Rabinarayan Das vs State of Orissa

P.K. Tripathy, J.—Heard.

On consent of both the parties this petition u/s 482 of the Code of Criminal Procedure, 1973 (in short ''the Code'') is disposed of at the stage of hearing on admission.

Order dt. 21.2.1994 in G.R. Case No. 617/92 of the Court of J.M.F.C., Salipur vide which learned Magistrate took cognizance of the offence under Sections 306/493, IPC and issued N.B.W.A. against the accused persons is under challenge in this application. Learned counsel for the petitioner states that evidence collected during investigation does not make out a prima facie case against the petitioner for the offence under Sections 306/493, IPC and learned J.M.F.C. without due application of mind mechanically accepted the charge-sheet and took cognizance of the said offences and also issued N.B.W.A. against him. He, however, argues that the application be disposed of with a direction to the lower Court to hear the petitioner in that matter in accordance with the ratio in the case of K.M. Mathew v. State of Kerala and another (1992) 5 OCR 66. He further states that petitioner had no knowledge or information of pendency of such a case against him, hence he could not approach the Court earlier.

Learned All. Standing Counsel, on the other hand, argues that when cognizance of the offence has been taken and warrant issued against the petitioner, petitioner should not be permitted to circumvent the issue by relying upon the ratio in the case of K.M. Mathew (supra). Apart from that, he argues, criticism against the impugned order is non-sustainable due to existence of a prima facie case against him.

It is the settled position of law that inherent power should be exercised by the High Court in rarest of the rare cases where parties are not left with any other remedy so as to prevent abuse of process of Court or to give effect to any order under the Code or to secure the ends of justice. Such power should not be invoked or exercised on mere asking. Keeping in mind the aforesaid principle vis-a-vis the contentions of the parties, it emerges that petitioner pleads about his ignorance of the pendency of the investigation and the criminal case and he asserts that no prima facie case is made out against him for the offences u/s 306/493, IPC from the materials available in the case diary. Under such circumstances, in all fairness he should be allowed to raise his points before the cognizance taking Magistrate only in the event of satisfying the lower Court that actually he was ignorant about the investigation and pendency of the case against him. This aspect can be properly assessed by the cognizance taking Magistrate by looking to the case diary and the G.R. case record. In the event learned Magistrate shall come to a conclusion that petitioner had knowledge or information regarding pendency of the case and investigation, then petitioner''s prayer to recall the cognizance order be rejected in limine because of inordinate delay in approaching the Court in that matter. At this stage learned counsel for the petitioner argues that in such a situation petitioner may be permitted to contest on the issue of non-existence of a prima facie case at the time of consideration of charge. No such direction need be issued inasmuch as according to the provision of law, at the time of consideration of charge under Chapter XVII of the Code, trial Court is required to hear the parties and to pass judicial order as to whether prima facie case constituting any offence is made out. In this case also trial Court has to consider the matter in accordance with law.

Hence, the Criminal Misc. Case is disposed of in accordance with the above direction and observation. To avoid any further delay, it is also directed that petitioner shall file the petition to recall the cognizance order within seven days from the date of its appearance and such application be disposed of, in accordance with the above direction and observation, within a period of fifteen days thereafter. In that respect, petitioner shall co-operate in participating in hearing failing which it shall be open to the learned Magistrate to peruse and dispose of the application on merit within the stipulated period. Petitioner is further directed to surrender in the Court of J.M.F.C. within a period of fifteen days hence and if he does so then learned J.M.F.C. may do well to hear and dispose of his bail application in accordance with law during the first hour. In the event of rejection of that bail application if petition for bail shall be moved in the Court of Sessions Judge, Cuttack, that Court may do well to hear and dispose of the bail application on the same day, provided lower Court record with case diary shall be made available to him. If petitioner shall file a petition and deposit the cost of a Special Messenger learned J.M.F.C. shall transmit the lower Court record and case diary to the Court of Session through a Special Messenger immediately and without waiting for any formal order from the Court of Session.