Hadu Dandasena and others vs Mangal Dandasena Baikuntha Gour alias Sandha and another

S. K. SAHOO, J. Â

The petitioners Hadu Dandasena, Dutia Dandasena, Chhabila Dandasena, Pabitra Dandasena and Alekha Dandasena have filed this application under

section 482 of Cr.P.C. in challenging the impugned order dated 10.04.2006 of the learned J.M.F.C., Rampur in I.C.C. Case No.4 of 2006 in taking

cognizance of offence under section 294 of the Indian Penal Code and issuance of process against them.

The complaint petition was filed by the opposite party Mangal Dandasena before the learned J.M.F.C., Rampur on 27.03.2006 relating to an incident

which took place on 22.03.2006 in the backyard of the house of the complainant in village Sanuapali. It is the case of the complainant that on

22.03.2006, the petitioners called one Amit known as Mr. Sahu Babu of the R.I., Circle, Dunguripali for demarcation of land and they tried to enter

inside the backyard of the complainant but the complainant prohibited them from entering and also requested them not to demarcate the land without

any reason. At this the petitioners got angry with the complainant and all on a sudden they formed an unlawful assembly being armed with deadly

weapons, trespassed into the backyard of the complainant and Hadu (petitioner no.1) abused the complainant in obscene languages like

“MADORA CHODA, GHU KHIA SALAâ€​ which caused annoyance to the complainant in presence of the witnesses.

It is further stated that accused Chhabila (petitioner no.3) holding a spade, accused Janata holding a stone and accused Dutia (petitioner no.2) holding

an axe rushed towards the complainant to assault him brutally. The witness Gorachand who happened to be the grandson of the complainant rescued

the complainant. Thereafter, the petitioners threatened the complainant to kill him. It is stated that the witnesses named in the complaint petition

witnessed the occurrence and some of them have also intervened in the occurrence. It is further stated in the complaint petition that the complainant

could not proceed to the police station on that day due to mental agony and as there was apprehension of danger to his life due to the overt act

committed by the petitioners and on the next day, he went to the police station and gave a written report scribed by one Ganesh Dandasena before the

A.S.I. of Dunguripali police station in absence of the O.I.C. who instead of registering the F.I.R., denied to receive the same and accordingly, the

complaint petition was filed.

After the presentation of the complaint petition on 27.03.2006, the initial statement of the complainant was recorded and the inquiry contemplated

under section 202 of Cr.P.C. was conducted. During course the inquiry, the complainant examined two witnesses, namely, Susanta Dandasena and

Trilochan Dandasena. After going through the complaint petition, the initial statement and the statements of the witnesses recorded under section 202

Cr.P.C., the learned J.M.F.C., Rampur came to hold that no case under sections 147/148/149/506/447 of the Indian Penal Code are made out.

However, taking into account the evidence of all the witnesses that the accused persons abused the complainant, the learned Magistrate held that

prima facie case under section 294 of the Indian Penal Code is made out and accordingly, he took cognizance of the offence under sections 294/34 of

the Indian Penal Code and issued process against the petitioners.

Mr. Ajit Kumar Choudhury, learned counsel appearing for the petitioners challenging the impugned order contended that there was civil dispute

between the parties and one application was filed by Chhabila Dandasena (petitioner no.3) before the Additional Tahasildar, Dunguripali for

demarcation of the land on 13.03.2006 and accordingly, the Demarcation Case No.22 of 2006 was registered and one Amin was deputed for the

demarcation and he submitted the report and after perusing the report of Amin, the Additional Tahasildar held that the objector (opposite party) was

creating disturbance over the schedule land now under his possession and he was creating public nuisance depositing cow dung by the side of the

house of the petitioner no.3. The petitioner no.3 was instructed to take shelter in the Court of Executive Magistrate for prohibitory order under

different sections of Cr.P.C. as there was apprehension of breach of peace. It is further contended by the learned counsel for the petitioners that after

the Amin submitted his report on 22.03.2006, the complaint petition was filed by the opposite party on 27.03.2006 with an oblique motive to harass the

petitioners with concocted allegation. It is further submitted that the learned Magistrate has found that the ingredients of the other offences are not

attracted which suggest that the complaint petition has been made with exaggerated allegation. It is further submitted that taking of cognizance under

section 294 of the Indian Penal Code with observation that all the witnesses have deposed that the accused persons abused the complainant is an error

of record inasmuch as per the complaint petition, initial statement as well as the statements recorded under section 202 of Cr.P.C., it is only the

petitioner no.1 Hadu Dandasena who abused the complainant. None appears on behalf of the opposite party. After going through the case records, it

appears that in the complaint petition, it is mentioned as follows:-

“At that time, Hadu abused the complainant in obscene languages like “MADORA CHODA, GHU KHIA SALA†which caused annoyance

to the complainant in presence of witnesses named in col.3 of the petition.â€​ In the initial statement, it is stated by the complainant as follows:-

“At this juncture, accused Hadu abused me in obscene words saying Maghia Sala Ghu Khia Sala......†The witness Susanta Dandasena has

stated as follows:-

“At this point of time Hadu got angry and abused the complainant saying Maghia Madorachoda, Ghu Khia Sala ......†The witness Trilochan

Dandasena has stated as follows:-

“At the point of time accused Hadu abused the complainant saying Maghia Besi Jabar Hauchi...†Therefore, it is apparent that the observation of

the learned Magistrate in the impugned order that the accused persons abused the complainant saying “MADORA CHODA, GHU KHIA

SALA†is an error of record. The allegation is only against petitioner no.1. The other petitioners have not abused the complainant. Therefore, I am of

the view that the impugned order of taking of cognizance under section 294 of the Indian Penal Code and issuance of process against petitioners nos.

2, 3, 4 and 5 namely, Dutia Dandasena, Chhabila Dandasena, Pabitra Dandasena and Alekha Dandasena are not sustainable in the eye of law and the

same is hereby set aside. So far as petitioner no.1 Hadu Dandasena is concerned, even though there are some discrepancies in the statements of

witnesses relating to the actual abusive words hurled at the complainant but since prima facie case under section 294 of the Indian Penal Code is

made out against him, I am of the view that there is no infirmity or illegality in that the part of impugned order.

Accordingly, the CRLMC application is allowed in part. The case will now proceed only against petitioner no.1 Hadu Dandasena for the offence

under section 294 of the Indian Penal Code.