Advocates:
['M/S SAMIR KU MISHRA', '', 'A KEJRIWAL', 'O P SAHU', 'M R DASH', 'S K SAMANTARAY', 'M/S S SWAIN', '', 'P DAS', 'S C DAS']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No.1793 of 2007

Sakira Bibi @ Khatun & 8 others.

….

Petitioners

M/s. Samir Kumar Mishra, M.R. Dash,

S.K. Samantaray, O.P. Sahu, A. Kejriwal, Advocates

-versus-

State of Orissa & another.

….

Opposite Parties

Addl. Standing Counsel – For State

M/s. S. Swain, P. Das, S.C. Das, Advocates – For O.P. No.2

CORAM:

JUSTICE S. PUJAHARI

Order

No.

ORDER

03.02.2022

24.

1.

This is an application filed under Section 482

of Cr.P.C. seeking for quashment of the order dated

07.07.2007 passed by the learned J.M.F.C., Soro in

Crl. Tr. (I.C.C.) No.44 of 2007 taking cognizance of the

offences under Sections 395 and 457/34 of I.P.C., so

also the entire proceeding, qua the petitioners.

2.

Heard the learned counsel for the petitioners

and the learned Addl. Standing counsel appearing for

the State. None appeared for the opposite party no.2-

complainant on call to participate in the hearing.

// 2 //

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3.

The brief reference may be made to the factual

aspects as follows:-

On the report of the present opposite party

no.2, there was registered Soro P.S. Case No.94 of

2006 corresponding to G.R. Case No.198 of 2006

against the present petitioners and seven co-accused

persons under Sections 457/395 of I.P.C. On

completion of investigation, however, police submitted

charge-sheet under Section 380 of IPC against the

present petitioner nos.1 and 2 on 13.12.2006,

eliminating the other accused persons from the

charge and pursuant to the same, the learned

J.M.F.C., Soro also recorded his opinion vide the

order dated 13.12.2006 that a prima-facie case under

Section 380 of IPC was well made out against the

petitioner nos.1 and 2 as charge-sheeted. At the same

time, however, the learned Magistrate issued notice to

the Informant to file his protest, if any, against the

charge-sheet / Final Form so submitted by the police.

Thereafter, the Informant-opposite party no.2 came

up with a protest petition which was registered as

// 3 //

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I.C.C. No.175 of 2006, and the learned Magistrate

vide the order dated 18.01.2007 directed the said

complaint to be tagged with the G.R. Case, to avoid

multiplicity of the proceeding. In the same order, he

further observed that the complainant can take

recourse of law under Section 319 of Cr.P.C. during

time of the trial. The matter, however, did not end

there. Subsequently, the Informant filed a separate

complaint which was registered as I.C.C. No.44 of

2007 and there upon the learned J.M.F.C. proceeded

under Chapter XV of Cr.P.C. and on the basis of the

statements recorded under Sections 200 and 202 of

Cr.P.C. he took cognizance of offences under Sections

395/457/34 of IPC against all the petitioners vide the

impugned order dated 07.07.2007.

4.

It is now the contention of the petitioners that

the faulty procedure adopted by the learned J.M.F.C.

has exposed the petitioner nos.1 and 2 to double

jeopardy, and that the rest of the petitioners have also

been subjected to gross prejudice, inasmuch as with

the materials on record, no criminality can be

// 4 //

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attributed to them. In course of the hearing, the

learned counsel for the petitioners submitted that the

petitioner no.2 being the daughter of the Informant

who was opposed to her marriage with the petitioner

no.1, false and vexatious criminal cases have been

filed by the Informant to wreck his vengeance. It is his

further

submission

that

the

learned

J.M.F.C.

committed illegality in passing the impugned order in

the face of his earlier observation vide the order dated

18.01.2007 in I.C.C. No.175 of 2006. According to

him, the impugned order being tantamount to a

review of the earlier order dated 18.01.2007 is not

permissible under law, and liable to be quashed.

5.

On the other hand, the le