Mahendra Behera & Another vs State Of Odisha & Another

G. Satapathy, J.

The prayer of the petitioners in this CRLMC is to quash the order passed on 15.05.2015 by the learned S.D.J.M., Talcher in G.R. Case No. 1316 of 2013 arising out of Colliery P.S. Case No. 414 dated 29.11.2013 taking cognizance of different offences and the criminal proceeding arising thereon.

The facts as emerges in this case arise out of an FIR lodged by O.P. No.2 against the petitioners and others on 29.11.2013 alleging therein that she along with others had been to the petitioners to protest their disengagement from the work of 3/4 sidings, but the petitioners and their henchmen numbering 70 to 80 persons attacked them and in the process, the petitioners outraged her modesty and other ladies by pulling their wearing apparels. On this FIR, Colliery P.S. Case No. 414 dated 29.11.2013 was registered which was accordingly investigated into and on conclusion of investigation, charge sheet was placed vide C.S. No. 71 of 2015. Accordingly, the learned S.D.J.M., Talcher by the impugned order dated 15.05.2015 took cognizance of offences U/s. 147, 341, 323, 354(B), 294, 506, 392 of IPC, 3(1)(x)(ix) SC/ST (PA) Act read with 149 of IPC. The petitioners by way of this CRLMC have challenged such order taking cognizance of offence and the criminal proceeding arising thereon.

In the course of hearing of CRLMC, Mr.D.Mohapatra, learned counsel for the petitioners has submitted that although there is absolutely no material against the petitioners for commission of offence U/Ss. 147/354/392/294 of IPC read with Section 3(1)(x)(ix) SC/ST (PA) Act, but learned counsel S.D.J.M. without proper appreciation of the materials on record took cognizance of offences for aforesaid sections by the impugned order, even though charge sheet has submitted only against two persons and the informant is not a member of SC and ST community. Mr.Mohapatra by relying upon a number of decisions has prayed to quash the cognizance order and consequently the criminal proceeding against the petitioners.

On the other hand, Mr.P.K.Patnaik, learned AGA by drawing the attention of the Court to the facts has submitted that the learned S.D.J.M. has not committed any illegality in taking cognizance of offences and thereby, the impugned order cannot be faulted with.

Admittedly, the FIR was lodged way back on 29. 11.2013 and in the meanwhile near about ten years has elapsed, but the petitioners are unable to produce the copy of statement of witnesses. Although the petitioners have produced the certified copy of the impugned order, but they have failed to produce the certified copy of charge sheet and statement of witnesses in the present case, no matter the petitioners have produced photocopy of certified copy of the charge sheet in the present case which indicates submission of charge sheet against the petitioners on 30.04.2015 and in the meanwhile around more than eight years have elapsed. Besides, the petitioners have produced photocopy of certified copies of FIRs in Colliery P.S. Case No. 363 of 2013 and Colliery P.S. Case No. 413 of 2013 which were registered against some other persons on the FIR of petitioner No.2 and one Bichitra Nanda Sahoo respectively. Learned counsel for the petitioners in fact has annexed these documents to indicate that the present case against the petitioners in Colliery P.S. Case No. 414 dated 29.11.2013 is the outcome of vengeance of the informant group being led by some other influential persons, against whom petitioner No.2 and another person had lodged FIRs for commission of offences upon them. In absence of any reference to the name of the informant in Colliery P.S. Case No. 414 of 2013 as accused in Colliery P.S. Case No. 363 of 2013 and 413 of 2013, this Court is, however, unable to persuade itself to consider that the present case is the outcome of vengeance of the informant, more particularly when the informant of the present case has not been shown to be related in other cases lodged by the petitioner No.2 and another.

In addition, it is contended on behalf of the petitioners that although the informant is not a member of either SC or ST community, but the petitioners have been charge sheeted for offence U/S. 3(1)(x)(ix) SC/ST (PA) Act. The photocopy of the certified copy of FIR and the charge sheet enclosed by the petitioners itself disclose that two persons who had accompanied the informant to the spot of occurrence are members of ST community. On the other hand, the petitioners had not been able to clarify by way of producing the statement of such witness belonging to ST community that they had not been intentionally insulted by reason of their caste. It is, however, contended by the petitioners that since charge sheet has been submitted against two persons, the imposition of Section 147 and 149 of IPC would not be in accordance with law inasmuch as to constitute an offence U/S. 147 and 149 of IPC there must be an unlawful assembly of five or more persons as per the provision of Section 141 of the IPC, but such assertion can be examined on consideration of the entire materials placed on record. The petitioners have not enclosed the entire set of facts in the form of statement of witnesses, although the petitioners could able to enclose the statement of witnesses in other cases like Colliery P.S. Case No. 363 of 2013 which is not the subject matter of the present CRLMC. This Court, therefore, is precluded from assessing and perusing the complete materials placed on record. It is, however, not disputed that the petitioners can raise those points at the time of consideration of charge which can be addressed to by the Court in seisin of the case since it would have the privilege of going through the entire materials placed on record. Besides, the petitioners could not clearly apprise the Court about the developments that might have taken place after submission of charge sheet and impugned order in the year 2015 to till date. Although the petitioners have relied upon number of judgments to quash the impugned order and proceeding thereon, but their applicability certainly could not be tested with due to incomplete set of facts inasmuch as the petitioners have not produced the entire materials collected by the I.O. in the course of investigation. In such view of the matter, this Court does not persuade itself to consider that the impugned order together with the criminal proceeding is an abuse of process of Court so as to exercise the power U/S. 482 of Cr.P.C. The petitioners, however, is at liberty to urge all those points as raised in this CRLMC at appropriate stage of the case before the Court in seisin of the case which shall be considered in accordance with law.

In the result, the CRLMC stands dismissed on contest with aforesaid liberty, but in the circumstance there is no order as to costs.

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