MIHIR KUMAR PANDA Vs. BRAJENDRA KUMAR PANDA

JUDGEMENT

(1.) In this application under Section 482 the Code of Criminal Procedure, 1973 ( in short, 'the Code) petitioners pray to quash the order of the Sub-divisional Judicial Magistrate, Balasore passed on 12.11.1997 in I.C.C. No. 89 of 1996, a certified copy of which has been filed as Annexure-2.

(2.) Admittedly, the petitioners are four out of the five accused persons in I.C.C. No. 89 of 1996. The opposite party No. 1 is the complainant. On the basis of the said complaint as stated at the bar, inter alia, cognisance of the offence under Section 395 I.P.C. was taken and process was issued against the petitioners. After that, they approached the learned Magistrate to recall the order of cognisance on the ground of absence of a prima facie case and on the assertion that because of the family dispute a false case has been foisted against them. In that context petitioner relied on the final report submitted in G.R.Case No. 517 of 1994 and documents relating to pendency of a civil suit between the parties. The opposite party No. 1 denied to the aforesaid contention of falsity in the allegation and contested that application. In the process of hearing in the Court below, petitioners filed certified copy of some depositions in other proceedings to show contradictions relating to the statement in the complaint. Learned Magistrate rejected that contention on the ground that the statement recorded in the enquiry under Section 202 of the Code is to be considered on its face value to find out if a prima facie case is made out. He further held that pendency of the litigation's between the parties does not give rise to the unfailing conclusion that the complaint is based on false or concocted allegations. He also held that the statement of the witnesses prima facie makes out a case under sections 341/395/34, I.P.C. and that order of cognisance is not liable to be recalled. Accordingly, he rejected that application. It is pertinent to note here that at that stage petitioners did not raise objection relating to non-examination of one of the witnesses, namely, Omkarnath Panda, who is one of the six witnesses cited in the complaint and alleging absence of proper enquiry in conformity with the proviso to Sub-section (2) of Section 202 of the Code.

(3.) While arguing in this Court, petitioners have challenged the impugned order and the order of cognisance on the aforesaid grounds of frivolous litigation because of family dispute and order of issue of process being bad due to non-following the mandatory provision in the Proviso to Sub-section (2) of Section 202 of the Code.