Manorama Mohapatra vs Harihar Sathua and Others

J. Das, J.—This revision petition arises out of the order dated 9-8-1985 passed by Sri R.C. Acharya. Sub-divisional Judicial Magistrate. Khurda dismissing the complaint petition u/s 203, Code of Criminal Procedure and refusing to take cognizance.

The complainant filed an F.I.R. alleging that her paddy seeds had been stolen by the opp. parties. After due investigation, Final Report was submitted and the complainant filed a protest petition which was treated as a complaint petition and the initial statement of the complainant was recorded. After recording the initial statement of the complainant the learned S.D.J.M. called for the police papers connected with the investigation of the case lodged by the complainant. On 9-8-1985, Final Report along with other documents were put up and the learned S.D.J.M. also perused the complaint petition, and initial statement of the complainant and the Final Report. It appears from the order dated 9-8-1985 that the learned S.D.J.M. mostly relied upon the materials collected by the police before submission of Final Report and basing upon those materials, the learned S.D.J.M. held that the case is of a civil nature and hence no cognizance need be taken. Against this order, the revision has been filed.

The learned advocate for the Petitioner argued that the procedure adopted by the learned S.D.J.M. is quite erroneous as he is not authorised to look to the police papers and as it. is not the procedure in accordance with the law prescribed for proceeding with a complaint filed in the court.

The learned advocate for the opp. parties argued that the S.D.J.M. is quite justified and this Court in revision should not interfere with the same as taking of cognizance is specially to the satisfaction or the S.D.J.M..

The learned advocate for the opp. parties Mr. Ram relied upon a decision reported in Prafulla Mohanty Vs. Ashok Kumar Das, , and tried to impress upon this Court that the Magistrate is not required to enter into a detailed discussion of the merits of the case at the time of taking cognizance and if the order is based upon prima facie satisfaction of the learned S.D.J.M., it is sufficient and this Court should not interfere with the order of the Magistrate. He also contended that the police papers show that a proceeding having bearing on a decision relating to the status of the parties in respect of the land in question is going on in O.L.R. Court and that proceeding has been contested from stage to stage and in such circumstances it is certainly a civil dispute and the learned S.D.J.M. has rightly held so. Hence there is no scope for interference.

I am not inclined to agree with the contention of Mr. Ram for the following reasons:

After the Final Report is submitted, the complainants filed a complaint petition and that was accepted as such and the complainant was also immediately examined on S. A. The learned S.D.J.M. neither took cognizance on the basis of the statement of the complainant nor postponed issue of process u/s 202 of Code of Criminal Procedure and called for the Final Report and police papers, and ultimately on the basis of Final Report and the police papers, the complaint was dismissed.

In a case reported in Anadi Naik v. State and three Ors. 1983 C.L.R. 18, the law applicable to a case of this nature bas been summed up very clearly in paragraph-5 which is as follows:

It has been a settled principle of law that a protest petition, when made, is to be treated as a petition of complaint and a Magistrate after compliance with the provisions of Chapter XV may either issue processes to the accused persons or dismiss the complaint. It bas been observed in the case of Mahabir Prasad Agarwal and Anr. v. The State. A. 1. R. 1958 Ori 11, that it protest petition is in the nature of a complaint and should be dealt with in accordance with the provisions of Chapter XVI of the Code of Criminal Procedure (old.). The same view has been taken by the Patna High Court in the case of State of Bihar Vs. Sakaldip Singh and Others, . In the case of Lakshman Jena Vs. Sudhakar Paltasingh, . this question has elaborately been dealt with by B. K. Patra, J. In that case the Sub-Divisional Magistrate (as then designated) without examining the Petitioner on oath and without proceeding in accordance with the provisions laid down in Chapter XVI of the old Code of Criminal Procedure (new Chapter XV), and relying mainly on the police report, rejected the protest petition. It was held that the procedure followed by the Magistrate was not only unjustified, but also contrary to law. It was observed that as held in Abhinandan Jha and Others Vs. Dinesh Mishra, the Magistrate had no power to call for a charge sheet when a final report had been submitted by the police agency, but the provision of Section 200 was mandatory and the omission to examine the complainant on oath u/s 200 was an irregularity and if by reason thereof, the complainant was prejudiced, he was entitled to an order that the subsequent proceedings were invalid. It was observed that, prejudice, in fact, had been caused to the complainant because he had; been deprived of an opportunity to explain his case to the Magistrate which he could have got had the Magistrate examined him on oath.

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In paragraph-6 of the same judgment the procedure to be adopted by the Magistrate in taking cognizance has been clearly stated and paragraph-6 runs as follows:

As to the procedure to be adopted by a Magistrate who chooses to take cognizance, the Supreme Court has laid down in Tula Ram and Others Vs. Kishore Singh, .

Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:

(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

On the basis of the above principles the Court did not appreciate the lower Court''s action in that particular case as the S.D.J.M. did not adopt the procedure prescribed by law and dismissed the protest petition by accepting the Final Report and without complying with the provisions of Chapter XV of the Code of Criminal Procedure.

In this case also the learned S.D.J.M. has not adopted the prescribed procedure and without complying with the provisions of Chapter XV has gone to give almost a final decision of the case basing upon the Final Report and the police papers, which are certainly distinct from the allegation in the complaint petition. Unfortunately the learned S.D.J.M. has also relied upon certain documents although those documents were not before him. Hence the order dated 9.8-1985 cannot be sustained and the same must be quashed.

In the result, the criminal revision is allowed and the order dated 9-8-1985 is quashed and the case is remitted back to the lower court with a direction to deal with the complaint petition in accordance with the prescribed procedure and in the light of the principles stated above.

Revision allowed.