PRAHALLAD MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Criminal Revision under Section 401 of the Criminal Procedure Code (hereinafter referred to as the 'Code') has been filed with a prayer to set aside the order dated 18.4.2001 passed by the S.D.J.M., Jagatsinghpur, in Criminal Misc. Case No. 79 of 2000, arising out of G.R.Case No. 151 of 2000 rejecting the application of the petitioner filed under Section 457 of the Code for passing appropriate order for production and disposal of the properties seized with the aforesaid G.R. Case after obtaining show cause from the opposite party -Investigating Officer.

(2.) THE brief facts leading to this revision application, as it tends to reveal, are that a first information report was lodged by one Kalyanilata Swain, the daughter of the present petitioner - Prahallad Mohanty alleging demand of dowry and torture against her husband -Anam Charan Swain and in -laws. The aforesaid F.I.R. was registered as Jagatsinghpur P.S. Case No. 46 of 2000 corresponding to G.R. Case No. 151 of 2000 under Section 498/(A)/34 I.P.C. and Section 4 of the Dowry Prohibition Act and the present opposite party No. 2, who was the A.S.I. of Police of Krushnananapur Out -post under Tirtol P.S., was directed to investigate into the case, During the course of investigation, it is alleged that opposite party No. 2 created a false seizure list and a Zimanama by taking signatures from the petitioner and his daughter. The petitioner filed an application before the S.D.J.M., Jagatsinghpur, under Section 457 of the Code, which was registered as Crl. Misc. Case No. 79 of 2000, detailing the circumstances under which the petitioner on 4.3.2000 accompanied the opposite party No. 2 in the police jeep to village Praharajpur and reached at the in -laws house of his daughter at about 9.30 A.M. and returned back to the police station as the accused persons were not found there. On arrival at the police station, opposite party No. 2 told the petitioner to sign on four papers in token of proof that the petitioner had accompanied the I.O. to the spot on 4.3.2000 and accordingly the petitioner signed the papers after the P.S. case number was mentioned at the top. Opp.party No. 2 then told the petitioner that his personal presence was not required any manner. The petitioner thereafter left for Rourkela and later on he came to know that his son - in -law was arrested and the matter between his son -in -law and his daughter has been amicably settled in the Court of the Addl. District Judge, Jagatsinghpur, on the basis of a joint compromise petition. So far as accused Pabitra, the elder brother of accused - Anama Ch. Swain is concerned, negotiation was still going on for an amicable settlement, but ultimately in the last week of May 2000, Pabitra declared that they would not take back the petitioner's daughter and wanted to proceed with the litigation in Court. It was further alleged that opposite party No. 2 manufactured a false seizure list showing the date and the time of seizure as 4.3.2000 at 7 A.M., obtaining the signature of the son -in -law of the petitioner as occupant, who was available to the I.O. only on 7.3.2000, showing seizure of properties, which were not mentioned in F.I.R. nor its specifications were given and without making any production before Court. It was further alleged that a false zimanama had been manufactured by opposite party No. 2 out of the papers given to him at his instance and one Prasanna Swain, a cousin of the accused had been selected as a Zima witness, although there was no delivery of alleged zima articles. The sum and substance of the allegations of the petitioner is that the seized properties were absolutely not seized by opposite party No. 2 but false seizure list and Zimanama were prepared for which the petitioner in the petition filed under Section 457, Cr.P.C. before the S.D.J.M., Jagatsinghpur (Annexure -1) prayed for production and disposal of properties. The S.D.'J.M. by his order dated 18.4.2001 (Annexure -2) has rejected the said application on disbelieving the allegation of the present petitioner that he was not given the Zima of the properties but the said Zimanama was created by taking his signatures on a blank paper for which there was no occasion to direct opposite party No. 2 to produce the seized materials in the Court.

(3.) CONSIDERING the allegation of the petitioner that the manipulation was done by opp. party No. 2 -A.S.I. this Court by its order dated 16.5.2002 called for the L.C.R. in the concerned G.R. Case from the Court of the S.D.J.M., Jagatsinghpur. It was also found from the record that there were certain over writings in the case diary with the signatures of Sri Khillar appearing below such over writings. The A.S.I. of Police, who was present in Court, also admitted that the signature below the over writings made in the G.R. Case record belongs to him. In order to know the truth, this Court by its order dated 18.6.2002 directed the District Judge, Cuttack to cause an enquiry into the matter and report to this Court whether the timings indicated in the seizure list has been overwritten / tampered with after issuance of the certified copy to the petitioner. In the said order, liberty was granted to the A.S.I. to remain present during the course of enquiry by the District Judge. Ultimately the A.S.I. appeared before this Court and he prayed to engage a counsel to defend him in the case as learned Addl.Government Advocate submitted that he had no instruction from opposite party No. 2.