Bada Khan and Others vs State of Orissa and Another

L. Mohapatra, J.—This application u/s 482, Code of Criminal Procedure has been filed challenging the order dated 8.10.2002 passed by the learned S.D.J.M., Nuapada in I.C.C. No. 33 of 2001 taking cognizance of the offence u/s 395 of the Penal Code.

The case of the complainant-opposite party No. 2 is that on 31.8.2001 early in the morning his brother-in-law namely, Ajaya Sahu, woke him up and told that since he was leaving for Raipur, the complainant should look after his vehicle bearing registration No. OR-17 A-9402 till his return and accordingly the complainant kept the vehicle with him. On the same day at about 3.30 PM the accused persons and some others forming an ''unlawful assembly and armed with deadly weapons came complainant and two of the accused persons demanded to hand over the vehicle to them. When the complainant expressed that he did not have the key of the vehicle, he was abused in foul language and accused Prasanna directed three other accused persons to break open the door of the vehicle. Thereafter, accused Bada Khan broke the lock of the vehicle by means of a scurvy driver and when the complainant protested, it is alleged that accused Prasanna brought out a pistol and threatened of kill hinny. Thereafter, accused Kabuli Mishra drove the vehicle accompanied by other accused persons and as such committed dacoity. It is also alleged in the complaint that a written report was given in the police station, but the same was refused to be received against the accused persons whereafter the complaint was filed. Subsequently, it was learnt that the vehicle had been seized by the police while carrying some bags of rice. On the basis of such allegations made in the complaint and on consideration of the materials collected during inquiry u/s 202, Code of Criminal Procedure the learned Magistrate being satisfied about the existence of prima facie case u/s 395 of the Penal Code, took cognizance of the said offence..

Shri Dhal, the Learned Counsel appearing for the Petitioners challenged the said order solely on the ground that the story put forth by the complainant is highly improbable and, therefore, this Court should interfere with the order taking cognizance in terms of the decision of the Apex Court in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. reported in AI. Rule 1992 S.C. 604. According to Shri Dhal, the brother-in-law of the complainant who is said to have kept the vehicle on the date of occurrence was involved in commission of certain offences while carrying rice in the vehicle and the vehicle had been seized. In order, to get over the said case, the present complaint has been filed with false allegations and, therefore, the allegations made in the complaint are highly improbable warranting interference of this Court. The Learned Counsel Shri Dhal appearing for the complainant, on the other hand, submitted that while taking cognizance the learned Magistrate is only required to see the allegations made in the complaint and the materials available before it after inquiry u/s 202, Code of Criminal Procedure as well as initial statement of the complainant. If on the basis of such materials the learned Magistrate is satisfied that prima facie case is made out for commission of such offence, he is to take cognizance of the same and the learned Magistrate is not required to look into any other material which is extraneous of the complaint. Reliance is placed on some decisions of this Court by the Learned Counsel for the opposite party No. 2.

There is No. dispute about the observations made by the Apex Court in the case of State of Haryana v. Bhajan Lal (supra) that where the Court is satisfied that the allegations made in the complaint are highly improbable, it would interfere with the order taking cognizance in order to avoid the abuse of process of the Court. So far as the present case is concerned, the allegation made in the complaint is that on the date of occurrence i e. on 31.8.2001 at about P.M. when the vehicle was in possession of the complainant, the accused persons came in a body armed with deadly weapons, demanded the vehicle and on refusal by the complainant they abused him in foul language, broke open the lock of the vehicle and took away the same. It appears from the other documents placed before the Court that the vehicle was seized on 1.9.2001 for commission of the offence u/s 7 of the E.C. Act by the brotherin-law of the complainant. Since it is alleged that the vehicle was taken from the possession of the complainant on 30th August, 2001 and the vehicle was seized on 1st September, 2001 by the police in connection with the case registered for commission of the offence u/s 7 of the E.C. Act, it cannot be said that the complaint case is highly improbable. Accordingly, I am of the view that the observations made by the Apex Court in the case of State of Haryana v. Bhajan Lal (supra) has No. application to the facts of the present case.

Coming to the next question as to whether the learned Magistrate is competent to look into any other material except the complaint, initial statement and the evidence adduced during inquiry u/s 202, Code of Criminal Procedure, reference may be made to some decisions of this Court in the case of Ghanashyam Tripathy and Anr. v. Suryanarayan Tripathy and Anr. reported in Volume 60 (1985) C.L.T. 17, Vellagada Nageswar Rao alias V. Nageswar Rao Vs. State of Orissa and Others, , Sanatan Swain and seven others v. State of Orissa and Anr. reported in (2002) 22 O.C.R. 218, Jagannath Das and Ors. v. State and another reported 1992 (5) O.C.R 206, Samir Chandra Guha and Ors. v. K. Pradhan and Anr. reported in 1984 O.L.R. (Criminal) 98, Chandra Deo Singh Vs. Prokash Chandra Bose and Another, Braja Khanna and Ors. v. Moti Ram reported in A.I. Rule 1971 S.C..1389, D.N. Bhattacharjee and Others Vs. State of West Bengal and Another, and Hareram Satpathy Vs. Tikaram Agarwala and Others, .

On perusal of the aforesaid decisions, there cannot be any doubt in my mind that the learned Magistrate is not competent to look into any other material which is entraneous to the complaint and the learned Magistrate is to confine himself only to the complaint, initial statement of the complainant and the materials collected during inquiry u/s 202, Code of Criminal Procedure In the present case, the learned Magistrate having done so and found that the prima facie case u/s 395 of the Penal Code has been made out, I have No. reason to interfere with the impugned order. Moreover, the question as to whether -the offence u/s 395 of the Penal Code has been made out or not can also be raised at the time of framing of charge and, therefore, it is not the stage where this Court should interfere with the impugned order in exercise of the powers u/s 482, Code of Criminal Procedure.

Accordingly, the Criminal Misc. Case is dismissed.