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Cites 4 docs
The Indian Penal Code
Section 482 in The Indian Penal Code
Section 376 in The Indian Penal Code
State Of Bihar vs Murad Ali Khan, Farukh Salauddin & ... on 10 October, 1988

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Orissa High Court
Gagan Behera vs State Of Orissa on 29 June, 2001
Equivalent citations: 2002 CriLJ 696
Author: N Hanumanthappa
Bench: N Hanumanthappa



ORDER
 

N.Y. Hanumanthappa, C.J. 

1. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (in short, the 'Code') requesting the Court to quash the proceeding initiated against him, i.e. G.R. Case No. 96 of 1997 pending on the file of learned J.M.F.C., Ranpur arising out of Ranpur P.S. Case No. 98 of 1997 for alleged commission of offence punishable under Section 376, I.P.C. by him.

2. According to the petitioner, on 29-8-1997 the informant lodged a complaint in Ranpur Police Station which was registered as Ranpur P.C. Case No. 98 of 1997 alleging that on 20-4-1997 at about 7 p.m. the petitioner had sexual intercourse with her against her consent. Her father though lodged the F.I.R. on the next day same was not accepted. Accordingly, the informant had to lodge a written report on 29-8-1997. The said report was registered as Ranpur P.S. Case No. 98 of 1997 dated 3-9-1997. Later on it was registered as G.R. Case No. 96 of 1997. Pursuant to the F.I.R. lodged, the I.O. enquired into the matter, examined the witnesses and after going through the evidence collected found that no prima facie case was made out. As such the I.O. submitted final form on 21-9-1998. The said final form was accepted by the learned Magistrate on 13-10-1998. The learned Magistrate issued summons to the informant on 10-12-1998. The case was again adjourned to 2-1-1999. On 28-1-1999 the informant appeared and lodged protest petition requesting the Court to take cognizance. Taking into consideration several adjournments, on 22-2-1999 the trial Court took cognizance against the petitioner for commission of offence punishable under Section 376, I.P.C. Grounds taken by the petitioner for challenging the order of cognizance are as follows :

(i) Whether the procedures adopted by the learned J.M.F.C., Ranpur i.e., after submission of the final form by the Police and thereafter acceptance of the protest petition of the informant and thereafter continuance of the G.R. case can be sustainable in the eye of law.

(ii) Whether the trial Court is justified in proceeding with the G.R. case particularly when the learned trial Court did not take cognizance on the basis of the final form submitted by the Police and moreover, once the protest petition is filed and the same is accepted, without taking recourse of the provision contained in Chapter XV of the Code of Criminal Procedure and continuance of the G.R. case is bad in law?

(iii) Whether the learned trial Court is justified in considering the materials available in the case diary, particularly when the Court did not take any cognizance on the same inasmuch as once the protest petition is accepted, the Court ought to have proceeded by treating the same as a complaint case and thereafter to follow the procedures laid down in the Code of Criminal Procedure.

(iv) The uncontroverted allegations made in the protest petition coupled with the materials in the case diary and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the petitioner.

3. Learned counsel appearing on behalf of the petitioner submitted that when the final form was filed there was no need for the trial Court to accept the protest petition and then to take cognizance. The learned Magistrate before taking cognizance should have applied his mind to see whether a prima facie case has been made out and the taking of cognizance is illegal. It is further submitted that the entire proceedings are to be quashed by exercising power under Section 482 of the Code.

4. Section 482 of the Code reads as under :

482. Saving of inherent powers of High Court.

Nothing in this Code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

A reading of the above section makes it clear that the scope to interfere in the orders passed by the trial Court is very much limited. Under Section 482 the Court can interfere only when it is satisfied that it is necessary :

(i) to give effect to any order passed by the Court;

(ii) to prevent abuse of process of any Court; and

(iii) to secure ends of justice. This position has been explained by the Supreme Court in the case of State of Bihar v. Murad Ali Khan, AIR 1989 SC 1 : (1989 Cri LJ 1005). Relevant portion of the said decision is extracted below (at page 1009 of Cri LJ) :

It is trite that jurisdiction under Section 482, Cr. P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court or not.

From the above legal position, I am of the | view that the petitioner has not made out a case so that this Court can interfere under Section 482 of the Code.

5. Learned counsel for petitioner submitted that if the Court refuses to allow the petition, at least a direction be given to the trial Court that in case the petitioner appears before it with an application for bail same shall be ordered. It is not proper for the Court to suggest to the trial Court to consider the bail application if it is filed by the petitioner. The petitioner will have a right to move the Court for bail, and it is the duty of the Court either to grant or refuse the prayer by exercising its discretion, taking into consideration the settled principles of law vis-a-vis the nature of the case, seriousness of the allegations made and conduct of the parties. I need not give any advice to the petitioner about the course which he has to adopt.

With the above observation, the petition is disposed of.