Advocates:
['M/S N LENKA', '', 'N BEHERA', 'M R MOHAPATRA', 'L SAHOO', 'H K MOHANTA', 'M/S SANJAY RATH', 'B BHADRA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLMC No.1543 of 2012

Damodar Mohanty

&.

Petitioner

versus-

State of Orissa and another

&.

Opposite Parties

CORAM: JUSTICE S. PUJAHARI

Order

No.

ORDER

25.04.2022

04.

1.

This matter is taken up through hybrid mode.

2.

This application under Section 482 of Cr.P.C. has been

filed by the Petitioner with a prayer to quash the order of

cognizance dated 28^th March, 2005 passed by the learned

J.M.F.C., Kendrapara in G.R. Case No.26 of 2005.

3.

Heard the learned counsel for the Petitioner and the

learned counsel for the State-Opposite Party No.1. No one

appears on behalf of the Opposite Party No.2-Informant.

4.

The grievance of the Petitioner in this case is that

though he was not charge sheeted by the police, but the learned

Magistrate while taking cognizance of the offences under

Sections 341, 294 and 506 of the I.P.C. has arrayed him as an

accused. Since the Petitioner was not charge sheeted by the

police, before the trial or enquiry, the court has no jurisdiction

to array him as an accused. It is only when during trial or

enquiry evidence comes out incriminating to him, the court can

array an accused left out in the police report.

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5.

However, learned counsel for the State has defended the

order of the trial court and submitted that it is well within the

jurisdiction of the learned Magistrate while taking cognizance

of certain offences, to proceed against the left out accused also

while ascertaining about the person involved in the offence.

6.

In the case of Abhinandan Jha and others v. Dinesh

Mishra, reported in AIR 1968 SC 117, the Apex Court at

paragraph-17 have held as follows:-

<17. We have to approach the question, arising for

consideration in this case, in the light of the

circumstances pointed out above. We have already

referred to the scheme of Chapter XIV, as well as the

observations of this Court in Rishbud and Inder Singh's

Case AIR SC 196 that the formation of the opinion as to

whether or not there is a case to place the accused on

trial before a Magistrate, is 'left to the officer in-charge

of the police station. There is no express power, so far

as we can see, which gives jurisdiction to pass an order

of the nature under attack nor can any such powers be

implied. There is certainly no obligation, on the

Magistrate, to accept the report, if he does not agree

with the opinion formed by the police. Under those

circumstances, if he still suspects that an offence has

been committed, he is entitled, notwithstanding the

opinion of tile police, to take cognizance, under Section

190(1)(c) of the Code. That provision in our opinion, is

obviously intended to secure that offences may not go

unpunished and justice may be invoked even where

persons individually aggrieved are unwilling or unable

to prosecute, or the police, either wantonly or through

bona fide error, fail to submit a report, setting out the

facts constituting the offence. Therefore, a very wide

power is conferred on the Magistrate to take

cognizance of an offence, not only when he receives

information about the commission of an offence from a

third person, but also where he has knowledge or even

suspicion that the offence has been committed. It is

open to the Magistrate to take cognizance of the

offence, under Section 190(1)(c), on the ground that,

after having due regard to the final report and the

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police records placed before him, he has reason to

suspect that an offence has been committed. Therefore,

these circumstances will also clearly negative the

power of a Magistrate to call for a charge-sheet from

the police, when they have submitted a final report. The

entire scheme of Chapter XIV clearly indicates that the

formation of the opinion, as to whether or not there is a

case to place the accused for trial