DILLIP BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order of the learned Magistrate dated 17 -2 -1990 taking cognizance of the offence Under Section 436/34, IPC and issuing summons to the accused persons is being challenged in this application invoking the jurisdiction of this Court Under Section 482 of the Code of Criminal Procedure.

(2.) THE informant gave a written report on 22 -12 -1989 at 7 p.m. which was treated as FIR alleging therein that the petitioners came in a Car and threatened him to murder at the point of a knife and thereafter set fire to his stall and then left the place with the Car. On the basis of the said FIR police registered a case and started investigation. On completion of investigation final report was submitted on 15 -12 -1989. The Magistrate after receiving the final report passed order on 20 -1 -1990 to issue notice to the informant to file any protest petition. Thereafter the case records were produced on 17 -2 -1990. Even though no protest petition had been filed by the informant, the Magistrate took cognizance of the offence Under Section 436/34, IPC and directed issuance of summons to the accused persons and hence the accused persons have approached this Court.

(3.) MR . Bijan Ray, the learned counsel appearing for the petitioners raises three contentions in assailing the order of cognizance and prays for quashing of the same. (i) When the police submits final form Under Section 173, Cr.PC and no protest petition is filed by the informant, the Magistrate has no jurisdiction to take cognizance of the offence suo motu and in this view of the matter, the impugned order of the Magistrate is invalid. (ii) Assuming the Magistrate has the jurisdiction to take cognizance on the materials, then the Magistrate must be satisfied about the commission of offence prima facie before taking cognizance and the order must indicate about such satisfaction of the Magistrate. The impugned order does not satisfy the aforesaid test; (iii) The entire materials which were produced before the Magi strate collected in course of investigation by the police did not constitute an offence in question and, therefore, the order of cognizance is bad in law. 3. The learned Public Prosecutor, on the other hand, contends that even if no protest petition is filed and police submits a final form still the Magistrate can disagree with the view of the police and take cognizance if he is satisfied that the offence has been committed Under Section 190(l)(c) of the Code of Criminal Procedure. The learned Public Prosecutor further urges that the materials on record did establish the commission of offence and, therefore, no case for quashing the cognizance has been made out.