DHARANIDHARA PATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner's challenge to legality of cognizance taken by learned Sub-Divisional Judicial Magistrate, Bolangir (in short, the SDJM) having been repelled by learned Sessions Judge, Bolangir. This application has been filed under Sec. 482 of the Code of Criminal Procedure, 1973 (in short, 'Cr. P.C.') for interference.

(2.) Background facts giving rise to the application as portrayed by the petitioner are as follows: First Information Report was lodged on 1.1.1990, by one B.K. Mohanty, Circle Inspector, Sadar, Bolangir alleging Commission of offences by petitioner punishable under Secs. 379 and 411 of the Indian Penal Code, 1860 (in short IPC). On the basis of that information P.S. Case No. 1/90 corresponding to G.R. Case No. 3/90 was registered. Allegation was that in course of search of petitioners house he was found to be in possession of precious stones weighing 7.41 Kgs. Petitioner could not produce any authority for such possession. After completion of investigation charge sheet was submitted. Learned SDJM by order dated 29.6.1990 took cognizance of offence punishable under Sec. 379, and in the alternative under Sec. 411, I.P.C. Petitioner questioned correctness of the order before learned Sessions Judge, Bolangir which was registered as Criminal Revision No. 103/5 of 1990-91. Learned AddI. Sessions Judge by order dated 15.1.1992 accepted prayer for revision, set aside the order dated 29.6.1990 taking cognizance of offences punishable under Secs. 379 and 411, I.P.C., but left it open to learned SDJM to pass necessary order about disposal of property if no complaint is filed within a reasonable period under provisions Of Orissa Minerals (Prevention of Theft, Smuggling and Other Unlawful Activities) Act, 1989 (in short, the Act) read with provisions of Cr. P.C. It was observed that there was no material to reveal that out of whose possession precious stones had been stolen to make out a case under Sec. 379, I.P.C. and there was no material to show that movable articles had been removed from out of possession of another. So far as applicability of Sec. 411 is concerned, it was observed that there was no prima facie material to show articles possessed by petitioner was stolen property, and there was also no material to show that articles were removed from possession of another person. In essence, it was concluded that there was no material to show that petitioner either committed theft or was in possession of stolen property. Stand of prosecution was that allegation levelled against petitioner made out an offence under the Act, and learned AddI. Sessions Judge accepted this plea and observed that material on record prima facie revealed that petitioner had committed on offence punishable under Sec. 12, read with Sec. 4 of the Act. But taking note of Sec. 14 of the Act which puts an embargo in taking cognizance on police report, and provides that Court can taken cognizance on the basis of complaint filed by police not below than the rank of Sub-Inspector or any person authorised in this behalf by the Government. Since report was filed by Sub-Inspector, cognizance could not have been taken in respect of offence punishable under the Act. In the aforesaid background, it was observed that Sub-Inspector would file a complaint in accordance with law within time limit. Petitioner submits that after having held that order taking cognizance was not legal, a direction should have been given for return of seized property to the petitioner, instead of directing further action.

(3.) Learned SDJM on receipt of prosecution report under Sec. 12 read with Sec. 4 of the Act registered a case numbered as U.C. No. 136 of 1992, took cognizance of offence punishable under Sec. 12 read with Sec. 4 of the Act by order dated4.6.1992. Reference was made to the earlier orders passed by learned SDJM and learned AddI. Sessions Judge. Direction was given to tag records of previous GR case to the case instituted on the basis of prosecution report. Petitioner questioned legality of said order before learned Sessions Judge stating that the Act itself had not come into existence when alleged offence took place it was stated that the Act was brought into force by State Government on 20.5.1990 under Notification published in Orissa Gazette Extraordinary No. 636 dated 16.5.1990, as required under Sec. 13 of the Act. Learned Sessions Judge did not consider this plea to be tenable and held those aspects could be considered at the time of framing of charge, and at the time of hearing of the case. Learned counsel for petitioner submits that when the Act itself was not in existence when the alleged occurrence took place, question of taking cognizance of offence punishable under a particular provision under the Act and to proceed against the petitioner is indefensible. Learned counsel for State on the other hand, submitted that aspects now highlighted by petitioner can be considered at the time of framing charge and during trial, as rightly observed by learned AddI. Sessions Judge.