Sri. Akshaya Kumar Parida vs State of Orissa

P.K Tripathy, J.—Heard further argument.

In course of hearing, perused the report of the SDJM. Bhubaneswar sent vide his letter dated 21.1.2003. Also perused the xerox copy of the case diary of Mancheswar PS. Case No. 52 of 1994 (corresponding to G.R. Case No. 632 of 1994 of the Court of SDJM. Bhubaneswar) and the relevant pages of the station diary of that police station, on being produced by Mr. A.K. Mishra, learned Standing Counsel.

Petitioner has prayed to quash the order of cognizance Annexure-2 and order dated 7.9.2002 Annexure-7. The later order under Annexure-7 is the order passed by the SDJM., Bhubaneswar in rejecting the application filed by the Petitioner to discharge him. On the other hand, learned SDJM., explained the substance of the accusation to the Petitioner in accordance with the provision u/s 251, Cr. P.C.

The following facts are not in dispute:

(i) On the basis of FIR lodged by the informant on 22.2.1994 Mancheswar P.S. Case No. 52 was registered vide station diary entry No. 682. After completion of investigation a charge-sheet was submitted.

(ii) Because of registration of P.S. Case, inter alia, for the offence u/s 3 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, the case record was transmitted to the Court of Special Judge-Cum-Sessions Judge, Bhubaneswar.

(iii) On receipt of the charge-sheet, the Special Judge, Bhubaneswar took cognizance of the offences punishable under Sections 447/294, Indian Penal Code and Section 4(viii) of the PCR Act and issued process on 4.9.1995. Accordingly, process was issued against the Petitioner. As against that, Petitioner filed application u/s 482, Code of Criminal Procedure, i. e., Criminal Misc. Case No. 1230 of 1996 with the prayer to quash the aforesaid order of cognizance. Various grounds were advanced in that application including the ground of filing of a false case by the informant for working private vengeance. In that application however there was no assertion relating to any mistake about the date of occurrence being after the date of registration of the P.S. Case. On 27.2.2002, that application was allowed by quashing the order of cognizance dated 4.9.1995 of the Special Judge, Bhubaneswar and a direction was given to transmit the case record (G.R. Case) to the Court of SDJM, Bhubaneswar for necessary orders in accordance with law. It was also observed in that order that the ground of absence of a prima facie is a matter that the Petitioner may take at a later stage in that proceeding after order of cognizance would be passed, and at that stage learned Magistrate shall consider the plea of the Petitioner.

(iv) On 16.4.2002, learned SDJM. Bhubaneswar perused the charge-sheet and the case diary and was satisfied about existence of a prima facie case for the above noted offences under the Indian Penal Code and PCR. Act. Since the Petitioner had filed an application on 15.4.2002 with a prayer to recall the order of cognizance, therefore, l earned Magistrate posted the case for consideration of that application. On 4.5.2002, after due consideration of the contention of the Petitioner and on perusal of the materials in the case diary, learned Magistrate rejected the application to recall the order of cognizance and directed for his appearance in accordance with the order of cognizance dated 16.4.2002. As against that, Petitioner again moved an application u/s 482, Code of Criminal Procedure registered as Criminal Misc. Case No. 4851 of 2002. In that application, inter alia, Petitioner stated that though the informant signed the FIR on 23.2,1994 and though in her statement u/s 161, Cr. P.C., she has stated that the occurrence took place on 23.2.1994, but the above noted P.S. Case was registered at Mancheswar police-station on 22.2.1994. Accordingly he alleges about unholy combination of the informant and the investigating agency besides alleging so many other things relating to absence of prima facie case.

(v) On 25.6.2002 Criminal Misc. Case No. 4851 of 2002 was heard and disposed of. In that order this Court declined to interfere with the impugned order, but observed that " in the event the Petitioner files an application to be discharged on the aforesaid grounds at the time of framing of charge, the same shall be considered and necessary orders may be passed by the learned Magistrate."

(vi) On 7.9.2002, Petitioner moved an application claiming for discharge, and on that date the impugned order was passed rejecting that application and explaining the accusation to him in accordance with the provision in Section 251, Code of Criminal Procedure, because the case is to be governed by summons procedure.

(vii) Petitioner has approached this Court afresh in the present application to quash the order dated 7.9.2002 along with the order dated 16.4.2002.

In course of hearing, Petitioner relies on the certified copies of the FIR and the statement u/s 161, Code of Criminal Procedure, of the informant as the trump-card to reiterate his contention that when, according to the informant, the occurrence took place on 23.2.1994, there could not have been registration of the P.S. Case on 22.2.1994. Since the certified copy of the said documents clearly supports the aforesaid contention of the Petitioner, therefore, this Court wanted to know if the dates in the either instance has been clearly recorded or interpolated or over-written. In that context, the above noted report of the SDJM indicates that there has been interpolation by over writing in the FIR and the statement u/s 161, Code of Criminal Procedure with respect to the date ''23.2.1994''. In other words, after the over-writing or the interpolation presently the date is readable as 23.2.1994. The xerox copy of the FIR which was retained in the police-station and the xerox copy of the 161 statement of the informant which is available in the copy of the case diary kept in the Police-station, it appears that there has been no such over-writing and in that not only the date of incident has been noted as 22.2.1994 but also the date of lodging the report has also been noted as 22.2.1994. The corresponding Station Diary Entry is also of 22.2.1994. Therefore, it appears from the aforesaid circumstance that there has been an attempt to tamper with the case record so as to raise a contention relating to the date of incident and the date of reporting before the Police. When there is no material on record to show or suggest that after lodging of the FIR the informant has not come to the Court in connection with the above G.R. Case and when she is not going to be benefited because of such tampering with the record, therefore, if not anybody else, it is the Petitioner who may be the probable beneficiary if the interpolations in the record remains as it is. By that, this Court does not make any allegation of interpolation having been made by the Petitioner, but indicates about a reasonable inference in that respect. The whole contention of absence of a prima facie case advanced by the Petitioner on the basis of the aforesaid dates in the FIR and the police record is devoid of merit so as to attribute motive for a false case or regarding non-existence of a prima facie case or that the FIR was lodged and investigation was undertaken because of connivance between the informant and the investigating officer. In that respect, the wisdom of learned SDJM is appreciable because he was not swayed away by the aforesaid plea of the Petitioner. Learned SDJM in that respect is right to hold that the matter relating to descripancy in the dates shall be considered at the time of trial with due reference to evidence on record.

In course of hearing, Petitioner also argues that several criminal cases have been brought against him at the instance of the informant only because of a boundary dispute and dispute relating to land, and in that context the deposition of the so called contractor and favourable order in favour of the Petitioner in those criminal proceedings are sufficient to make inference that the present case is an outcome of the vengeance of the informant on the Petitioner. The aforesaid argument of the Petitioner appears to be good defence plea but certainly not a plea which can be entertained at this stage of the proceeding when the trial of the case has not yet commenced by examination of witnesses and when the said contractor is not before the Court to explain the circumstances and when the identity of that contractor is yet to be established as an witness in the other proceeding (from which the deposition is filed). Apart from that, Court cannot make an inference and a logical conclusion from orders in other criminal cases that because the previous criminal litigation between the parties ended in favour of the accused, therefore, the subsequent criminal litigation must be a false one. Such a presumption at its threshold is hazardous and against interest of justice. In that respect, at appropriate stage of the proceeding on due perusal of the evidence available on record the Court should take a due decision. Therefore, the aforesaid contention of the Petitioner does not entitle him to the relief of quashing of the proceeding or granting a discharge at this stage of the criminal proceeding. In course of hearing argument, Petitioner refers to and relies on the case of Dilawar Balu Kurane v. State of Maharashtra, (2002) 22. OCR (SC) 295. This Court finds the said ratio is of no help to the Petitioner in this case because of the distinguishable facts and circumstances involved.

For the aforesaid reasons, the application u/s 482, Code of Criminal Procedure stands rejected and the Criminal Misc. Case is dismissed.

Before parting with the case, this Court feels it proper to make the following directions and observations in view of the fact that the alleged occurrence took place in the year 1994 and the trial of the case is yet to commence because of the conduct of the Petitioner for time and again approaching this Court on one plea or the other with a view to wriggle out from the rigority of the trial. Therefore, learned SDJM is directed to take up the trial of the case and dispose of the same as early as possible and preferably within a period of three months from the date of receipt of a copy of this order. Learned Standing Counsel undertakes to instruct the concerned Police Officers incharge of that Police-station to preserve and produce the aforesaid copies of the FIR, Case Diary and the Station Diary at the time of trial if learned SDJM shall so direct or the prosecution shall so require. He also undertakes to issue appropriate instruction to the Superintendent of Police, Bhubaneswar to instruct the local police authority to secure the attendance of the witnesses, and particularly the official witnesses, in the event of receiving such requisition from the Court of SDJM Bhubaneswar. Under such circumstance, an year-old case of more than seven years, is directed to be disposed of by the SDJM. Bhubaneswar in the aforesaid manner. Petitioner is directed to co-operate in that respect. In the event of any failure on his part to participate in furtherance of the disposal of the criminal trial, it is open to learned SDJM., to take appropriate action including coercive action only with a view to comply with the aforesaid directions relating to early disposal of the proceeding.

A free copy of this order be handed over to Mr. A.K. Mishra, learned Standing Counsel, for due instruction and direction to the concerned Police Officers. A copy of this order also be sent immediately to the Court below.

Crl. Misc. Case dismissed.