Santosh Kumar Biswal and another vs Sahadev Mallick

Heard.

In this application u/s 482, Cr. P. C. petitioners pray to quash the order of cognizance in I.C.C. No. 66 of 1996 of the Court of S.D.J.M., Bhanjanagar and to recall the order of the process so far it relates to both of them.

Mr. Ashok Mohanty, learned counsel for the peti-titioners states that for the selfsame occurrence, on the basis of the F.I.R. G.R. Case No. 204 of 1996 was registered in the Court of S.D.J.M., Bhanjanagar. On completion of the investigation, charge sheet was filed, but the present petitioners were not chargesheeted as accused persons. Though attempt was made by the informant through the Additional Public Prosecutor to add the present two petitioners as accused in that G.R. Case, but that application was rejected by learned S.D.J.M. on 25-9-19%. The impugned order taking cognizance was passed on 30-4-1998. Learned counsel for the petitioners states that in the order dated 30-4-1998 process was directed to be issued against the present petitioners as the co-accused persons along with the other accused persons in the said complaint. Learned counsel for the petitioners thus states that when once the learned S.D.J.M. refused to include the petitioners as accused for the self-same occurrence vide the Order dated 25-9-199b in G.R. Case No. 204 of 1996, it is peculiar enough for learned S.D.J.M. to issue process against the petitioners in the complaint case on 30-4-1998.

Mr. Sarangi, learned counsel for the opposite party, on the other hand, states that refusal to include the petitioners as accused in the G. R Case was on a technical ground that they were not chargesheeted and not on merit with the finding regerding absence of Rtima facie case. He further argues that the order of cognizance dated 30-4-1998 was passed after perusal of the statements of a large number of witnesses which was recorded in the enquiry u/s. 202, Cr. P. C. and order was passed to issue process against the accused persons including the peti tioners on the basis of existence of a prima, facie case against them. He further states that the aforesaid order in the com plaint being independent of the order in G. R. Case, therefore, petitioners are not to get any advantage from out of the circum- stnce of rejection of the application of the prosecution by the S.D.J.M. in the G. R. case.

Learned Counsel for the petitioners also argues that during the course of enquiry u/s, 202, Cr. P. C. though eleven witnesses were examined but such ate not consistent regarding presence of the petitioners at the spot of occurrence and also relating to the offence .committed by them in course of the occurrence and, therefore, process u/s. 204, Cr. P. C. should not have been issued against them. In that context, learned counsel fot the opposite party argues that it is neither necessary nor required fox the Magistrate to make a roving enquiry at the stage of cognisance and, apart from that, the evidence which is available on record is sufficient to take cognizance and also to issue process against the accused persons including the present petitioners.

It is-also stated at the Bar that learned S.D.J;M. has passed order to club''both the cases, i. e. I.C.C. Case and the G.R. case and tb undertake a common trial and the parties have conceded to that.

On considering the aforesaid contention and after perusal of the statements of the witnesses in the L.C.R. this Court finds that there exists a prima facie case for issue of process against the petitioners. The law does not prohibit or prevenp an informant in a police case to lodge a complaint on reasonable circumstance. In this case nothing has been shown about any unreasonability in filing of the complaint. In that context the safety measure as provided in section 210, Cr. P.C. has not been stated to have been ignored or violated by learned S.D.J.M. The order of cognizance and issue of process in the G. R. case is to be governed by the materials collected during the course of investigation. Any lacuna or lapses from the side of the Investigating Agency may allow a person to escape from, the clutches of law temporarily inasmuch as the leftover accused .can be asked to face the trial by resorting to section 319, Gr. P. C. or by tiling protest petition/complaint in the court of the cognizance taking Magistrate. If a vigilant informant takes recourse to section 200 Cr. P. C. and if that is legally maintainable, then it cannot be ignored to be considered. The cognizance taking Magistrate is to consider the same on the basis of the evidence which is produced u/s 200 and/or section 202, Cr, P. C, On perusal of the lower court record, this Court finds that learned S.D.J.M. has properly followed the procedure as provided in Chapter XV of the Criminal Procedure Code.

In the above context, the grievance of the petitioner against the S.D.J.M. is also on the ground that at the time of assessing the evidence deceived in the enquiry u/s 202, Cr. P. C., learned S.D.J.M, did not take note''of the materials in the case diary in the connected G. R. Case though both the cases, were posted to the same day i. e. 30-4-1998. There is no hard and fast rule provided or prohibiting a cognizance taking Magistrate to peruse the case diary if he is put into a position which exists in this case in the aforesaid manner. But one thing is, certain from the provision in Chapter XV that the cognizance taking Magistrate cannot ignore the evidence received in course of the enquiry u/s 202, Cr. P. C, on the ground of contradictory or inconsistent materials available in the case diary. The simple reason for that is that neither of the evidence is conclusive relating to the matter under consideration and truth or otherwise in such statement is liable to be assessed only at the time of trial. In view of that position of law, no fault can be found with learned S.D.J.M., as complained by the petitioner, for not perusing the case diary at the stage of assessing the evidence recording u/s 202, Cr. P. C. relating to issue of process.

In the instant case, as there is existence of a prima facie case, this Court is not inclined to invoke the inherent power either to quash the order of cognizance or to recall the order of issue of process againsc the petitioners. Accordingly, the application u/s 482, Cr. P. C. stands dismissed being devoid of merit.

Learned counsel for the petitioners states tbat by 12-4-2001 both the petitioners shall surrender and apply for bail in the Court of S.D.J.M., Bhanjanagar and direction be issued to the Courts below to release them on bail. In view of the above submission, it is observed that if both the petitioners shall surrender and apply for bail by the aforesaid date, then learned S.D.J.M., Bhanjanagar may do well to hear and dispose of that bail application in accordance with law and on its own merit, as far as practicable, during the first half of the day itself.

Crl. Misc. Case dismissed.