Philip Mandal and Others vs State of Orissa and Another

P.K. Tripathy, J.—Petitioners have filed this application u/s 482 of the Code of Criminal Procedure (in short, ''Code of Criminal Procedure'') with the prayer to quash the order of cognizance passed by the J.M.F.C., R. Udayagiri on 10.12.2001 in G.R. Case No. 155 of 2000.

On an earlier occasion Petitioner Nos. 1 to 5 had filed Criminal Misc. Case No. 6477 of 2001 u/s 482, Code of Criminal Procedure with the prayer to quash the FIR and proceeding of G.R. Case No. 155 of 2000. Petitioner No. 6 also separately sought for such a relief by filing Crl. Misc. Case No. 5898 of 2001 u/s 482, Code of Criminal Procedure Criminal Misc. Case No. 6477 of 2001 was heard and disposed of on 3.9.2001. Hon''ble the Chief Justice rejected the application with an observation that if a contention shall be made relating to maintainability of the case u/s 3 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, and raised before the Magistrate, then he shall deal with the same taking into consideration the merit of the case. Criminal Misc. Case No. 6758 of 2001 was thereafter taken up on 5.9.2001 by Hon''ble the Chief Justice. Keeping in view the decision in the case of Gagan Behera v. State of Orissa Criminal Misc. Case No. 6673 of 2000 and State of Bihar v. Murad Ali Khan and Ors. AIR 1989 SC 1, Hon''ble the Chief Justice rejected the application u/s 482, Code of Criminal Procedure As the Petitioner was not heard when such order was passed by Hon''ble the Chief Justice, therefore, the said Petitioner applied to recall that Order. On 19.10.2001 Hon''ble the Acting Chief Justice passed order in Misc. Case No. 2538 of 2001 recalling the order dated 5.9.2001 and directing for hearing on admission of the Crl. Misc. Case. On 12.11.2001, this Bench heard the application u/s 482, Code of Criminal Procedure After arguing for some time learned Counsel for the Petitioners did not want to proceed with the application u/s 482, Code of Criminal Procedure and therefore, the same was dismissed as withdrawn.

The aforesaid applications u/s 482, Code of Criminal Procedure were moved during pendency of the investigation.

After submission of the charge-sheet for the offences punishable under Sections 451/295-A, Indian Penal Code read with Section 4 of Orissa Freedom of Religion Act, 1967 (in short, ''the Act''), all the accused persons have filed this application u/s 482, Code of Criminal Procedure for quashing the order of cognizance. Petitioners, inter alia, advance the ground of want of sanction from the Collector-cum-District Magistrate as the principal ground to quash the order of cognizance for the offence u/s 295-A, Indian Penal Code and Section 4 of the Act, 1967. Learned Standing Counsel on 7.1.2003 has filed a copy of the sanction order for prosecution, passed by the Collector-cum-District Magistrate, Gajapati. Petitioners also challenge to the order of cognizance on the ground of non-existence of prima facie case for the offences of which cognizance has been taken. Copy of the FIR has been annexed to the application u/s 482, Code of Criminal Procedure

The ground of absence of prima facie case should not be afresh considered by this Court when that aspect was dealt with, though not discussed, to reject the prayer for quashing of the FIR and the Criminal Proceeding. Be that as it may, the facts alleged in the FIR clearly reveals that a prima facie case for the alleged offences is made out. Since it deals with the sensitive matter of religion, this Court declines to discuss the nature and particulars of the allegation. It is sufficient to indicate here that the ingredients of the offences are satisfied from the act alleged against the accused persons. However, the details of that shall be considered by the trial Court at appropriate stages of the trial.

Contention of the Petitioners relating to want of sanction has been belied by the order of sanction produced by learned Standing Counsel. Therefore, that ground is no more available to be considered by this Court.

Petitioners have filed a xerox copy of a petition said to have been made by the informant to the O.I.C. of Mohana P.S. relating to withdrawing the complaint on the ground that he was pursuaded to make such a false complaint. Though that does not add to any benefit of the accused persons, that indicates that the accused persons on bail may perhaps be misutilising the liberty and influencing the informant and gaining over him. In the recent past the Apex Court had taken a serious view of slackness of the prosecution and the State against the act of the accused in terrorising and gaining over the complainant and the witnesses (in the matter relating to Grodhra incident in Gujrat). Therefore, State and the prosecution should not be complacent with the situation after filing of a document like Annexure-2 by the accused persons. In the event the State discovers that there is influence of any kind on the complainant to gain him over before commencement of the trial, then the State should take appropriate action instead of remaining complacent with such situation. However, in that respect any move made by the State must be considered by the Court with due notice and opportunity of hearing granted to the accused persons.

Be that as it may, as noted above, the application u/s 482, Code of Criminal Procedure is devoid of merit because of existence of a prima facie case and presence of a sanction order.

The Criminal Misc. Case is accordingly dismissed.