Biraja Prasad Ray vs Nagendra Nath Dash

D.P. Mohapatra, J.—This application under Sections 397/398 and 401, Code of Criminal Procedure is directed against the order dated 26-3-1981 of the Chief Judicial Magistrate, Cuttack refusing to issue process against the opposite party on the complaint filed by the Petitioner.

The Petitioner, Biraja Prasad Ray filed a complaint case bearing I.C.C. No. 238 of 1979 against the opposite party Nagendra Nath Dash, who at the relevant time was the Sub-Inspector of Police, Sadar Police Station, Cuttack. In the petition filed on 11-6-1979 the Petitioner stated that he is a well known person enjoying a high status in society as a social worker and an ''A'' class contractor and an Ex-member of the Legislative Assembly, he is also connected with many educational and charitable institutions, like Salepur (sic) etc., his sons are also well placed in life. The Petitioner further stated that being a social worker, he used to render help to the people on being approached.

According to the Petitioner, in December, 1977 one Manorama Mishra wife of Banshidhar Mishra complained before him that she and her family members were being harassed frequently by the opposite party and the police. The lady with her family wanted to take shelter in the house of the Petitioner. Though the Petitioner was initially reluctant to acede to her request, he ultimately gave in due to her repeated entreaties. Accordingly, Manorama and her two daughters lived in the out-house of the residence of the Petitioner at Jobra in Cuttack town. The Petitioner thereafter continues to narrate that when he was the M.L.A. from Mahanga constituency he had occasion to complaint against one N.P. Singh, Officer-in-charge, Mahanga P.S. about the atrocities committed by the said police officer against the villagers. For this the police had been harbouring a revengeful attitude against the Petitioner. On 16-12-1977 when the Petitioner was away at Andhra Pradesh rendering relief to the cyclone affected people a false news flash was given in the daily news paper, the Samaj, containing certain insinuation against him. On his return, when the Petitioner came to know about the news he sent an open letter to the S.P., Cuttack, on 19-12-1977 making allegations against Sadar Police and demanded an enquiry. This was yet another reason to arouse anger of the police against the Petitioner.

The Sadar Police had registered G.R. Case No. 2964/1977, G.R. 2962/77 and G.R. 2963/77 against one Banshidhar Mishra and others, which were pending in the court of the Sub-Divisional Judicial Magistrate, Cuttack, N.P. Singh, Officer-in-charge, mahanga Police Station gave a false report u/s 110, Code of Criminal Procedure against the Petitioner and arrested him on 29-1-1978. The Petitioner was produced before the Sub-Divisional Judicial Magistrate, Cuttack in Non-F.I.R. Case No. 9 of 1978 u/s 110, Code of Criminal Procedure and was released on bail on 30-1-1978 inspite of the objection by the said N.P. Singh for the Petitioner''s release.

The Petitioner further alleges that since the opposite party bore a grudge against him, he wanted that some how or other the Petitioner should be retained in custody. Though, the opposite party knew that the Petitioner was in no way involved in the above mentioned three G.R. cases, he incorrectly with intent to keep the Petitioner in jail custody filed three separate application on 30-1-1978 in the said cases praying therein to remand the Petitioner to custody. In view of the said reports awl the offence alleged being u/s 395, Indian Penal Code, the Petitioner was not released on hail immediately. On 22-7-1978 when charge sheet was placed in the three cases, no prima facie case having been made out against the Petitioner, he was not charge sheeted. On the allegations stated above, the Petitioner filed a complaint against the opposite party for offence under Sections 218 and 219, Indian Penal Code. On the complaint petition an enquiry u/s 202, Code Criminal procedure was held by the court below. In course of the said enquiry, the relevant records in the three G.R. cases were called for and perused by the court and the statement of the complainant was recorded. On consideration of the materials, the court below passed the order dismissing the complaint, holding that no prima facie case was made out against the opposite party for issue of process.

Sri S.K. Dey, the learned Counsel for the Petitioner, contends that the reason given by the court below for dismissing the petition of complaint does not satisfy the requirements of Section 203, Code of Criminal Procedure and hence the impugned order is liable to be set aside and re-enquiry should be directed as provided u/s 398, Code of Criminal Procedure.

Sri Dey further contends that the records in connected G.R. cases reveal that there was no material therein to enable the opposite party to form an opinion that the detention of the Petitioner was necessary for the purpose of investigation of the case. The opposite party, a public officer entrusted with duty of maintaining records in the said cases committed an offence under Sections 218 and 219, Indian Penal Code in submitting an incorrect report on 29-1-1978 and 30-1-1978 opposing the release of the Petitioner on bail.

Sri P.K. Mishra, the learned Counsel for the opposite party, on the other hand, submits that the impugned order is correct and justified in the facts and circumstances of the case. According to him, the records reveal that Banshidhar Mishra was arrested from the house of the Petitioner. Banshidhar made a statement that he was using the cycle of the Petitioner for moving about from place to place. It was also the admitted position that the wife and daughters of the said Banshidhar Mishra were living in the house of the Petitioner. Materials to these effects were found in the case records in the three G.R. cases.

In these circumstances, the prima facie, opinion formed by the opposite party that in the interest of investigation of the three G.R cases the detention of the Petitioner was necessary was based on tangible facts. As such, the opposite party committed no offence under Sections 218 and 219, Indian Penal Code in submitting the report referred to above.

In order to attract Section 218, Indian Penal Code the essential ingredients required to be established are:

(1) the accused must be a public servant acting in such capacity ;

(2) he must have been charged with the preparation of any record or writing;

(3) he must have framed such record or writing knowing it to be incorrect;

(4) such framing of the record or writing must be with the intention or knowledge of likelihood:

(a) either causing loss or injury to the public or any person, or

(b) to saving any person from legal punishment, or

(c) to saving any property from forfeiture or other charge to which it is liable under law.

The section is concerned with bringing earring public servants to book for falsifying the public records in their charge. The essence of the offence u/s 218 is intent to cause loss or injury to any public or person or thereby save any person from legal punishment or save any property from forfeiture or any other charge.

Similarly, the essential ingredients of Section 219, Indian Penal Code are:

(1) The accused must be a public servant.

(2) He must have made a report or pronounced an order, verdict or decision.

(3) Such act must have been done in a stage of judicial proceeding.

(4) He must have known that the report etc. was contrary to law.

(5) He must have acted corruptly or maliciously.

The word ''maliciously'' though not defined in the Code has been interpreted in judicial decisions to mean where a person wilfully does an act which is injurious to another without lawful excuse, he does it maliciously. Stated in another way the them maliciously'' implies an intention to do an act which is wrongful to the detriment of another.

A perusal of the record in the present proceeding shows that except the statement of the Petitioner himself, no other oral evidence was recorded in the inquiry u/s 202, Code of Criminal Procedure. The case records in the concerned three G.R. cases were called for and perused by the Court. The only records which according to the Petitioner offended the provision of Sections 218 and 219, Indian Penal Code were three similar reports submitted by the opposite party, one in each of the three G.R. cases, requesting the Magistrate for remand of the Petitioner for 15 days. Therein the opposite party has stated that on 11/12-12-1977 night, dacoits led by Banshidhar Mishra, and Hari Das of Urali P.S. Sadar, Cuttack committed dacoity in four houses at Khannagar in most daring manner successfully one after the other and absconded soon after the occurrence. During course of investigation it was learnt that accused Banshidhar Mishra and Hari Das have been harboured by Biraja Prasad Ray in his house at Jobra. On 13-12-1977 accused Bansidhar Mishra was traced from Biraja Prasad Ray''s house whereas accused Hari Das and Ashoka Mishra @ Babu son of Banshidhar Mishra absconded from the house of Biraja Prasad Ray getting information/scent of police, since then the accused persons Hari Das and Ashok @ Babu Mishra are absconding. Since Biraja Prasad Ray harboured the offenders knowingly, he was liable to be arrested u/s 212, I.P.C. but he was not, available here after the arrest of Banshi Mishra. The report further states that Biraja prasad Ray has been arrested by the officer-in-charge, Mahanga Police Station and forwarded in custody in his P.S. Non-F.I.R. No. 9/78 u/s 118, Code of Criminal procedure on 29-1-1978. The opposite party prays that Biraja Prasad Ray may be remanded to jail custody for a period of 15 days in the above noted, cases which is pending investigation and he may not be released on bail since he would hamper the investigation and the remaining absconding accused persons may not be arrested.

From the records of the G.R. cases, it is revealed and the position is also admitted by the Petitioner that the wife and children of Banshi Mishra were limiting up in his house. Banshi Mishra made a statement that he used the cycle of the Petitioner for moving from place to place. Hence it cannot be said that there was absolutely no materials to connect the Petitioner with the incident, giving rise to the G.R. cases. As such, the statement contained in the report submitted by the opposite party in those cases for remand of the Petitioner cannot be stated to be raise to the knowledge of the said opposite party at the time the reports were made. Merely, because, ultimately a charge sheet was not submitted against the Petitioner, it is not sufficient to hold, even prima facie, that the ingredients of Sections 218 and 219, I.P.C. am established in the case.

Section 203, Code of Criminal Procedure vests wide powers in the Magistrate while considering the question of his dismissal of a complaint. The only restriction on the exercise of such power is that the Magistrate must confine himself to the materials mentioned in the section, i.e., the statement on oath (if any) of the complainant and or the witness and the result of the enquiry or investigation (if any) u/s 202, Code of Criminal Procedure and that he shall briefly record his reason for dismissing a complaint. Sine qua non or the order of the dismissal of a complaint is "no sufficient ground for proceeding" in the opinion of the Magistrate concerned. In the present case, it is not, the contention of the Petitioner that the enquiry u/s 202, Code of Criminal Procedure is insufficient, or that it is vitiated in any other manner. His only contention is that the reasons recorded by the Magistrate in the impugned order is not satisfactory. This by itself is no ground for this Court to interfere with the decision or the court below in exercise or revisional jurisdiction. On a perusal or the records and on hearing the learned Counsel for both the parties, I am satisfied that the learned Magistrate was justified in holding that in the facts and circumstances or the case there are no sufficient, grounds for issuing process against the opposite party. As such the order of dismissal or the complaint is not available to be interfered with in revision.

In view of the aforesaid dissensions, the revision petition is dismissed.