Sudhansu Parida vs State of Orissa and Another

R.N. Biswal, J.—The petitioner has filed this case u/s 482, Cr.P.C. with a prayer to quash G.R. Case No. 229 of 2003 arising out of ICC No, 51 of 2003 pending in the Court of SDJM, Udala.

As per the petition, on 23.7.2003 one Phulamani Behera filed ICC No. 51 of 2003 (Annexure 1) before the learned SDJM, Udala making some false and frivolous allegations against the petitioner. Without examining the complainant or her witnesses, on 25.11.2003 the learned SDJM simply forwarded the complaint petition to the Officer-in-Charge of Khunta Police Station through the CSI, Udala u/s 156(3), Cr.P.C. for registration and investigation of the case with a direction to submit the FIR by 4.11.2003. Pursuant to the said direction, the OIC, Udala Police Station treating the complaint petition as FIR, registered PS Case No. 76 of 2003 under Sections 341, 323, 294, 354/506(2), IPC read with Section 3 of SC & ST (PA) Act and sent it to the Court which was registered as G.R. Case No. 229 of 2003 (Annexure2). It appears from Annexure 2 that since the alleged offences includes offence u/s 3 of SC and ST (PA) Act, which cannot be investigated by any police officer below the rank of DSP, the Officer-in-Charge, Khunta, Police Station did not take up investigation. The present case has been filed to quash the G.R. Case No. 229 of 2003 arising out of ICC No. 51 of 2003 as mentioned earlier.

The learned counsel appearing for the petitioner submitted that the offence u/s 3 of SC and ST (PA) Act being triable by the special Court which is essentially a Court of session, the learned SDJM himself ought to have examined the witnesses produced by the complainant instead of sending the complaint petition to the OIC of Khunta Police Station for investigation as required u/s 202, Cr.P.C. Since he violated the mandatory, provision of law, G.R. Case No. 229 of 2003 arising out of ICC No. 51 of 2003 of the Court of SDJM, Udala ought to be quashed. He cited the decision in Moly and Another Vs. State of Kerala, where the apex Court held that a special Court under the SC and ST (PA) Act is essentially a Court of session. In view of the decision of the apex Court, it is held that special Court under the SC and ST (PA) Act is essentially a Court of session.

Proviso (a) to Sub-section (1) of Section 202, Cr.P.C. postulates that in a complaint case exclusively triable by the Court of session, the Magistrate cannot direct a Police Officer to investigate into it, for the purpose of deciding whether or not there is sufficient ground for proceeding: Again proviso to Sub-section (2) of Section 202, Cr.P.C. ordains that if it appears to the Magistrate that the offence complained of is exclusively triable by the Court of session, he shall ask the complainant to produce all his witnesses and examine them.

In the decisions in Rosy and Anr. v. State of Kerala and Ors. reported in (2000) 18 OCR 490 and Dibakar Singh and Anr. v. Birakishore Jarika 2004 (II) OLR 67 as cited on behalf of the petitioner, the apex Court and this Court respectively have held that in a complaint case exclusively triable by the Court of session the Magistrate should examine all the witnesses of the complainant before issuing process against the accused. In the decision Rosy and another (supra),.the apex Court further held that in such a case the Magistrate is required to conduct the enquiry himself and cannot direct investigation by police.

In the case at hand, the SDJM, Udala directed the OIC, Khunta Police Station u/s 156(3), Cr.P.C. to investigate into the case. As found from the petition u/s 482, Cr.P.C., the SDJM gave such direction without application of mind, i.e. without taking cognizance. Direction given to the police u/s 156(3), Cr.P.C. for investigation is quite different from the direction given u/s 202(1), Cr.P.C. The first is at pre-cognizance stage while the second at post-cognizance stage. A Magistrate can order investigation u/s 156(3), Cr.P.C. at the pre-coghizance stage. He cannot pass such order after taking cognizance. So the decisions cited by the learned counsel for the petitioner are not applicable to the present case. In the decision Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, it has been held that a Magistrate receiving complaint disclosing offence exclusively triable by the Court of session can direct investigation without taking cognizance.

Therefore, in view of this decision and the discussion as made above, I do not find any illegality or material irregularity in the order of the learned SDJM, Udala in directing the Officer-in-Charge, Khunta Police Station to take up investigation, warranting exercise of extra-ordinary power conferred u/s 482, Cr.P.C.

Accordingly the CRLMC1 is dismissed being devoid of merit.