THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.5384 of 2023 (In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973)

Pilata Tandi & another ……. Petitioners -Versus-

State of Odisha & another ……. Opposite Parties For the Petitioners : Mr. Jiban Ranjan Dash, Advocate For the Opp. Parties : Mr. Debasish Biswal Additional Standing Counsel (For the Opp. Party No.1)

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 26.09.2024 : Date of Judgment: 29.01.2025 S.S. Mishra, J. By invoking the inherent jurisdiction of this Court under Section

482 of Cr.P.C., the petitioners have assailed the order dated 28.08.2023 passed by the learned S.D.J.M., Dharamgarh in 1.C.C. No.06 of 2023, whereby the cognizance of the offence punishable under Section 436 of the IPC has been taken against the petitioners.

2. The present case is pertaining to an incident happened on 22.05.2016. On the next day, i.e., on 23.05.2016, the F.I.R. being Golamunda P.S.

Case No.49 of 2016 was registered.

3. The allegation in the F.I.R. in brief was that on 22.05.2016, at about 6 A.M., while the complainant Santosh Hati had been to the market, at that time, the accused persons namely, Pilata Tandi, Bideshi Tandi (the petitioners) and Ananda Sunani (dead) set fire to the residential house of the complainant. It was alleged that the same incident was witnessed by the wife of the complainant Baidei Hati, one Kurukhetra Bag and Sadananda Bag. It is further alleged that, even on the protest of the witnesses, the petitioners went ahead and set the house on fire and also threatened them. In the afternoon, when the complainant returned home from the market, he heard the incident from his wife and registered the F.I.R. for the alleged commission of the offence punishable under Section 436 of the IPC.

4. The police undertook the investigation and on 30.06.2016, filed the Final Form, inter alia, arriving at the conclusion as under:

“During course of investigation I visited the spot, examined the complt and witnesses and recorded their statements u/s 161 Cr.P.C., seized 2 nos. of half burnt wooden pieces from the spot. Engaged reliable spy, contacted the near by people and the villagers but none could give any clue towards detection of the case. The complainant has suspected Pilata Tandi, Bideshi Tandi and Ananda Sunani in this case but as per the statement of witnesses there is no evidence against Pilata Tandi, Bideshi Tandi and Ananda Sunani in this case. Pilata Tandi along with others have extinguished the fire. Bideshi Tandi and Ananda Sunani were not available at the spot at the time of occurrence. None have seen them near the spot. All possible steps were taken to work out clue in this case but no clue could be obtained. Submitted compliance to the instruction imparted in the S. Note of SDPO Dharamgarh and received order from S.P. Kalahandi to return the case as FRT no clue u/s 436 IPC vide message no.1419/DCRB DR dt. 30.6.16.”

5. Aggrieved by the investigation, the complainant filed the protest petition, which was registered as I.C.C. No.6 of 2023. The complainant recorded his initial pre-summoning statement and the statement of his wife under Section 202 of the Cr. P.C.

6. The learned trial Court, vide impugned order dated 28.08.2023 has taken the cognizance of the offence under Section 436 of the IPC against the petitioners. The petitioners have challenged the said order in the present proceeding.

7. Heard Mr. J.R. Dash, learned counsel for the petitioners and Mr. D. Biswal, learned Additional Standing Counsel for the opposite party No.1-State.

8. Mr. Dash, learned counsel for the petitioners has taken me to the statements of the witnesses recorded under Section 161 of the Cr. P.C. by the police and also the pre-summoning evidence adduced by the complainant in the protest petition. Mr. Dash, learned counsel has contended that the Court below has taken the cognizance of the offence without appreciating the fact that the complainant has