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Judgment
Dr. S.K. Panigrahi, J
This matter is taken up through hybrid arrangement.
In this WPCRL, the Petitioner has made a prayer before this Court for setting aside the order dated 22.09.2022 passed by the learned S.D.J.M., Khurda in G.R. Case No.528 of 2016 rejecting his petition for cancellation of N.B.W. issued against him.
Heard learned counsel for the Petitioner and the learned Additional Government Advocate for the State.
The Petitioner is a serving Soldier of Indian Army. An F.I.R. bearing F.I.R. No.69 of 2016 was lodged at Sadar Police Station, Khurda on 27.05.2016 for commission of offences punishable under Sections 341/ 323/ 448/ 380/ 294/ 506/ 34 of the I.P.C. against the present Petitioner, his father and his brother who is serving in Indian Air Force by the complainant/ Opposite Party No.4 (Fakir Mohan Paikray) who was a police personnel serving under the State of Odisha. The complainant had alleged that the Petitioner had trespassed and theft from his house which is out and out a false allegation since there is no house at all on the spot mentioned in the FIR.
Learned counsel for the Petitioner submits that the learned S.D.J.M., Khurda vide order dated 15.03.2021 under Annexure-4 rejected the petition filed by the Petitioner under Section 340(1) read with Section 195 of the Cr.P.C. for necessary order holding that the documents were fabricated by the Investigating Officer and the complainant during investigation phase prior to their production before the court as established from the police records. It is also evident from the Sketch of Crime Spot submitted by Investigating Officer of the case under Crime Details Form of Sadar Police Station, Khurda dated 27.05.2016 under Annexure-3 that the complainant did not have any house in the Crime Spot. Hence, entering of the Petitioner into the house of the complainant is completely baseless.
However, the Petitioner approached this Court seeking Anticipatory bail against such false FIR and was granted such bail by this Court vide order dated 04.10.2016 passed in ABLAPL No.14319 of 2016 and the Petitioner has joined the investigation as and when required. But, the report of the Investigating Officer regarding ascendance of the Petitioner before the learned S.D.J.M., Khurda triggers issuance of N.B.W. against the Petitioner without following due procedure as prescribed under Section 475 of the Cr.P.C.
The Petitioner appeared before the learned S.D.J.M., Khurda and approached under the provisions of Section 475 of the Cr.P.C. for forwarding the case to Army Authority as per the procedure laid down under Rule-3 of the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952 (hereinafter referred to as “the Rules” for brevity) which is duly reflected under Rule 411(8) of G.R.C.O.(Criminal) Vol. I issued by the High Court of Orissa. Accordingly, the matter was referred to the Army Authority by the learned S.D.J.M., Khurda.
In compliance with the said provisions under Rule-9 of the Rules, the Commanding Officer of the Army Authority vide order dated 18th November, 2019 assured the learned S.D.J.M., Khurda that the Petitioner will be allowed to attend the hearing on the date fixed by the court. Further, the Army Authority has deplored the declaration of the serving soldier as an absconder by the Investigating Officer which is out and out false and baseless.
In view of the above, the Petitioner filed an application under Section 70(2) of the Cr.P.C. for cancellation of N.B.W. as his presence had already been assured by the authority through the Commanding Officer. But the said application was rejected by the learned S.D.J.M., Khurda vide order dated 22.09.2022 with a direction to the Petitioner to voluntarily surrender first before the court and then seek for cancellation of the N.B.W. Accordingly, the petitioner is being unduly harassed by the Petitioner to surrender. The Petitioner being a law abiding citizen and a disciplined soldier of the Indian Army has been trapped in a procedural dilemma wherein his Commanding Officer is not permitting him to surrender and the learned S.D.J.M., Khurda ordered him to surrender voluntarily. The voluntary surrendering of the Petitioner is nothing but a direct insubordination of the Commanding Officer. Hence, issuance of N.B.W. is out and out illegal which has been issued without following due procedures. Hence, the Petitioner is constrained to approach this Court for seeking justice.
It is also submitted by the learned counsel for the Petitioner that the learned S.D.J.M., Khurda while passing the aforesaid impugned order dated 22.09.2022 has violated the guideline issued by the Supreme Court in Inder Mohan Goswami & Anr v. State of Uttaranchal & Ors. (2007) 12 SCC 1 which is reproduced as under:
“………a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive.”
It is also submitted that so far as maintainability of the instant Writ Petition is concerned, the Supreme Court in Whirlpool Corporation v Registrar of Trademarks,Mumbai (1998) 8 SCC 1 and Harbansh Lal Saini v Indian Oil Corporation Limited (2003) 2 SCC 107 has held that the Writ Petition is maintainable even if alternative remedy exist on the ground that the writ has been filed for the enforcement of fundamental rights.
He further submits that in the case of Popular Muthiah v State represented by Inspector of Police (2006) 7 SCC 296 the Supreme Court has held that High Court can suo motu exercise its inherent powers in the interest of justice. The relevant paragraph of the above judgement is reproduced hereunder:
“30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions in that:
(i) Power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.”
In view of the above and having regard to the present position of law, this Court is inclined to allow this WPCRL setting aside the order dated 22.09.2022 passed by the learned S.D.J.M., Khurda in G.R. Case No.528 of 2016 rejecting the petition of the Petitioner for cancellation of N.B.W. issued against him. Consequently, the N.B.W. issued against the Petitioner is cancelled.
This WPCRL is disposed of being allowed.
Urgent certified copy of this order be granted on proper application..
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