Gohan Kalindi vs State Of Jharkhand And Others

Sanjay Kumar Dwivedi, J

This petition has been filed for quashing of the entire criminal proceeding including the order dated 2.6.2017 whereby cognizance on protest cum complaint petition has been taken against the petitioner, pending in the court of learned Judicial Magistrate, 1st Class, Jamshedpur.

Initially the complaint case being C-I Case No.4028/2014 was filed and the same was sent to the concerned Police Station for registration of FIR under section 156(3) Cr.PC and to investigate the case and accordingly Mango PS Case No.332 of 2015 corresponding to G.R.No.2350/2015 was registered in which after investigation the police has submitted final form and on 31.8.2015 in favour of the petitioner and thereafter the present protest cum complaint case has been filed, which has been registered as C-I Case No.174/2016. It has been alleged in the complaint that on 5.11.2014 the complainant was sleeping in her house with her son then in the meantime the petitioner along with four other accused persons entered into the house of the complainant by breaking the door and thereafter confined her and her son and made preparation for causing hurt and with an intent to outrage her modesty touched her private parts. When objection raised by the complainant then all the accused persons including the petitioner tied her with the help of rope. Thereafter with an intention to destroy her house, they set her house on fire. The complainant and her son got injuries on their body from the assault made by the accused persons. Thereafter the complainant reported the matter to the concerned police station and having seen the serious injuries on the body of the complainant she was sent to MGM hospital for treatment where she was admitted on 6.11.2014 where she got herself treated by Dr.T.Barla. It is further alleged that the police came to the place of occurrence took the statement of the witnesses but till now the case has not been initiated against the accused persons and when this fact came to the knowledge of the complainant, she filed the present complaint case.

The said complaint petition under section 156(3) Cr.P.C was sent before the police to institute an F.I.R and conduct the investigation. The police after investigation submitted final form saying that the case is of civil in nature and no case against the petitioner is made out. The O.P.No.2 filed the protest cum complaint petition and on that the cognizance has been taken against the petitioner.

Mr. Anurag Kashyap, the learned counsel appearing for the petitioner submits that in the cognizance order, there is no reason assigned as to why the learned court has differed with the final form and only looking into the solemn affirmation and the enquiry witnesses, EW-1 and EW-2 cognizance has been taken against the petitioner which is not in accordance with law.

Mr. Karmakar, the learned counsel appearing on behalf of the O.P.No.2 submits that there are serious allegation against the petitioner and the cognizance has been rightly taken on the protest petition which is subject matter of protest cum complaint petition.

In view of the above facts, the Court has gone through the materials on record. It is an admitted fact that complaint petition filed has been referred under section 156(3) Cr.P.C and pursuant thereof the police has submitted final form saying that the case is of civil in nature and the petitioner was not sent up for trial. The learned court has invited the complainant to file the protest cum complaint petition and on that, the learned court has taken cognizance. It is well within jurisdiction of the learned court to differ with the final form and take cognizance but for that the reasons should be disclosed in the cognizance order. In the case in hand, the learned court has only depicted the allegations and saying that on the basis of solemn affirmation and the enquiry witnesses EW-1 and EW-2 prima facie case is made out against the petitioner. The reasons for differing with the final form has not been disclosed in the cognizance order.

Accordingly, the cognizance order dated 2.6.2017 passed by learned Judicial Magistrate, 1st Class, Jamshedpur in connection with C-1 Case No.174/2016, pending in the court of learned J.M. First Class, Jamshedpur is set aside.

The matter is remitted back to the concerned court for passing a fresh order in accordance with law.

Cr.M.P. No.2023 of 2017 stands disposed of.

I.A., if any, stands disposed of.