GAGAN BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner has filed this petition under S. 482 of the Code of Criminal Procedure, 1973 (in short, the 'Code') requesting the Court to quash the proceeding initiated against him, i.e. G.R. Case No. 96 of 1997 pending on the file of learned J.M.F.C., Ranpur arising out of Ranpur P.S. Case No. 98 of 1997 for alleged commission of offence punishable under S. 376, I.P.C. by him.

(2.) According to the petitioner, on 29-8-1997 the informant lodged a complaint in Ranpur Police Station which was registered as Ranpur P.C. Case No. 98 of 1997 alleging that on 20-4-1997 at about 7 p.m. the petitioner had sexual intercourse with her against her consent. Her father though lodged the F.I.R. on the next day same was not accepted. Accordingly, the informant had to lodge a written report on 29-8-1997. The said report was registered as Ranpur P.S. Case No. 98 of 1997 dated 3-9-1997. Later on it was registered as G.R. Case No. 96 of 1997. Pursuant to the F.I.R. lodged, the I.O. enquired into the matter, examined the witnesses and after going through the evidence collected found that no prima facie case was made out. As such the I.O. submitted final form on 21-9-1998. The said final form was accepted by the learned Magistrate on 13-10-1998. The learned Magistrate issued summons to the informant on 10-12-1998. The case was again adjourned to 2-1-1999. On 28-1-1999 the informant appeared and lodged protest petition requesting the Court to take cognizance. Taking into consideration several adjournments, on 22-2-1999 the trial Court took cognizance against the petitioner for commission of offence punishable under S. 376, I.P.C. Grounds taken by the petitioner for challenging the order of cognizance are as follows : (i) Whether the procedures adopted by the learned J.M.F.C., Ranpur i.e., after submission of the final form by the Police and thereafter acceptance of the protest petition of the informant and thereafter continuance of the G.R. case can be sustainable in the eye of law. (ii) Whether the tral Court is justified in proceeding with the G.R. case particularly when the learned trial Court did not take cognizance on the basis of the final form submitted by the Police and moreover, once the protest petition is filed and the same is accepted, without taking recourse of the provision contained in Chapter XV of the Code of Criminal Procedure and continuance of the G.R. case is bad in law? (iii) Whether the learned trial Court is justified in considering the materials available in the case diary, particularly when the Court did not take any cognizance on the same inasmuch as once the protest petition is accepted, the Court ought to have proceeded by treating the same as a complaint case and thereafter to follow the procedures laid down in the Code of Criminal Procedure. (iv) The uncontroverted allegations made in the protest petition coupled with the materials in the case diary and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the petitioner.

(3.) Learned counsel appearing on behalf of the petitioner submitted that when the final form was filed there was no need for the trial Court to accept the protest petition and then to take cognizance. The learned Magistrate before taking cognizance should have applied his mind to see whether a prima facie case has been made out and the taking of cognizance is illegal. It is further submitted that the entire proceedings are to be quashed by exercising power under S. 482 of the Code.