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2016 Supreme(Ori) 100
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Chiranjib Biswal - Petitioner
Versus
Bishnu Charan Das & another - Opposite Parties
CRLMC No. 4433 of 2015
Decided On : 22-03-2016
For the Petitioner: Mrs. Rajdipa Behura, Sangram Kumar Senapati, Dipanshu Das, S.K. Das, B.K. Das
For the Opposite Parties : Sri Asok Mohanty, Mr. Devashis Panda, A.K. Panda
Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec.482 - Cognizance of offence u/s.125-A of the Representation of the People Act, 1951 - Quashing of - Since at a stage of issuance of process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is not required to enter into a detailed disussion of the merits or de-merits of the case and he is to find out only a prima-facie case, it cannot be said that any illegality has been committed by the learned Magistrate in entertaining the complaint filed by the Opp. Party No.1 or taking cognizance of offence u/s. 125-A of 1951 Act or issuance of process against the petitioner - High Court not inclined to invoke the inherent power u/s.482 Cr.P.C.
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 190 - Duty of the Magistrate to find out if the complaint at all constitute any offence or not and if so, he is at liberty to take cognizanceu/s.190 (1) (a) Cr.P.C. - The words "may take cognizance" which appears in Sub-Section (1) of Section 190 Cr.P.C. cannot be equated with "must take cognizance"- The word "may" is not a word of compulsion - It is an enabling word and it only confers a capacity, power or authority and implies discretion - Further stated.
The expression "cognizance" connotes to take notice of judicially. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. It is nothing but taking of judicial notice on a cause or matter presented before it so as to decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially. Criminal law cannot be set into motion as a matter of course. Cognizance is taken of an offence and not of the offender. At this stage, the Magistrate has to satisfy whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial stage and not at the stage of enquiry. The Court is not required to go into a detail discussion of the merits or demerits of the case so as to find out if the allegations and the charges are true or not. Adequacy of the evidence will not be seen by the Court at the stage of taking cognizance. At the time of taking cognizance and issuing process on a complaint, the accused has got no locus standi but the Court should keep in mind that judicial process is not utilized as an instrument of opposition or needless harassment.
3. CRIMINAL PROCEDUE CODE, 1973 - Sec. 482- While making a prayer for quashing an order taking cognizance or quashing the entire criminal proceeding, an accused cannot be permitted to use the material which would be available to him only as his defence - Trial Court should be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence - While invoking inherent power under the Section to quash a criminal proceeding, the High Court cannot look into any document relied on by the accused which would require proof in accordance with law and may be subjected to rebuttal evidence - Further stated.
The Court has to strictly confine itself to the allegation made in the First Information Report and charge sheet or the complaint petition and the statements collected under Sections 200 and 202 Cr.P.C. A mini trial at that stage is impermissible. The acceptance of the documents filed by the defence or consideration of defence plea by the High Court under Section 482 Cr.P.C. at the stage of cognizance would certainly open flood gate for mini trial and should be discouraged as it is not neither proper nor legal.
JUDGMENT :
S.K. Sahoo, J.
Who says politicians only fight amongst themselves at the time of election? Politics and conflicts are the two sides of the same coin. Political conflicts can go to any extent and it is not merely the difference of opinion but sometimes it is full of mudslinging and character assassination. Lack of political ideologies appears to be a common feature in such never ending conflicts. Politics without principle and politicians without character are the most damaging elements of the social order.
The petitioner Chiranjib Biswal even after being elected as a member of Legislative Assembly from 104Jagatsinghpur Assembly Constituency on the ticket of National Congress Party is fighting the legal battle against his rival candidate Bishnu Charan Das of Biju Janata Dal. While describing himself in the petition filed before this Court to have hailed from a disciplined, educated and respectable family, the petitioner in a wrong tone of voice has described his opponent as a notorious and destructive element having no regard for law and administration of justice.
2. The petitioner has filed this application under section 482 of Code of Criminal Procedure, 1973 with a prayer to quash the proceeding in I.C.C. Case 565 of 2014 pending in the Court of learned S.D.J.M., Jagatsinghpur. The learned S.D.J.M., Jagatsinghpur vide order dated 17.9.2014 has taken cognizance of offence under section 125A of the Representation of the People Act, 1951 (hereafter the ‘1951 Act’) and issued process against the petitioner.
3. The opposite party no.1 Bishnu Charan Das filed a complaint petition in the Court of learned S.D.J.M, Jagatsinghpur on 27.8.2014 against the petitioner stating therein that he was a candidate of Biju Janata Dal for the 104-Jagatsinghpur Assembly Constituency along with the petitioner and others for the election which was held on 17.4.2014. As per the notification published under the provisions of 1951 Act by the competent authority for holding general election in the State of Odisha for the members of State Assembly, the opposite party no.1, the petitioner filed their respective nomination papers along with affidavits for contesting the election before the Returning Officer. There were altogether nine numbers of candidates in the election fray. On 24.3.2014 the petitioner delivered his nomination papers along with affidavit disclosing his assets and liabilities as per sections 33 and 33-A of 1951 Act and Rule 4-A of the Conduct of Elections Rules, 1961 (hereafter ‘1961 Rules’) in Form No.26. The nomination paper and the affidavit filed by the petitioner were accepted by the Returning Officer and the petitioner contested the election with the opposite party No.1. It is the further case of the opposite party no.1 that after verification of the affidavit filed by the petitioner as well as the documents, displayed in the internet, the opposite party no.1 came to know that the petitioner had intentionally concealed some of his valuable properties as well as that of his spouse in the affidavit. The opposite party no.1 instructed his election agent Mr. Dolagobinda Das to send application to the Election Commission of India disclosing concealment of material and substantial information by the petitioner in his affidavit which was accordingly sent on 14.7.2014. It is stated that the office of Election Commission of India intimated through letter to file case in the competent Court by the aggrieved person.
It is the further case of the opposite party no.1 that the petitioner with mala fide intention concealed certain information in the affidavit relating to his immovable properties.
It is stated that the Consolidation Plot No.806 measuring an area of Ac 0.40 dec. under Chaka No.131 which is agricultural land and also non-consolidation Plot No.288 measuring an area of Ac. 0.04 dec. (homestead land), total measuring Ac. 0.44 dec. of land under Consolidation Khata No.7 situated in village-Tulanga, P.S. & Tahasil-Tirtol, Dist-Jagats
