INDRAJEET ROY Vs. REPUBLIC OF INDIA

JUDGEMENT

(1.) THIS Criminal Revision has been filed by the accused in Sessions Trial No. 5 of 1998 of the Court of Assistant Sessions Judge -cum -C.J.M., Khurda at Bhubaneswar (in short, ' A.S.J.') with the following prayer. 'PRAYER

(2.) A brief sketch of the facts and relevant circumstances and litigations are noted herewith for the sake of reference. The informant -prosecutrix Smt. Anjana Mishra lodged a written complaint against her husband Sri Subash Chandra Mishra and some other in -laws alleging therein demand of dowry, ill -treatment and cruelty including attempt to murder. On the basis of that written report (F.I.R.) on 29.4.1997 Bidanasi P.S. Case No, 64 of 1997 under Sections 498A/307/34, IPC was registered. During the course of investigation of that case Sri Subash Chandra Mihra and his elder brother's wife Smt. Rajalaxmi Mishra were arrested. They filed separate writ applications, inter alia, complaining against police atrocities and vindictive investigation. Prayer was also made for directing the Central Bureau of Investigation (in short, 'C.B.I.') to investigate into the case instead of the State Police. At the relevant time the present petitioner was functioning as the Advocate General of the State and it is stated that he came in contact with the prosecutrix during that period and that by then prosecutrix was staying in a destitutes' home at Cuttack known as 'Basundhara'. It is alleged that on 11.7.1997 which is the date of occurrence so far as the present case is concerned and which was a local holiday at Cuttack town, being asked by the petitioner the prosecutrix being accompanied by one social worker of Basundhara, namely, Miss Dolly alias Sanghamitra Das went to the official residence of the petitioner. It is alleged that Miss Dolly remained in the drawing room whereas petitioner took the prosecutrix inside the house for taking lunch. It is further alleged that at the time of taking lunch petitioner sympathised with the prosecutrix for her suffering and after the lunch took her to his bed room equipped with running air -conditioner machine on the pretext of the availability of the phone in that room. It is further alleged that from that bed room petitioner talked with father of the prosecutrix over phone who is staying at Bhubaneswar and thereafter in the process of making conversation with the prosecutrix he outraged her modesty and made attempt for committing sexual intercourse and that the prosecutrix not only resisted but could escape from the clutches and came out upto the drawing room. It is further alleged that simultaneously petitioner also entered into the drawing room and cautioned her not to disclose the incident to anybody. On 12.7.1997, however, the Secretary of the Basundhara, the D.I.G. of Police S. N. Swain and some other witnesses came to know about the incident on being told by the prosecutrix. On the advice of Sri Swain, on 14.7.1997 she met the Chief Minister of the State and submitted a written complaint and on 19.7.1.997 she filed the F.I.R. (Annexure -1) and the Cantonment P.S.Case No. 67 of 1997 under Sections 354 and 376/511, IPC was registered. The incident was flashed in the newspapers and several writ petitions were registered at the instance of the prosecutrix and other people who had filed the P.I.L.. In those writ petitions, inter alia, demand was made for investigation of the case by the C.B.I. on the allegation of partiality of the D.I.G. of Police Sri Swain in favour of the petitioner resulting in an unfair and motivated investigation.

(3.) ON 30.7.1997 petitioner's application in this Court under Section 438, Cr.P.C. vide Criminal Misc. Case No. 2803 of 1997 was disposed of on 15.9.1997. Similarly, petitioner's application under Section 439, Cr.P.C. filed on 4.10.1997 vide Criminal Mis. Case No. 3769 of 1997 was disposed of by this Court on 10.10.1997. After receipt of the charge -sheet on 21.11.1997 the Special Magistrate, C.B.I. -cum -Addl. Chief Judicial Magistrate, Bhubaneswar took cognizance of the offences and issued process against the petitioner and in that context passed the following order. 'F.F. received against Sri Indrajeet Roy under Section 354/376/511, IPC. Perused the original CD. As prima facie case under Section 354/376/511, IPC is made out against the accused, cog. taken thereunder. Issue summon against the accused fixing 16.12.1997 for app. Sd - M.R. Hazar A. C. J. M., BBSR.' Petitioner filed Criminal Misc. Case No. 4544 of 1997 under Section 482, Cr.P.C. with the prayer to quash the above quoted order dt. 21.11.1997, inter alia, on similar grounds which have been advanced in the present revision application (except the grounds relating to non -supply of copies of the statements and the grounds under Sections 227 and 228, Cr.P.C). In that case relevant portions from the orders dated 9.1.1998 and 31.7.1998 are quoted as herein below :