected the prestige, reputation and status of the complainant. The complainant was examined on oath. As the complaint was against the police, the learned Sub-Divisional Magistrate directed an enquiry Under Section 202, Cr. PC. The matter was inquired into by a Magistrate of the first class, who submitted his report on 8-10-1964. His ultimate conclusion was to the effect:

In view of the facts and circumstances stated above it will be better if the matter be t hrashed out in the proper court of law and justice meted out. After receipt of the report of the Enquiring Magistrate, Sri B. Mohapatra, S.D.M. Puri dismissed the complaint Under Section 203, Cr. P. C. Cr. Rev. No. 52 of 1964 in the- court of the Sesssions' Judge, Furi fbV further enquiry Under Section 436 Cr.P.C. was dismissed on 16-12-64. The revision before the Sessions Judge was filed only against accused 1. The Cr. Revision in this Court is also directed only against accused 1. The order of the Sub-divisional Magistrate dismissing the complaint against the other four accused thus stands final and cannot be reagitated.

2. The course of events before the Enquiring Magistrate may he traced. On 25- 8-64 he received the records for inquiry Under Section 202, Cr. P.C. On the very day he passed an order to the effect:

This being a complaint against the sub-inspector of police, inform the prosecuting Inspector (P. I.) to be present during the iime of enquiry if he so liked and watch the proceeding.

The same inquiry was adjourned to 7-9-64 when the complainant took time. The enquiring Magistrate directed that P. I. should be informed of the order of that date. On 23-9-64 out of seven P. Ws. six were examined. The Magistrate passed the following order--

The P. I. on behalf of other parties present. To 3-10-64 on which date both parties to file their documents.

On the date so fixed, the complainant filed certain documents. The P. I. prayed for time to argue the case as he was otherwise occupied. Time was granted till 6-10-64 for hearing when the complainant was heard and the case was adjourned to 7-10-64 for further hearing. On that date P. I. filed Station diary, Town P.S. and the Personal Diary of the Town Inspector. After hearing he posted it for order to 8-10-64 when the report was submitted.

The course of events during inquiry has been narrated at length to bring into bold relief the outstanding fact that the Prosecuting Inspector was allowed to file documents, to make suggestions to witnesses and to advance arguments on behalf of the accused almost in the way as it is done during trial. A reference to the depositions recorded by the enquiring Magistrate would show that suggestions were made to the witnesses at length. Obviously the suggestions were mere camouflage for cross-examination and they were done at the instance of P. I .

3. Mr. Ray contends that the order of the Sub Divisional Magistrate dismissing the complaint Under Section 203 Cr. P.C. is contrary to law inasmuch as he did not confine himself to the statements on oath of the complainant and the 6 witnesses and the result of the enquiry but indulged in irrelevant consideration that the complainant may get redress of his grievances through the Court in seisin of the proceeding Under Section 145, Cr. P.C. and that he was in error in examining the materials on record as if these would justify a conviction and not with a view to see that there was sufficient ground for proceeding with the trial.

4. To appreciate the contention, the scope of Sections 202 and 203, Cr. PC may be examined. An enquiry Under Section 202 is to be directed only for the purpose of ascertaining the truth or falsehood of the complaint. Section 203 lays down that the complaint may be dismissed after consideration of the statements on oath of the complainant and the witnesses and the result of the investigation or enquiry, if any, under Section 202, if the Magistrate in his judgment thinks that there is no sufficient ground for proceeding. The scope of the Section is no longer in controversy. The principles laid down in Chandra Deo Singh v. Prokash Chandra, AIR 1963 SC 1430 may be summarised for convenience:

(i) Since the very question for consideration is whether the accused should be called upon to face an accusation, he has no right to take part in the proceeding, nor has the Magistrate any jurisdiction to permit him to do so. As a necessary corollary it follows that the Magistrate cannot put any question to the witnesses at the instance of the accused.

(ii) The Magistrate is, however, free to put such questions to the witnesses of the complainant as he may think proper in the interest of justice.

(iii) It is the bounden duty of the Magistrate to elicit all facts not merely with a view to protect the interest of an absent accused but also with a view to bring to hook a person or persons against whom grave allegations are made.

(iv) Whether the complaint is frivolous or not is, at that stage, necessarily to be determined on the basis, of materials placed before him by the complainant. Whatever defence the accused may have can only be inquired into at the trial. If, however, from the evidence given by the complainant a reasonable defence is established, or the accused is entitled to a benefit of doubt, the complaint can be dismissed.

(v) The Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate to support a conviction can be determined only at the trial and not at the stage of enquiry.

(vi) The object of enquiry Under Section 202 is to ascertain whether the allegations made in the complaint are intrinsically true. In order to satisfy himself that there is sufficient ground for proceeding Under Section 203, the Magistrate is entitled to consider the evidence recorded at the inquiry Under Section 202, the statements of the complainant and his witnesses on oath and the result of the investigation or inquiry, if any. He is not entitled to rely upon any materials besides this.

Following the aforesaid principles in that particular case, their Lordships held that where the Magistrate had ordered an enquiry Under Section 202 by another Magistrate, it was not open to him to consider the statement recorded during the investigation by the police, or the evidence adduced before him during the inquiry arising out of another complaint on such extraneous matter, the proceeding was held to be vitiated. Similarly, their Lordships held the inquiry by the Magistrate as vitiated as two persons, who were associates of the accused, were examined as Court witnesses on the suggestion of the accused, who was permitted to appear through counsel at the enquiry.

5. On the aforesaid tests, Mr. Ray's contention that the order of the Sub-divisional Magistrate, dated 18-11-64, dismissing the complaint must be set aside is unassailable. The learned Sub-Divisional Magistrate indulged in irrelevant consideration. That the learned S. D. M. did not keep the law in view is apparent from some of his observations which may be extracted:

In the instant case the house has been attached in due process of law Under Section 145, Cr PC. This proceeding is still sub judice. It is to be decided in that proceeding as to which party was in possession. It is usual in such circumstances for one party to allege excesses being committed by the police and to allege disposes-sion with a view to strengthen the case under Section 145, Cr. PC.

I am unable to appreciate what the learned SDM means. Even according to the police, the complainant was in possession of the house and that he and his family members voluntarily left the house. By this complaint, there is no room lor strengthening the case Under Section 145 Cr. PC. The S. D. M's observation that 'the complainant thereby would be indirectly creating evidence of possession in his favour' is wholly wrong --

(ii) The alleged cases are directly and inextricably connected with the question of such dispossession or otherwise. It is therefore only proper to leave the question of dispossession as that is already an issue in 145 proceeding.

This observation is meaningless for reasons already stated.

(iii)..... No complaint against police officer lie without proper sanction.

The learned S. D. M. does not make any discussion as to why sanction was necessary. Mr. Rath did not argue before me that sanction was necessary for filing this complaint. The learned Magistrate's observation that 'without such sanction no cognizance can be taken on such a nature of the complaint' is wholly inappropriate.

6. It is unnecessary to make further extract from the judgment of the learned Magistrate. It would be sufficient to say that his order has not kept in view the scope of Section 203, Cr. PC. It is accordingly quashed.

7. I cannot part with the case without indicating that the Enquiring Magistrate also committed an illegality in allowing the accused to take part in the proceeding contrary to the Supreme Court decision. Evidence in the enquiry and the report based thereon are vitiated in law. The learned S.D.M. must accordingly direct a fresh inquiry Under Section 202, Cr.PC, The Enquiring Magistrate would proceed with the enquiry keeping in view the proposition of law already summarised. The inquiry would proceed only against Adukanda Behera.

8. In the result, the Criminal Revisionis allowed and the order of the learned S.D.M.Puri D/-18-11-64 is set aside. He would direct afresh enquiry Under Section 202, Cr. PC. The statementsof the witnesses for the complainant in examination-in-chief would stand. The rest of theinquiry should proceed in accordance with lawand the observations made above.


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