Umesh Chandra Dalai alias Satu and Others vs Smt. Prativa Sahani and Another

A.S. Naidu, J.—This application u/s 482 of the Code of Criminal Procedure has been filed seeking to quash the order dated 30.4.2003 passed by the S.D.J.M., Berhampur in ICC No. 86 of 2002. The impugned order reveals that after perusing the complaint petition, the initial statement of the complainant and the statements of three witnesses examined u/s 202 Code of Criminal Procedure and being prima facie satisfied that materials were available with regard to commission of offences under Sections 498-A/304-B/506/34 IPC and u/s 4 of the Dowry Prohibition Act, the S.D.J.M. took cognizance of the said offences.

Mr. Misra, learned Counsel for the Petitioners, forcefully submitted that the cause of action, if any, for initiating the aforesaid criminal proceeding allegedly had taken place at Chenai and as such the S.D.J.M., Berhamur lacked initial jurisdiction to take cognizance of the offences. It was also submitted that on the basis of the same allegation, on an earlier complaint petition, Chellai Mudain P.S. Crime No. 2169 of 2001 was registered at Chenai and the investigation into the said case is pending by Chenai Police. I was emphatically submitted that for the self-same incident, opposite party No. 1 has fraudulently filed the present complaint petition and the learned S.D.J.M., Berhampur without appreciating the true facts has mechanically taken cognizance of the offenses directing to proceed against the Petitioners.

Mrs. Pravasi Nayak, learned Counsel for opposite party No. 1, however countenanced the argument advanced by Mr. Misra and submitted that the Court at Berhampur had jurisdiction to entertain the complaint case. It was also submitted by her that no investigation is pending at Chenai and as such the submission by the learned Counsel for the Petitioners are made with an avowed oblique motive to avoid the present criminal proceeding. A detailed counter-affidavit has also been filed on behalf of opposite party No. 1.

In consonance with Section 190 Code of Criminal Procedure, a Magistrate upon receiving a complaint of facts which constitute an offence and after being prima facie satisfied that materials are available to take cognizance of the offences alleged, may take cognisance of the offence. A perusal of the impugned order clearly reveals that the learned Magistrate on perusal of the complaint petition, and other materials as stated above was prima facie satisfied and took cognizance of the offences alleged in the case. I do not find any infirmity or illegality in the impugned order and decline to interfere with the same.

At the time of taking cognizance, a Magistrate is only required to peruse the materials produced before him by the complainant or the prosecution. It is open to an accused to raise all his submissions with regard to his defence, or maintainability of the case at the time of framing of charges or at any other appropriate time during the course of the criminal proceeding. I am, therefore, not persuaded to accept the contention raised on behalf of the Petitioners. But then the Petitioners on sworn affidavit have stated that on the basis of the self-same allegations an FIR was lodged at Chenai and Chellai Mudain P.S. Crime No. 2169 of 2001 has been registered and the investigation into the said case is in progress. It is also submitted that the Petitioners were granted anticipatory bail in connection with that case by a competent Court at Chenai. This submission is repudiated by the learned Counsel for opposite party No. 1 who submits that no investigation is pending at Chenai. This being a disputed question of fact cannot be effectively adjudicated in this proceeding u/s 482 Code of Criminal Procedure. Section 210 Code of Criminal Procedure stipulates that if during the pendency of a complaint case it is made to appear to a Magistrate that an investigation by police is in progress in relation to the offence which is the subject-matter of inquiry or trial held by him, the Magistrate shall stay proceeding or inquiry or trial and call for a report in the matter from the police officer conducting the investigation. In view of this clear position of law, without entering into the arena of controversy, I give liberty to the Petitioners to file a petition u/s 210 Code of Criminal Procedure before the S.D.J.M., Berhampur in the aforesaid Complaint Case. If such a petition is filed, the learned S.D.J.M., will dispose of the same in accordance with law. Till the disposal of such petition, the further proceedings of ICC No. 86 of 2002 shall remain stayed.

The CRLMC is disposed of.