Sachidananda Mohapatra and Others vs State of Orissa

P.K. Tripathy, J.—Petitioners are four out of 43 accused persons in G.R. Case No. 789 of 1996 of the Court of Sessions Judge-cum-Special Judge. Cuttack. They challenged the order of cognizance and continuance of the proceeding of the said G.R. Case on the grounds that:

(i) Informant is not a person belonging to scheduled caste;

(ii) Petitioner Nos. 2, 3 and 4 have not been named in the F.I.R. and

(iii) informant Sulochana Khuntia was set up by gang of criminals when the villagers interfered with illegal activities of that gang of Criminals. In other words, they claimed absence of a prima facie case.

At the stage of hearing on admission and disposal, on consent of parties, learned Counsel for the Petitioners Mr. D. Nayak. however, urged that order of cognizance by a Sessions Judge-cum-Special Judge, as per order dated 26 10 1998 is contrary to the ratio in the case of Gangula Ashok and Anr. v. State of A.P. (2000) 18 OCR (SC) 364 and since the provision in the Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules. 1995 (in short ''the Rules'') was not followed with respect to appointment of an Investigating Officer not below the rank of a Deputy Superintendent of Police and non-commitment of the case, Petitioners may be permitted to raise that legal issue even if Petitioners have not taken such a plea in their application u/s 482, Code of Criminal Procedure. He further argued that on such ground alone, the Criminal Proceeding is liable to be quashed. Learned Standing Counsel has no objection to hear the case on that legal issue. It is relevant to mention here that this case was heard along with a batch of Criminal Misc. cases involving the aforesaid legal issues. For the sake of convenience, this judgment is delivered separately in this case.

In the case of Gangula Ashok and Anr. v. State of A.P. (2000) 18 OCR (SC) 364, the Apex Court in clear term has held that:

Hence we have not doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straightaway be laid before the Special Court under the Act.

Following the ratio a similar view has been taken by this Court in the case of In Re : Sessions Judge-cum-Special Judge, Cuttack v. State of Orissa (2002) 22 OCR 92. The certified copy of the order-sheet dated 26.10.1998 goes to show that a charge-sheet involving the offence under Sections 457. 395, 436 I.P.C and Section 3 of the S.C. & S.T. (Prevention of Atrocities Act)(in short "the Act'') has been filed as against 43 accused persons and on that date, learned Sessions Judge-cum-Special Judge took cognizance of the offence and issued process against the accused persons. Thus, the procedure adopted by teamed Sessions Judge-cum-Special Judge, as per the aforesaid ratio is illegal and therefore, the impugned order is not maintainable and accordingly quashed. If in the meantime, learned Sessions Judge has not remitted back the case to the Court of the concerned Magistrate to follow the procedure for taking cognizance and to make commitment of the case, then, learned Sessions Judge shall do well to remit back the case record to such'' Magistrate to dispose of the G.R. case in accordance with law.

So far as the legal issue relating to non-investigation of the case by an officer authorised under law as per the provision in Section 9 of the Act read with Rule 7 of the Rules is concerned, by referring to a catena of decisions in the case of Kaira Naik and Ors. v. State of Orissa and Ors. Criminal Misc. Case No. 1096 of 1999 (judgment delivered today) this Court has held that cognizance of the offence u/s 3 of the Act cannot be taken of the basis of the charge-sheet unless the investigation was conducted by a competent Police Officer in accordance with the aforesaid provisions of law. It has also been held in that case that in view of the provision in Section 4, Code of Criminal Procedure the investigation made and charge-sheet submitted with respect to offences under the Indian Penal Code shall proceed, if there exits a prima facie case for such offences. Therefore, that aspect shall fee duly taken care of by concerned committing Magistrate while taking cognizance of the offence or passing order for commitment. It was also observed in that case that if any application shall be filed by the prosecution within two weeks seeking permission for investigation by an officer of the competent jurisdiction (as per Rule 7 of the Rules) then such application be considered by the cognizance taking Magistrate in accordance with law.

So far as the contention raised in the application u/s 482, Code of Criminal Procedure regarding falsity in the allegation by the accused persons at appropriate stage of the proceeding.

For the reasons indicated above, the order of cognizance passed by the learned Sessions Judge-cum-Special Judge. Cuttack. is set aside and the Criminal Misc. case is disposed of with the aforesaid direction.