Ashok Kumar Mishra vs State of Orissa and Another

B.K. Nayak, J.—The petitioner in this application u/s 482, Cr. P. C. challenges the order dated 12-4-2010 passed by the learned J. M. F. C., Jaipur Road in I. C. C. Case No. 59 of 2010 taking cognizance of the offences under Sections 323 /294 /506 of the I.P.C. and directing issuance of process against the petitioner. Opposite party No. 2, who was the Secretary of the Jaipur Road Bar Association, filed a complaint before the learned J. M. F. C., Jaipur Road against the present petitioner with the allegations that on 24-10-2007 he had addressed a letter to accused-petitioner, who was the Managing Director of IFCAL. Jaipur Road and gave the same to the P. A. of the petitioner. In order to discuss with the petitioner about the subject matter of the aforesaid letter, the complainant along with the witnesses went to the office of the petitioner on 31-10-2007 at about 12.30 p.m. after getting appointment and when they started discussing about the subject matter of the letter given earlier, the petitioner suddenly got angry and asked the complainant to vacate his office or else he would be forced to get them out. When the complainant protested against such action, the petitioner again asked him to leave the place immediately or else he would kill the complainant by firing, and so saying the petitioner stood up from his chair and gave a push on the chest of the complainant and asked his Darwan (door keeper) to drive the complainant and his companions out of the gate and again abused them saying "SALA OKILA DAKHEIHEUCHU MORA HIGH COURT JUDGE SABU SANGA JAA MORA KANA TADIBA KANA KARIPAKEBA".

The complaint petition was forwarded by the learned J. M. F. C. to the local police station for registration of F. I. R. and accordingly Jaipur Road P.S. Case No. 150 dated 3-11-2007 was registered. After investigation the police submitted a final report, whereupon the complainant filed a protest petition on the basis of which his statement u/s 200, Cr. P. C. was recorded. The J. M. F. C., conducted enquiry and by the impugned order took cognizance of the offences under Sections 323 /294 /506 of the I.P.C.

During the course of hearing the learned counsel for the petitioner challenges the order of cognizance only in respect of offence u/s 294 of the I.P.C. on the ground that even assuming the allegations of abuse etc. to be true, the place of occurrence is the office room of the petitioner, which is not a ''public place'', prima facie commission of offence u/s 294 of the I.P.C. cannot be said to have been made out and hence no cognizance thereof could have been taken. The leaded counsel appearing for opposite party No. 2 submits that for opening of a new Court of Senior Civil Judge at Jaipur Road, on the request of Jaipur Road Bar Association and the Collector, Jaipur, the predecessor-in-office of the petitioner had agreed to spare a quarters of his Company for occupation of the Presiding Officer of the proposed Court and in connection therewith a letter had been given to the petitioner through his P. A. and in order to discuss about the aforesaid matter the complaint and some members of the Bar went to the office of the petitioner, when the occurrence took place. It is submitted by him that the office of the petitioner must be held to be a public place and, therefore, cognizance of the offence u/s 294 of the I.P.C. has been rightly taken.

The sole question, therefore, is whether the office room of the Managing Director of the Company, Indian Ferro-Chrome and Alloys Limited (IFCAL), which is a Public Limited Company, is a ''public place'' or not.

A public place is any place which is open to the use and enjoyment of the public, whether it is actually used or enjoyed by the public or not.

In the decision reported in State Vs. Dohana Jamnadas and Others, a division bench of Gujarat High Court has laid down the following test for ascertaining whether a place is a public place or not:

The test of a place being a public place within the meaning of S. 12 is whether it is open to the members of the public or not, even though there may be certain conditions attached to the entry or the use thereof.

A public place must be held to be a place which is open to the members of the public though in some cases access to it by members of the public may be on fulfilling certain conditions. But the right of access to such place must not be limited to any determinate section of public and the person in charge of the place should have no right or discretion to deny access to any member of the public as long as such member is ready to fulfill the conditions attached for access.

In the light of the above test it is to be seen whether the office room of the Managing Director of the company is a ''public place''. There may be a condition that a member of the public can enter into the office room of the Managing Director with his prior permission for some purpose, but it cannot be said to be open to the public in the sense that every member of the public has a right of access to it. The Managing Director must be deemed to have a right or discretion to refuse permission to any member of the public to have access to his office room. The Managing Director having a choice not to allow entry or access to his office room to any member of the public whom he does not wish to permit, it cannot be said that his office room is a place, which is open to every member of the public. I, therefore, hold that the office room of the petitioner cannot be said to be a public place. A necessary ingredient of the offence u/s 294 of the I. P. C., is that it must occur in a ''public place'', which is lacking in the instant case. Therefore, the cognizance of the offence u/s 294 of the I. P. C. in the impugned order is bad. I, therefore, quash the order of cognizance only in respect of the offence u/s 294 of the I. P. C.

The CRLMC is thus partly allowed.