Raj Kumar Mahala and Others vs State of Orissa and Others

Amitava Roy, C.J.—Heard Mr. B.S. Dasparida, learned counsel for the petitioners and Mr. Bhuyan, learned Addl. Public Prosecutor for the State of Odisha.

In spite of notice, the opposite party No. 2 has neither appeared nor arranged his representation.

In challenge is the validity of proceedings registered as I.C.C. No. 40 of 2006 of the Court of learned Sub-Divisional Judicial Magistrate, Sonepur.

The short facts relevant to be noticed, are that, a complaint had been filed by the present opposite party No. 2 before the above mentioned Court against the petitioners alleging commission of offence under Sections 341/294/323/355/34 of the Indian Penal Code and Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The learned trial Court on receipt of the complaint, by order dated 18.08.2006, on perusal thereof, took cognizance of the aforementioned offences and postponed the case to 19.08.2006 for recording of the initial statement of the complainant under Sec. 200 Cr.P.C. and examination of his witnesses. Subsequent thereto on 19.08.2006, the statement of the complainant was recorded and the case was adjourned till 22.08.2006 for recording of the evidence of the complainant''s witnesses under Sec. 202 Cr.P.C.

Mr. Dasparjda, learned counsel for the petitioners, with reference to the Sections 200 and 202 of Cr.P.C. as well as the decisions of this Court in Nira @ Niranjan Mohanty Vs. Narayan Padhan and Others, ; and Fakir Singh Vs. Bijaya Kumar Bagaria, , has submitted that the procedure adopted by the learned trial Court being in gross derogation of law, the impugned proceeding is reduced to nullity and thus, ought to be quashed.

According to Mr. Dasparida, in any view of the matter, the order taking cognizance of the aforementioned offences against the petitioners before recording of statement of the complainant and his witnesses, being illegal on the face of the record it is liable to be interfered with.

Mr. Bhuyan, learned Addl. Public Prosecutor for the State of Odisha supports the above contention raised on behalf of the petitioners.

Upon hearing the learned counsel for the parties, this Court is inclined to sustain the challenge. For ready reference, Sections 200 and 202 of the Cr.P.C. are quoted herein below:

"200. Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine him.

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Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made;-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."

A combined reading of the aforesaid two provisions reveals that any Magistrate, before taking cognizance of offence on a complaint lodged before him/her, has to first examine the complainant on oath and the witnesses present and thereafter, if prima facie satisfied about the commission of offence, to issue process to the accused persons. Therefore, there has to be a conscious application of mind after recording of the statement of the complainant and his/her witnesses for the purpose of taking cognizance of the offence before issuing process against the concerned accused persons. In case, after recording the statement of the complainant and his/her witnesses on first date, as contemplated under Section 202 Cr.P.C., the Magistrate concerned does not derive satisfaction about the culpability of the accused persons, he can defer the issuance of process till recording the statement of the witnesses of the complainant, as envisaged in Section 202 Cr.P.C.

In any view of the matter, the act of taking cognizance in law, cannot precede the recording of initial statement of the witnesses of the complainant in support of the allegations constituting the offences.

This Court in Nira @ Niranjan Mohanty (supra) and Fakir Singh (supra), in similar facts and circumstances have taken the same view. I respectfully subscribe to the proposition laid therein.

In the above view of the matter, the impugned order dated 18.08.2006 taking cognizance of the offence under Sections 341/294/506/323/355/394/34 of the Indian Penal Code and Section 3 S.C. & ST. (P.A.) Act, 1989, against the petitioners is interfered with.

As a result, the criminal proceeding being I.C.C. No. 40 of 2006 of the Court of learned Sub-Divisional Judicial Magistrate, Sonepur stands quashed.

The petition is allowed.