Pitabas Behera & Others vs State & Another

G. Satapathy, J.

This is an application U/S. 482 of Cr.P.C. by 44 petitioners seeking to quash the entire criminal proceeding instituted against them after setting aside the order passed on 02.05.2018 by the learned J.M.F.C., Nimapara in I.C.C. Case No. 201 of 2017 taking cognizance of offences U/Ss. 147, 148, 294, 323, 324, 457, 506, 380, 436, 149 of IPC.

The facts in precise are that on 18.05.2017 O.P. No.2 instituted a complaint against the petitioners in I.C.C. Case No. 110 of 2017 in the Court of learned J.M.F.C., Nimapara who by an order passed on 20.05.2017 sent the complaint to I.I.C., Astaranga Police Station U/S. 156(3) of Cr.P.C. for registration and investigation. Accordingly, the IIC registered Astaranga P.S. Case No. 35 of 2017 corresponding to G.R. Case No. 453 of 2017 and conducted investigation, but he finding the complaint to be false and fabricated submitted final report as false vide FIR No. 41 dated 30.06.2017, whereafter O.P. No.2 filed a protest petition in shape of complaint in I.C.C. No. 201 of 2017 in the Court of learned J.M.F.C., Nimapara who after recording initial statement of O.P. No.2 and conducting enquiry by recording the statements of witnesses upon perusal of complaint took cognizance of offences U/Ss. 147, 148, 294, 323, 324, 457, 506, 380, 436, 149 of IPC and issued NBWs against the petitioners by the impugned order. It is stated in the protest petition by O.P. No.2 that he along with others are in continuous possession of land in plot No. 508 of Khata No. 88 of Mouza River Block measuring 175 acres as per the order of the Supreme Court, but such land being the river bed has been filled up with earth, thereby has become a high-rise land and they have been continuously enjoying such land by planting casuarina and cashew-nut trees, but on 30.06.2017, at about 10 A.M. the petitioners being armed with different weapon of offences trespassed into such land and damaged such trees by cutting it and when O.P. No.2 protested, they abused him in filthy language as well threatened & assaulted him as well as entered into the houses of O.P. No. 2 and others and stole away different household articles by setting fire to such houses.

In the course of hearing of the CRLMC, Ms. D. Mahapatra, learned counsel for the petitioners has submitted that the petitioners and their ancestors were/are in continuous possession of the land in question for last 70 years by virtue of a lease granted by Tahasildar and since the lease of the petitioners was expired and not renewed, the petitioners had approached this Court in W.P.(C) No. 809 of 2010 which was disposed of by a Division Bench of this Court on 03.08.2023 directing the Sub-Collector, Puri to examine the matter after hearing the petitioners and sixty interveners in I.A. No. 1952 of 2019 and pass fresh order in Temporary Lease Case No. 210 of 1990 after verifying the case records, but O.P. No.2 with false averments made in the complaint and protest petition has falsely implicated the petitioners. It is further submitted that since the complaint lodged by O.P. No.2 being investigated into by the Police in Astaranga P.S. Case No. 35 of 2017 after it was sent U/S 156 (3) of Cr.P.C. with submission of final report by the I.O. as false, there is no rhyme and reason to take cognizance of offences by ignoring the materials collected in the investigation conducted by the Police. It is also strongly urged by Ms. Mahapatra that there is absolutely no material on record to find out any primafacie case U/S 436 of IPC and thereby, the present case being civil in nature as well as motivated one, the entire criminal proceeding against the petitioners is nothing sort of an abuse of process of Court and liable to be quashed. Ms. Mahapatra accordingly has prayed to quash the entire criminal proceeding against the petitioners by setting aside the order taking cognizance and issuance of process.

In reply, none appears for O.P. No.2 to counter the submission of the petitioners despite being duly noticed and the counsel appearing for the State has only supported the impugned order in this case.

After having heard the submissions made for the petitioners upon perusal of record, it is found that the learned J.M.F.C., Nimapara by way of an order passed by 02.05.2018 has taken cognizance of offences U/Ss. 147, 148, 294, 323, 324, 457, 506, 380, 436, 149 of IPC and issued NBWs against the petitioners without issuing notice to them. What should be the duty of the Court after taking cognizance of offences has been well explained by the Apex Court in Inder Mohan Goswami and another vrs. State of Uttaranchal and others; (2007) 12 SCC 1, wherein a three Judge Bench of Apex Court has been pleased to hold as under:

The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.

Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

When non-bailable warrants should be issued

Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when:

* it is reasonable to believe that the person will not voluntarily appear in court; or

* the police authorities are unable to find the person to serve him with a summon; or

* it is considered that the person could harm someone if not placed into custody immediately.

As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.

In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable- warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court’s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

A careful reading of the above dictum of Apex Court, it goes without saying, “at the first instance the Court should direct serving of summons along with copy of the complaint”, but in this case the learned J.M.F.C., Nimapara without resorting to issue summons along with copy of the complaint had proceeded to issue NBWs without providing any opportunity to the petitioners and thereby, there is serious infraction of right of the petitioners.

Apart from the above facts, the averments made in the complaint itself reveal about some civil dispute between the parties which has been crystallized into the criminal complaint, but fact remains that the Police after conducting investigation had submitted final report in the complaint made by O.P.No.2 as false. A perusal of complaint, however, discloses some omnibus allegation against the petitioners for setting fire to the house of O.P. No.2 and his co-sharers. There is a remarkable difference between specific allegation and omnibus allegation in a criminal case inasmuch as there may be some substance in former case whereas, there may be grudge in the later case to settle the vendetta or vengeance against the rival groups.

In this case, the complaint made by O.P. No.2 in the form of protest petition appears to have some omnibus allegation to constitute offence U/S. 436 of IPC which assumes great significance in the factual scenario in view of the admitted position of filing protest petition being dissatisfied with police investigation and long standing dispute between the parties owing to claim of possession over some landed properties. Further, as revealed from the record that both the groups had foisted cases against each other by arraigning number of persons as accused persons. In sequence, the present complaint was being made against the petitioners who are 44 in numbers, by way of protest petition after the police submitted a final report as false vide FIR No. 41 of 2017 in Astarang P.S. Case No. 35 of 2017, which was registered on a complaint filed by OP No.2 and sent to the police station U/S. 156(3) of Cr.P.C. Keeping the aforesaid facts and developments on the anvil of principle of law for taking cognizance of offence, prima facie view of over implication cannot be ruled out and therefore, the cognizance taking must be on guard while taking cognizance of offence and issuing processes against the petitioners. In the aforesaid situation, it cannot be said that prima facie an offence U/S. 436 of IPC is attracted against the petitioners by mainly relying upon some omnibus allegation made against 44 persons, especially when the witnesses examined U/S. 202 of Cr.P.C. did not speak for it consistently.

Besides, Section 436 of IPC being a Sessions triable offence, the Court taking cognizance of it must clearly specify as to how it arrived at prima facie satisfaction for taking cognizance of such offence, but the impugned order is devoid of any reasoning or discussion as to how Section 436 of IPC stands attracted in this case. However, the certified copy of the documents, such as certified copy of the complaint, initial statement of the complainant and substance of enquiry of witnesses U/S 202 of Cr.P.C. have not been produced by the petitioners although photocopy of such documents have been filed with this CRLMC and thereby, this Court refrains itself to embark upon appreciating the averments/materials found in the photocopy of certified copy of these documents. Nevertheless, the impugned order taking cognizance of offence U/S. 436 of IPC and issuance of NBWs against the petitioners palpably appear to be erroneous which persuade this Court to set aside the order passed on 02.05.2018 by the learned J.M.F.C., Nimapara taking cognizance of offence U/S. 436 of IPC and issuing NBWs against the petitioners without issuing summons to them at the first instance. Hence, the impugned order modified to the extent of taking cognizance of offence U/Ss. 147, 148, 294, 323, 324, 457, 506, 380, 149 of IPC and the NBWs against the petitioners are stood quashed.

In the result, the CRLMC stands allowed in part on contest, but in the circumstance there is no order as to costs. Consequently, the impugned order stands modified to the extent indicated above and the case record be listed before the concerned Court for passing appropriate order in the light of observation made hereinabove.

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