GOPAL CH PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) This CRLMC arises out of a petition filed under Section 482 of Cr.P.C. challenging the order dated 14.2.2003 and 21.4.2005 passed in I.C. case No.73 of 2003 by the learned J.M.F.C., Narsinghpur wherein in the first order he took cognizance of the offence under Sections 294/354/323/379/ 506/448/34 I.P.C. read with Section 3 of the S.C. and S.T. (P. A.) Act against the petitioners, and in the second order rejected the petition under Section 210 (1) of Cr.P.C. wherein the petitioners had prayed to call for a report from the O.I.C. of Kanpur P.S. in G.R. case No. 143 of 2003 and issued N.B.W. of arrest against the accused-petitioner No. 1.

(2.) Bereft of unnecessary details the facts leading to filing of this CRLMC is that Santilata Sethy, Opp. party No. 2 filed the aforesaid complaint case before the J.M.F.C., Narasinghpur on the allegation that on 8.9.2003 at about 7 P.M. the petitioners forcibly put a cabin on the land belonging to her. As the brother of the Complainant protested it the petitioners assaulted/him. They also assaulted the complainant and her sister Kuni Sethy and abused them in filthy language calling their Caste name 'Dhoba' when they came to the rescue of their brother. It is further alleged that accused petitioner No. 1 and petitioner no. 2 snatched away a necklace weighing one Bhari from Kuni Sethy. After going through the complaint petition, initial statement of the complainant and the evidence of witnesses, the Magistrate took cognizance of the aforesaid offences as mentioned earlier. On 15.4.2005 petitioner No. 1 filed a petition under Section 210 (1) Cr.P.C. with a prayer to call for a report from the O.I.C., Kanpur P.S. and stay the further proceeding in the complaint case on the ground that for the self-same occurrence the brother of the complainant lodged a report on 16.9.2003 before the O.I.C. of Kanpur P.S. giving rise G.R. case No. 46 of 2003. But, the learned trial Court rejected the petition refusing to call for a report from the O.I.C. concerned on the ground that the petitioners filed a Xerox copy of the F.I. R. instead of filing a certified copy thereof and issued N.B.W. of arrest against accused-petitioner No. 1. Being aggrieved with the said orders the petitioners preferred this Criminal Misc. case.

(3.) Learned counsel for the petitioners submitted that the petitioners apprehending their arrest in G.R. case No. 146 of 2003 applied for pre-arrest bail before this Court vide BLAPL No. 8100 of 2003 wherein they were directed to be released on bail on surrendering before the Court below. Accordingly, they surrendered before the trial Court within the time stipulated and were enlarged on bail. So the order of taking cognizance in the complaint case should be quashed. Cognizance of the aforesaid offences was taken on 14.2.2005 and the petition under Section 210(1) Cr.P.C. was filed on 15.4.2005. i.e. much after the order of taking cognizance. The cognizance order cannot be quashed only because a G.R. case is pending against the petitioners on the self-same accusation. As per Section 210(1) Cr.P.C. if it is made known to the Magistrate that a G.R. case is pending on the self-same accusation, he shall call for a report from the police officer concerned and stay further proceeding of the complaint case till the report is received. In the present case as mentioned earlier, the petitioners filed a petition to call for a report from the police officer concerned on the ground that a G.R. case is pending on the same allegation as made in the complaint case. They also filed the Xerox copy of the F.I.R. of the G.R. case but the trial Court turned down the petition on the ground that certified copy of the G.R. case is not filed. When pendency of the G.R. case was brought to the notice of the learned trial Court it was its duty to call for a report. Filing of certified copy of the F.I.R. is not pre-requisite for calling for such a report; so the order refusing to call for a report from the police officer concerned cannot stand.