Kanakalata Nath vs Pramod Kumar Samantray

P.K. Tripathy, J.—In this application u/s 482, Code of Criminal Procedure Petitioner challenges correctness of the order dated 10.8.1999 in I.C. Case No. 81 of 1999 of the Court of S.D.J.M. Bhubaneswar. Vide that order learned S.D.J.M. refused to take cognizance against the opposite party and dismissed the complaint on the ground of absence of a prima facie case.

Allegation in the complaint and the statement of witnesses examined on behalf of the complainant in the inquiry u/s 202 Code of Criminal Procedure, is to the effect that complainant had lodged a report (ELR.) before the O.I.C at Balipatna P.S. and when the present opposite party did not take any steps against the accused persons in that case, the Petitioner went and reported the matter before the Superintendent of Police and as a reaction to that, as alleged, the opposite party, being the Officer in charge of Balipatna police station, called the Petitioner to the Police station and not only molested her but also assaulted her on the ground as to why she reported against him before the Superintendent of Police. During the course of inquiry two witnesses were examined by the complainant in addition to her own statement. She did not examine the concerned person who according to her had come and asked her to appear before the opposite party. For that reason, learned S.D.J.M. drew adverse inference against genuineness in the complaint case and that was one of the reasons to dismiss the complaint.

Learned Counsel for the Petitioner argues that complainant is in a position to examine that person who is serving as a Grama Rakhi. He further states that while considering the question of existence of prima facie case, learned S.D.J.M. should not have considered it to be an improbable case without conducting the inquiry to ascertain the truth. Learned Counsel for the opposite party states that the Complainant has come with a false case.

Though the contention of the opposite party is a matter for ascertainment at the time of enquiry or trial, as the case may be, but the contention of the Petitioner has some force inasmuch as in the absence of relevant documents viz., the F.I.R., the date on which it was filed and the identity of the Home Guard and the Superintendent of Police, learned S.D.J.M. should not have proceeded with the presumption that the allegation is false. Though attempt to bring false criminal charge cannot be ruled out keeping in view the nature of duty performed by the opposite party but that cannot be the ground to give him a clean chit without conducting the enquiry properly.

The enquiry contemplated u/s 202 Code of Criminal Procedure, is with the dominant purpose of ascertainment of truth. When the Petitioner has made an allegation of completely misuse and abuse of the official position and committing the alleged crime by the O.I.C. in an unprovoked manner, learned S.D.J.M. should have conducted the enquiry in proper manner rather than in a pedantic way. Complainant should have been asked to bring on record the relevant evidence so as to consider existence of a prima facie case. In that process, if the complainant would have refused or failed to produce proper evidence, them only it should have been proper for learned S.D.J.M. to draw adverse inference against the case brought by the complainant. But in such cases where false or fabricated allegations against public officers shall be prima facie made out then such complainant shall not be let off with a dismissal order of complaint. Recourse of law in such cases should be taken against the persons bringing false or fabricated allegations in the shape of tendering false or fabricated evidence and in that respect the law and procedure adequately empowers the cognizance taking Magistrate. On the other hand, if the allegation is prima facie made out from the evidence tendered during the enquiry u/s 202 Code of Criminal Procedure, and such evidence rules out prima facie a case of inherent lack of improbability and/or a case for necessity of sanction u/s 197 Code of Criminal Procedure then, the cognizance taking Magistrate should not hesitate to proceed against the concerned public officer whatever position he may be occupying in his official capacity. As stated above, to strike a balance between the two it needs probing enquiry by the cognizance-taking Magistrate at the stage of enquiry u/s 202 Code of Criminal Procedure and not to get rid of the job by a routine enquiry.

Learned Counsel for the Petitioner states that the Petitioner shall furnish not only the name and address of the concerned Grama Rakhi who had come to call her at the instance of the opposite party but also she shall produce him for recording his statement in the enquiry u/s 202 Code of Criminal Procedure In addition to that, learned S.D.J.M. if he shall feel necessary may ask the Petitioner to produce authenticated/certified copy of the F.I.R., which, as alleged in the complaint, was lodged before the Officer-in-charge, Balipatna P.S. Learned S.D.J.M. may also direct to give the name and address of the Superintendent of Police before whom she had appeared and made allegation against the opposite party. In addition to that, any other step which may be necessary may be taken to conduct the enquiry and to dispose of the matter thereafter in accordance with law as far as practicable within a period of two months from the date of receipt of a copy of this order. Delay in that respect be scrupulously avoided, if necessary, by becoming rigid about not granting liberal or repeated adjournments.

Since the complainant has expressed his willingness to adduce further evidence at the risk of the aforesaid observations in case it is found to be false or fabricated case, she is allowed further opportunity to adduce further evidence in the enquiry u/s 202 Code of Criminal Procedure The evidence already tendered be read as a part of the statement in the said enquiry. Accordingly, the impugned order dated 10.8.1999 in I.C.C. Case No. 81 of 1999 is set aside and the said complaint is remanded for further enquiry and disposal in accordance with law.

It may be noted for the guidance of the learned S.D.J.M. that he is to take an independent view on the whole matter regarding existence or non-existence of a prima facie case and not to be influenced by anything stated in this judgment.

The Criminal Revision is accordingly allowed.