Hrudamani Bewa vs State of Orissa and Others

Pradip Mohanty, J.—This criminal revision is directed against the order dated 18.08.2005 passed by the learned J.M.F.C., Banpur dismissing the complaint (1.C.C. No. 103 of 2005) u/s 203 Cr.P.C, with a finding that there is no sufficient ground to proceed against opposite parties 2 and 3.

Case of the petitioner is that she filed a complaint under Sections 294/323/506/34 IPC and Section 3 of the S.C. & S.T. (P.A.) Act before the J.M.F.C., Banpur, which was registered as 1.C.C.. No. 103 of 2005. After recording of her initial statement, two witnesses were examined by her u/s 202 Cr.P.C. But on 18.08.2005, learned J.M.F.C. dismissed the complaint u/s 203 Cr.P.C. on the ground that essential ingredients of the aforesaid offences are not established; that there are material discrepancies in the statement of the complainant and that of the witnesses; and that although one Ratnakar Sethi was named as an occurrence witness, he was not examined by the complainant.

Mr. Pradhan, learned Counsel for the petitioner submitted that essential ingredients of all the above offences are well established by the witnesses including the complainant against the present opposite parties 2 and 3. At the time of taking cognizance, the duty of the Magistrate is to see whether prima facie case is made out to proceed against the offender or not. At that stage, he is not required to see whether the case would end in conviction. A proceeding cannot be thrown out at the threshold on the ground of discrepancies in the evidence of the witnesses examined during enquiry unless the same make the prosecution allegations inherently improbable or absurd. He further submitted that deposition of the witnesses is crystal clear with regard to use of obscene language, i.e., "BEDHEI DHOBANI" by the accused opposite parties 2 and 3. Therefore, ingredients of the offence u/s 3 S.C. & S.T. (P.A.) Act and Section 294 IPC are well established. He also submitted that there is prima facie case against the accused-opposite parties 2 and 3 u/s 323/506 IPC as well.

In support of his case, he placed reliance on the decisions in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, ; Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, ; State of Karnataka and Another Vs. Pastor P. Raju, ; CREF Finance Ltd. Vs. Shree Shanthi Homes Pvt. Ltd. and Another, ; Jagdish Ram Vs. State of Rajasthan and Another, ; Chandramani Chand and Ors. v. Banchanidhi Swain and Anr. (1988) 1 OCR 438.

Mr. Mishra, learned Counsel for opposite parties 2 and 3 submitted that no illegality has been committed by the J.M.F.C. in dismissing the complaint when there are material discrepancies in the statement of the complainant and that of the witnesses examined by him. He further submitted that the names of these witnesses were not mentioned in the body of the complaint petition. Moreover, the role of the witnesses was also not mentioned in the complaint petition. Therefore, the learned JMFC has rightly dismissed the complaint u/s 203 Cr.P.C.

Learned Addl. Standing Counsel, on verification of the records, admitted the above position.

Perused the records and considered the decisions cited by the parties. At the stage of cognizance, it is the duty of the Magistrate to see whether prima facie case is made out for proceeding against the accused persons. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind. Thereafter, he is to verify whether he would issue process against the accused persons or not u/s 204 Cr.P.C. At the time of cognizance, it is not the duty of the Magistrate to see whether evidence is adequate for convicting the accused. The test is whether there is sufficient material to proceed against the accused, i.e., the satisfaction of the Magistrate that prima facie case is made out against the accused persons. From a bare reading of Section 203 Cr.P.C, it is crystal clear that the Magistrate shall dismiss the complaint after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation, if any, u/s 202 Cr.P.C. on the ground that there is no sufficient material for proceeding. The Magistrate shall give a reason to that effect. At the time of application of mind, he shall have to see if ingredients of the offences have been fulfilled or not. In the instant case, the Magistrate has given much importance on the discrepancies in the statement of the complainant and that of the witnesses examined by him. But Section 203 Cr.P.C. is not a regular stage for adjudicating the truth. In the instant case, the Magistrate has proceeded on the footing as if he was trying the case. On perusal of the statements of the witnesses, it reveals that a prima facie case for some of the offences is established. Therefore, this Court sets aside the order dated 18.08.2005 and remits the matter back to the Court below with a direction to apply its mind afresh and take a decision by appreciating the materials whether there is sufficient ground to proceed against opposite parties 2 and 3, and not whether there is sufficient ground for conviction.

The revision is accordingly allowed.