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High Court Of Orissa
ARIJIT PASAYAT
DAMODAR MISHRA - Appellant
Versus
STATE OF ORISSA - Respondent
Criminal Revision 303 Of 1997
Decided On : 02/17/1999
{'KEYWORD': 'COGNIZANCE', 'SUBJECT': 'CRIMINAL PROCEDURE', 'ACT SECTION LIST': ['SECTION 190', 'SECTION 162', 'SECTION 2(H)', 'SECTION 154', 'SECTION 155', 'SECTION 176', 'SECTION 202', 'SECTION 150', 'SECTION 173(2)(I)'], 'SUMMARY': 'The court discussed the legal framework for taking cognizance of offenses under the Code of Criminal Procedure, 1973. It clarified that taking cognizance is a threshold act where the magistrate takes judicial notice of an offense and that the magistrate has no discretion in taking cognizance when a police report is submitted under Section 173(2)(i) of the Code. The court also explained the distinction between taking cognizance and the subsequent trial, emphasizing that at the stage of taking cognizance, the magistrate is not required to evaluate whether there is material against a particular person. Additionally, the court addressed the applicability of Section 162 of the Code, which prohibits the use of statements made to a police officer during an investigation, and held that it does not apply to statements made before the investigation begins.'}
Fact of the Case:
The case involved two applications, one filed by the accused challenging the order of the magistrate taking cognizance of offenses under Sections 498-A/420 read with Section 34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, and the other filed by the informant questioning the magistrate's order recalling the earlier order of cognizance. The accused argued that the magistrate erred in taking cognizance based on the police report and that the FIR was not maintainable under Section 162 of the Code of Criminal Procedure.
Finding of the Court:
The court held that the magistrate did not err in taking cognizance of the offenses based on the police report and that the FIR was maintainable. It found that there were materials to proceed against the accused persons for the alleged offenses and that the allegations made in the complaint and the statements of witnesses were not patently absurd or inherently improbable. The court also held that Section 162 of the Code did not apply to the statements made to the police officer before the investigation began.
Issues: ['Whether the magistrate erred in taking cognizance of the offenses based on the police report?', 'Whether the FIR was maintainable under Section 162 of the Code of Criminal Procedure?', 'Whether there were materials to proceed against the accused persons for the alleged offenses?']
Ratio Decidendi: The court relied on various provisions of the Code of Criminal Procedure, including Sections 190, 162, 2(h), 154, 155, 176, 202, 150, and 173(2)(i), to arrive at its decision. It held that the magistrate has no discretion in taking cognizance when a police report is submitted under Section 173(2)(i) of the Code and that taking cognizance is a threshold act where the magistrate takes judicial notice of an offense. The court also explained that at the stage of taking cognizance, the magistrate is not required to evaluate whether there is material against a particular person. Additionally, the court held that Section 162 of the Code does not apply to statements made to a police officer before the investigation begins.
Final Decision: The court dismissed both the criminal revisions and the criminal miscellaneous case, upholding the magistrate's order taking cognizance of the offenses.
ARIJIT PASAYAT, J.
( 1 ) THESE two applications are inter-linked and are disposed of by this common order.
( 2 ) CRIMINAL Revision No. 103 of 1997 has been filed by Damodar Mishra questioning correctness of order dated 13-6-1997 passed by the learned Sub-Divisional Judicial Magistrate, Puri (in short, 'sdjm') in C. R. case No. 97 of 1996 corresponding to Puri Town P. B. case No. 26 of 1996 recalling the order relating to cognizance of offences punishable under Ss. 406/506 of the Indian Penal Code, 1860 (in short, 'ipc') allegedly committed by opposite party Nos. 2 to 5, and coming to the conclusion that in respect of Dhadi Rana (opposite party No. 6) there was no material to proceed for the alleged commission of offence punishable under S. 498-A/506, IPC. In Criminal Misc. Case No. 2281 of 1997 the accused persons have questioned correctness of said order. After cognizance, process has been issued to accused persons for alleged commission of offences punishable under Ss. 498-A/420 read with S. 34, IPC, and under S. 4 of the Dowry Prohibition Act, 1961 (in short, the 'dowry Act' ). Prayer is made to quash the prosecution and cognizance dated 13-6-1997.
( 3 ) THE background in which the impugned order came to be passed is as follows :damodar's daughter Sunanda was married to Umakanta, the third son of accused Trilochan and Shantilata on 23-1-1995. Accused Prasanna Kumar Mishra was the mediator of the marriage, Certain articles were given as dowry on the demand made by the groom and his relatives. It was not known to the bride's family that Umakanta was a diseased person suffering from Portal hypertension and damaged lever and kidney and his spleen had been removed by operation in All India Institute of Medical Sciences, New Delhi on 12-1-1988. After 20 days of marriage, Umakanta became unconscious and in coma stage was admitted in the S. C. B. Medical College Hospital, Cuttack on 23-2-1995. Thereafter he continued to be treated in the said hospital for certain periods and ultimately breathed his last on 3-11-1995 due to hepatic coma. Sunanda was ill-treated by the accused persons, was subjected to various types of physical and mental cruelties and demand for dowry continued. With the dowry articles received from the bride's family, accused persons got Dipti, daughter of accused Trilochan, married on 20-4-1995. By playing a dirty trick and in a deceitful manner accused persons managed to get Umakanta married to Sunanda. After death of Umakanta, tortures were continued being afraid that Sunanda may take recourse to Court of law, object was to drive sense of fear to her heart. She was forced to sign on five blank papers. Lot of valuables were taken by force from her. There was even an attempt to burn her by pouring kerosene and leakage of gas. However, she was rescued by her father on 6-1-1995. The accused persons did not return the articles they had taken and promised to give them back on 26-11-1995 at Bhubaneswar. But they did not keep the promise. On 10-12-1995, accused Laxmi-kanta was found out at Cuttack, and he promised to return all the articles to Sunanda on 24-12-1995. When she was accompanied by her father, elder brother and others went to his place of stay at Cuttack on 24-12-1996, there was physical assault on her for which written report was lodged at Cantonment Police Station and Station Diary Entry No. 864 dated 24-12-1995 was recorded. Finding no other alternative, an FIR was lodged in Puri Town P. S. on 17-1-1996 by Damodar Misra which was registered in respect of offences alleged to have been convicted under Ss. 498-A/420 read with S. 34, IPC and S. 4 of the Dowry Act. It was registered as P. S. case No. 26 of 1996 corresponding to G. R. Case No. 97 of 1996. In the said case charge-sheet was submitted by the Human Rights Protection Cell, Orissa. When there was delay in making the search and seizure of the concerned articles, the Human Rights Protection Cell, Orissa, transferred the aforesaid case from Puri Town
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