Semantic Analysis by spaCy
Adimul HossaIn Khan and ors. Vs. State of Orissa and anr.
Decided On : Oct-12-2007
Court : Orissa
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Case No' ), 'PRODUCT' => array( (int) 0 => '736', (int) 1 => 'Cri LJ 930' ) ), 'desc' => array( 'Judgement' => array( 'id' => '536655', 'acts' => '', 'appealno' => '', 'appellant' => 'Adimul HossaIn Khan and ors.', 'authreffered' => '', 'casename' => 'Adimul HossaIn Khan and ors. Vs. State of Orissa and anr.', 'casenote' => 'Criminal - Cognizance - Quashing of Proceeding - Sections 436, 34, 341, 323, 511 and 294 of Indian Penal Code (IPC) and Section 202 of Criminal Procedure Code (Cr.P.C) - Respondent lodged FIR under Sections 341,323,436 and 511 of IPC that while he was making boundary petitioners came, assaulted his family members and labourers and tried to set fire to the thatched roof - Investigating Officer (I.O) charge-sheeted petitioners under Sections 341, 323, 294 and 34 of IPC by deleting offence under Section 436 of IPC - Respondent filed complaint before Trial Court - On basis of complaint, court taken cognizance under Sections 436 and 34 of IPC against petitioners - Hence, present petition filed by petitioners for challenging order of Trial Court of taking cognizance under Sections 436 and 34 of IPC as complainant did not examined himself as witness under Section 202 of IPC - Held, as per settled principle of law, at the stage of issuing process, Magistrate is not required to enter into detailed discussion about merits or otherwise of case and whether or not allegations in complaint, if proved, would ultimately end in conviction of accused - Magistrate should only be satisfied that prima facie case exists against accused - In instant case, initial statement of complainant has been recorded under Section 200 of Cr. P.C. - During enquiry under Section 202 of Cr. P.C. six witnesses have been examined by complainant - Choice being that of complainant whom to examine, Magistrate cannot compel him to produce particular witness including himself for examination under Section 202 of Cr. P.C - Magistrate has no statutory obligation to call upon complainant to examine himself as witness - Petitioners have not advanced any argument that there is no prima facie material to take cognizance under Sections 436 and 34 of IPC - As Magistrate satisfied about existence of prima facie case, impugned order is not bad in law and contrary to provisions of law - Accordingly, appeal dismissed - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - Therefore, the cognizance taken by the learned SDJM is bad in law and contrary to the provisions' of law. Therefore, the order taking cognizance cannot be held to be bad in law for non-examination of the complainant himself. He should only be satisfied that a prima facie case exists against the accused persons named in the complaint petition. Of course, the proviso to this sub-section makes it mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, provided the offence complained of is triable exclusively by the Court of Session. Since the learned Magistrate has been satisfied about existence of prima facie case against the petitioners, it cannot be said that he has committed any illegality or irregularity in taking cognizance.', 'caseanalysis' => null, 'casesref' => 'Sangram Keshari Mishra v. Niranjan Senapati;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2007-10-12', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Pradip Mohanty, J.', 'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. In this revision, the petitioners challenge the order dated 6-1-2007 passed by the SDJM, Bhadrak taking cognizance of the offence under Sections 436/34, IPC against them in ICC Case No. 104 of 2006 instituted by opposite party No. 2.</p><p style="text-align: justify;">2. The allegation of the complainant-opposite party No. 2 is that while he was constructing the boundary wall between his house and that of the petitioners, the petitioners being armed with deadly weapons came and assaulted him. They also assaulted his family members and the labourers engaged for the purpose. Thereafter, the petitioners tried to set fire to the thatched roof of the complainant by pouring kerosene, but the same was extinguished with the help of the fire brigade. It is alleged that on account of such setting of fire, the complainant suffered a loss of Rs. 5000/-. The learned SDJM as it appears from the impugned order, perused the complaint petition, initial statement of the complainant, statements of the witnesses recorded under Section 202, Cr. P.C. Fire Station FIR No. 147 of 2005 dated 24-7-2005, etc. and took cognizance under Section 436/34, IPC. Thereafter, he directed issuance of summons against the petitioners.</p><p style="text-align: justify;">3. Mr. Ali, learned Counsel for the petitioners, submitted that on 24-7-2005 opposite party No. 2 had lodged an FIR against the petitioners registered as Bhadrak Town P.S. Case No. 198 of 2005 under Sections 341/323/436/511, IPC. The said P.S. case corresponds to G. R. Case No. 1184 of 2005 of the Court of SDJM Bhadrak. The Investigating Officer after due investigation submitted charge-sheet against the petitioners under Sections 341/323/294/34, IPC with an endorsement that the allegation with regard to setting of fire to the house of the complainant could not be proved by the witnesses. The learned SDJM having not taken cognizance under Section 436/34, IPC in the aforesaid G.R. Case, should not have taken cognizance of the said offence in the complaint case on the same set of facts. He further submitted that the complainant did not examine himself during enquiry under Section 202, Cr. P.C. Therefore, the cognizance taken by the learned SDJM is bad in law and contrary to the provisions' of law. In support of his contention, he placed reliance on the cases of Prafulla Kumar Samal alias Prafulla Samal v. State of Orissa (2004) 27 OCR 304 : 2004 Cri LJ (NOC) 311 (Ori) Gopal Krishna Rauta v. State of Orissa (1989) 31 OJD 92 (Criminal), Magi Nayak v. The State of Orissa and Baikunthanath Das (1988) 1 OCR 637, Lakhiram Agrawal v. C.R. Das, Food Inspector, Balangir District (2000) 18 OCR 637, Prasanna Kumar Das alias Prasanna Das v. Sudarsan Sethy (2000) 18 OR 178, Dhaneswar Behera v. State of Orissa (1988) 1 OCR 41, Dibakar Singh v. Birakishore Jarika (2004) 28 OCR 736, Jaladhar Das v. Sridhar Das (1988) 1 OR 466, Rosy v. State of Kerala (2000) 18 OCR (SC) 490 : 2000 Cri LJ 930, Kartikeswar Nayak v. Karadl Jagannath (1986) 61 CLT 95 and Gokulananda Mohanty v. Muralidhar Mallik (1979) 47 CLT 244.</p><p style="text-align: justify;">4. Mr. Sahoo, learned Counsel for opposite party No. 2 contended that being aggrieved by the conduct of the I.O. in deleting the offence under Section 436, IPC from the charge-sheet, opposite party No. 2 has filed the complaint. After recording of initial statement and enquiry under Section 202, Cr. P.C. the learned SDJM has taken cognizance under Section 436/34 since he found prima facie materials against the petitioners. He further contended that there is no statutory mandate for a Magistrate to direct the complainant to examine himself during enquiry under Section 202, Cr. P.C. The Magistrate is only required to call upon the complainant to produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. The choice being that of the complainant, he may choose not to examine himself, consequence and effect of which is to be considered during trial. In the instant case, the initial statement of the complainant has been recorded under Section 200, Cr. P.C. During enquiry, six witnesses have been examined by the complainant including the Fire Officer of Bhadrak Fire Station. Therefore, the order taking cognizance cannot be held to be bad in law for non-examination of the complainant himself. In support of his contention, he relied on Smt. Nagawwa v. Veeranna Shivalingappa, Konjalgi : 1976CriLJ1533 , Charan Rout v. Prafulla Mangaraj (1996) 11 OCR 322 : 1997 Cri LJ 1010 and Sangram Keshart Mishra v. Niranjan Senapati (2000) 18 OCR 764.</p><p style="text-align: justify;">5. Perused the complaint petition and the decisions cited by the parties. It is the settled principle of law that at the stage of issuing process, the Magistrate is not required to enter into detailed discussion about the merits or otherwise of the case and whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He should only be satisfied that a prima facie case exists against the accused persons named in the complaint petition. In the instant case, the initial statement of the complainant has been recorded under Section 200, Cr. P.C. During enquiry under Section 202, Cr. P.C. six witnesses have been examined by the complainant including the Fire Officer of Bhadrak fire station (P.W. 6), who has proved the fire report. The choice being that of the complainant, he may or may not examine himself, the consequence of which shall be considered by the Court during trial. The effect of non-examination of a particular witness is a matter, which comes for scrutiny during trial. Similar would be the situation irt case of non-examination of the complainant. Under Sub-section (2) of Section 202, Cr. P.C. it is the discretion of the Magistrate whether or not to take evidence of witnesses on oath. Of course, the proviso to this sub-section makes it mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, provided the offence complained of is triable exclusively by the Court of Session. In any case, the choice being that of the complainant whom to examine, the Magistrate cannot compel him to produce a particular witness including himself for examination under Section 202, Cr. P.C. In other words, the Magistrate has no statutory obligation to call upon the complainant to examine himself as a witness. He is only required to call upon the complainant to produce all his witnesses and examine them on oath. The above view has been expressed in Sangram Keshari Mishra v. Niranjan Senapati (2000) 18 OCR 764. In the instant case, being aggrieved by the conduct of the I.O. opposite party No. 2 chose to file a complaint case before the SDJM under Section 436/34, IPC and produced six witnesses. The petitioners have not advanced any argument that there is no prima facie material to take cognizance under Section 436/34, IPC. Since the learned Magistrate has been satisfied about existence of prima facie case against the petitioners, it cannot be said that he has committed any illegality or irregularity in taking cognizance. Therefore, this Court is not inclined to interfere with the impugned order passed by the S.D.J.M. Bhadrak.</p><p style="text-align: justify;">The revision is accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2008CriLJ655', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa and anr.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '536655' ) ) $title_for_layout = 'Adimul HossaIn Khan and ors. Vs. State of Orissa and anr. 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Case', (int) 5 => 'Kumar Samal', (int) 6 => 'Prafulla Samal', (int) 7 => 'Krishna Rauta', (int) 8 => 'Magi Nayak', (int) 9 => 'Baikunthanath Das', (int) 10 => 'Lakhiram Agrawal', (int) 11 => 'Prasanna Kumar Das', (int) 12 => 'Prasanna Das v.', (int) 13 => 'Sudarsan Sethy', (int) 14 => 'Dhaneswar Behera', (int) 15 => 'Dibakar Singh v.', (int) 16 => 'Birakishore Jarika', (int) 17 => 'Jaladhar Das', (int) 18 => 'Sridhar Das', (int) 19 => 'Rosy v. State', (int) 20 => 'Kartikeswar Nayak v. Karadl Jagannath', (int) 21 => 'Gokulananda Mohanty', (int) 22 => 'Muralidhar Mallik', (int) 23 => 'Sahoo', (int) 24 => 'Bhadrak Fire Station', (int) 25 => 'Nagawwa', (int) 26 => 'Veeranna Shivalingappa', (int) 27 => 'Konjalgi', (int) 28 => 'Charan Rout v. Prafulla Mangaraj', (int) 29 => 'Sangram Keshart Mishra v. Niranjan Senapati', (int) 30 => 'Bhadrak', (int) 31 => 'Sangram Keshari Mishra v. Niranjan Senapati', (int) 32 => 'facie', (int) 33 => 'S.D.J.M. Bhadrak' ), 'DATE' => array( (int) 0 => '2006', (int) 1 => '5000/-', (int) 2 => '24-7-2005', (int) 3 => '2005', (int) 4 => '2004', (int) 5 => '2004', (int) 6 => '1989', (int) 7 => '1988', (int) 8 => '2000', (int) 9 => '2000', (int) 10 => '1988', (int) 11 => '2004', (int) 12 => '1988', (int) 13 => '2000', (int) 14 => '1986', (int) 15 => '1979', (int) 16 => '1996', (int) 17 => '1997', (int) 18 => '2000', (int) 19 => '2000' ), 'GPE' => array( (int) 0 => 'Cr', (int) 1 => 'Counsel', (int) 2 => 'P.S.', (int) 3 => 'Cr', (int) 4 => 'Orissa', (int) 5 => 'Orissa', (int) 6 => 'Balangir', (int) 7 => 'Orissa', (int) 8 => 'Kerala', (int) 9 => 'Cr', (int) 10 => 'P.C.', (int) 11 => 'Cr', (int) 12 => 'Cr', (int) 13 => 'Cr', (int) 14 => 'Cr', (int) 15 => 'P.C.', (int) 16 => 'Cr', (int) 17 => 'P.C.', (int) 18 => 'Cr', (int) 19 => 'P.C.' ), 'FAC' => array( (int) 0 => 'Bhadrak Town P.S. Case No' ), 'PRODUCT' => array( (int) 0 => '736', (int) 1 => 'Cri LJ 930' ) ) $desc = array( 'Judgement' => array( 'id' => '536655', 'acts' => '', 'appealno' => '', 'appellant' => 'Adimul HossaIn Khan and ors.', 'authreffered' => '', 'casename' => 'Adimul HossaIn Khan and ors. Vs. State of Orissa and anr.', 'casenote' => 'Criminal - Cognizance - Quashing of Proceeding - Sections 436, 34, 341, 323, 511 and 294 of Indian Penal Code (IPC) and Section 202 of Criminal Procedure Code (Cr.P.C) - Respondent lodged FIR under Sections 341,323,436 and 511 of IPC that while he was making boundary petitioners came, assaulted his family members and labourers and tried to set fire to the thatched roof - Investigating Officer (I.O) charge-sheeted petitioners under Sections 341, 323, 294 and 34 of IPC by deleting offence under Section 436 of IPC - Respondent filed complaint before Trial Court - On basis of complaint, court taken cognizance under Sections 436 and 34 of IPC against petitioners - Hence, present petition filed by petitioners for challenging order of Trial Court of taking cognizance under Sections 436 and 34 of IPC as complainant did not examined himself as witness under Section 202 of IPC - Held, as per settled principle of law, at the stage of issuing process, Magistrate is not required to enter into detailed discussion about merits or otherwise of case and whether or not allegations in complaint, if proved, would ultimately end in conviction of accused - Magistrate should only be satisfied that prima facie case exists against accused - In instant case, initial statement of complainant has been recorded under Section 200 of Cr. P.C. - During enquiry under Section 202 of Cr. P.C. six witnesses have been examined by complainant - Choice being that of complainant whom to examine, Magistrate cannot compel him to produce particular witness including himself for examination under Section 202 of Cr. P.C - Magistrate has no statutory obligation to call upon complainant to examine himself as witness - Petitioners have not advanced any argument that there is no prima facie material to take cognizance under Sections 436 and 34 of IPC - As Magistrate satisfied about existence of prima facie case, impugned order is not bad in law and contrary to provisions of law - Accordingly, appeal dismissed - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - Therefore, the cognizance taken by the learned SDJM is bad in law and contrary to the provisions' of law. Therefore, the order taking cognizance cannot be held to be bad in law for non-examination of the complainant himself. He should only be satisfied that a prima facie case exists against the accused persons named in the complaint petition. Of course, the proviso to this sub-section makes it mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, provided the offence complained of is triable exclusively by the Court of Session. Since the learned Magistrate has been satisfied about existence of prima facie case against the petitioners, it cannot be said that he has committed any illegality or irregularity in taking cognizance.', 'caseanalysis' => null, 'casesref' => 'Sangram Keshari Mishra v. Niranjan Senapati;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2007-10-12', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Pradip Mohanty, J.', 'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. In this revision, the petitioners challenge the order dated 6-1-2007 passed by the SDJM, Bhadrak taking cognizance of the offence under Sections 436/34, IPC against them in ICC Case No. 104 of 2006 instituted by opposite party No. 2.</p><p style="text-align: justify;">2. The allegation of the complainant-opposite party No. 2 is that while he was constructing the boundary wall between his house and that of the petitioners, the petitioners being armed with deadly weapons came and assaulted him. They also assaulted his family members and the labourers engaged for the purpose. Thereafter, the petitioners tried to set fire to the thatched roof of the complainant by pouring kerosene, but the same was extinguished with the help of the fire brigade. It is alleged that on account of such setting of fire, the complainant suffered a loss of Rs. 5000/-. The learned SDJM as it appears from the impugned order, perused the complaint petition, initial statement of the complainant, statements of the witnesses recorded under Section 202, Cr. P.C. Fire Station FIR No. 147 of 2005 dated 24-7-2005, etc. and took cognizance under Section 436/34, IPC. Thereafter, he directed issuance of summons against the petitioners.</p><p style="text-align: justify;">3. Mr. Ali, learned Counsel for the petitioners, submitted that on 24-7-2005 opposite party No. 2 had lodged an FIR against the petitioners registered as Bhadrak Town P.S. Case No. 198 of 2005 under Sections 341/323/436/511, IPC. The said P.S. case corresponds to G. R. Case No. 1184 of 2005 of the Court of SDJM Bhadrak. The Investigating Officer after due investigation submitted charge-sheet against the petitioners under Sections 341/323/294/34, IPC with an endorsement that the allegation with regard to setting of fire to the house of the complainant could not be proved by the witnesses. The learned SDJM having not taken cognizance under Section 436/34, IPC in the aforesaid G.R. Case, should not have taken cognizance of the said offence in the complaint case on the same set of facts. He further submitted that the complainant did not examine himself during enquiry under Section 202, Cr. P.C. Therefore, the cognizance taken by the learned SDJM is bad in law and contrary to the provisions' of law. In support of his contention, he placed reliance on the cases of Prafulla Kumar Samal alias Prafulla Samal v. State of Orissa (2004) 27 OCR 304 : 2004 Cri LJ (NOC) 311 (Ori) Gopal Krishna Rauta v. State of Orissa (1989) 31 OJD 92 (Criminal), Magi Nayak v. The State of Orissa and Baikunthanath Das (1988) 1 OCR 637, Lakhiram Agrawal v. C.R. Das, Food Inspector, Balangir District (2000) 18 OCR 637, Prasanna Kumar Das alias Prasanna Das v. Sudarsan Sethy (2000) 18 OR 178, Dhaneswar Behera v. State of Orissa (1988) 1 OCR 41, Dibakar Singh v. Birakishore Jarika (2004) 28 OCR 736, Jaladhar Das v. Sridhar Das (1988) 1 OR 466, Rosy v. State of Kerala (2000) 18 OCR (SC) 490 : 2000 Cri LJ 930, Kartikeswar Nayak v. Karadl Jagannath (1986) 61 CLT 95 and Gokulananda Mohanty v. Muralidhar Mallik (1979) 47 CLT 244.</p><p style="text-align: justify;">4. Mr. Sahoo, learned Counsel for opposite party No. 2 contended that being aggrieved by the conduct of the I.O. in deleting the offence under Section 436, IPC from the charge-sheet, opposite party No. 2 has filed the complaint. After recording of initial statement and enquiry under Section 202, Cr. P.C. the learned SDJM has taken cognizance under Section 436/34 since he found prima facie materials against the petitioners. He further contended that there is no statutory mandate for a Magistrate to direct the complainant to examine himself during enquiry under Section 202, Cr. P.C. The Magistrate is only required to call upon the complainant to produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. The choice being that of the complainant, he may choose not to examine himself, consequence and effect of which is to be considered during trial. In the instant case, the initial statement of the complainant has been recorded under Section 200, Cr. P.C. During enquiry, six witnesses have been examined by the complainant including the Fire Officer of Bhadrak Fire Station. Therefore, the order taking cognizance cannot be held to be bad in law for non-examination of the complainant himself. In support of his contention, he relied on Smt. Nagawwa v. Veeranna Shivalingappa, Konjalgi : 1976CriLJ1533 , Charan Rout v. Prafulla Mangaraj (1996) 11 OCR 322 : 1997 Cri LJ 1010 and Sangram Keshart Mishra v. Niranjan Senapati (2000) 18 OCR 764.</p><p style="text-align: justify;">5. Perused the complaint petition and the decisions cited by the parties. It is the settled principle of law that at the stage of issuing process, the Magistrate is not required to enter into detailed discussion about the merits or otherwise of the case and whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He should only be satisfied that a prima facie case exists against the accused persons named in the complaint petition. In the instant case, the initial statement of the complainant has been recorded under Section 200, Cr. P.C. During enquiry under Section 202, Cr. P.C. six witnesses have been examined by the complainant including the Fire Officer of Bhadrak fire station (P.W. 6), who has proved the fire report. The choice being that of the complainant, he may or may not examine himself, the consequence of which shall be considered by the Court during trial. The effect of non-examination of a particular witness is a matter, which comes for scrutiny during trial. Similar would be the situation irt case of non-examination of the complainant. Under Sub-section (2) of Section 202, Cr. P.C. it is the discretion of the Magistrate whether or not to take evidence of witnesses on oath. Of course, the proviso to this sub-section makes it mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, provided the offence complained of is triable exclusively by the Court of Session. In any case, the choice being that of the complainant whom to examine, the Magistrate cannot compel him to produce a particular witness including himself for examination under Section 202, Cr. P.C. In other words, the Magistrate has no statutory obligation to call upon the complainant to examine himself as a witness. He is only required to call upon the complainant to produce all his witnesses and examine them on oath. The above view has been expressed in Sangram Keshari Mishra v. Niranjan Senapati (2000) 18 OCR 764. In the instant case, being aggrieved by the conduct of the I.O. opposite party No. 2 chose to file a complaint case before the SDJM under Section 436/34, IPC and produced six witnesses. The petitioners have not advanced any argument that there is no prima facie material to take cognizance under Section 436/34, IPC. Since the learned Magistrate has been satisfied about existence of prima facie case against the petitioners, it cannot be said that he has committed any illegality or irregularity in taking cognizance. Therefore, this Court is not inclined to interfere with the impugned order passed by the S.D.J.M. Bhadrak.</p><p style="text-align: justify;">The revision is accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2008CriLJ655', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa and anr.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '536655' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Case No' ), 'PRODUCT' => array( (int) 0 => '736', (int) 1 => 'Cri LJ 930' ) ), 'desc' => array( 'Judgement' => array( 'id' => '536655', 'acts' => '', 'appealno' => '', 'appellant' => 'Adimul HossaIn Khan and ors.', 'authreffered' => '', 'casename' => 'Adimul HossaIn Khan and ors. Vs. State of Orissa and anr.', 'casenote' => 'Criminal - Cognizance - Quashing of Proceeding - Sections 436, 34, 341, 323, 511 and 294 of Indian Penal Code (IPC) and Section 202 of Criminal Procedure Code (Cr.P.C) - Respondent lodged FIR under Sections 341,323,436 and 511 of IPC that while he was making boundary petitioners came, assaulted his family members and labourers and tried to set fire to the thatched roof - Investigating Officer (I.O) charge-sheeted petitioners under Sections 341, 323, 294 and 34 of IPC by deleting offence under Section 436 of IPC - Respondent filed complaint before Trial Court - On basis of complaint, court taken cognizance under Sections 436 and 34 of IPC against petitioners - Hence, present petition filed by petitioners for challenging order of Trial Court of taking cognizance under Sections 436 and 34 of IPC as complainant did not examined himself as witness under Section 202 of IPC - Held, as per settled principle of law, at the stage of issuing process, Magistrate is not required to enter into detailed discussion about merits or otherwise of case and whether or not allegations in complaint, if proved, would ultimately end in conviction of accused - Magistrate should only be satisfied that prima facie case exists against accused - In instant case, initial statement of complainant has been recorded under Section 200 of Cr. P.C. - During enquiry under Section 202 of Cr. P.C. six witnesses have been examined by complainant - Choice being that of complainant whom to examine, Magistrate cannot compel him to produce particular witness including himself for examination under Section 202 of Cr. P.C - Magistrate has no statutory obligation to call upon complainant to examine himself as witness - Petitioners have not advanced any argument that there is no prima facie material to take cognizance under Sections 436 and 34 of IPC - As Magistrate satisfied about existence of prima facie case, impugned order is not bad in law and contrary to provisions of law - Accordingly, appeal dismissed - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - Therefore, the cognizance taken by the learned SDJM is bad in law and contrary to the provisions' of law. Therefore, the order taking cognizance cannot be held to be bad in law for non-examination of the complainant himself. He should only be satisfied that a prima facie case exists against the accused persons named in the complaint petition. Of course, the proviso to this sub-section makes it mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, provided the offence complained of is triable exclusively by the Court of Session. Since the learned Magistrate has been satisfied about existence of prima facie case against the petitioners, it cannot be said that he has committed any illegality or irregularity in taking cognizance.', 'caseanalysis' => null, 'casesref' => 'Sangram Keshari Mishra v. Niranjan Senapati;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2007-10-12', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Pradip Mohanty, J.', 'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. In this revision, the petitioners challenge the order dated 6-1-2007 passed by the SDJM, Bhadrak taking cognizance of the offence under Sections 436/34, IPC against them in ICC Case No. 104 of 2006 instituted by opposite party No. 2.</p><p style="text-align: justify;">2. The allegation of the complainant-opposite party No. 2 is that while he was constructing the boundary wall between his house and that of the petitioners, the petitioners being armed with deadly weapons came and assaulted him. They also assaulted his family members and the labourers engaged for the purpose. Thereafter, the petitioners tried to set fire to the thatched roof of the complainant by pouring kerosene, but the same was extinguished with the help of the fire brigade. It is alleged that on account of such setting of fire, the complainant suffered a loss of Rs. 5000/-. The learned SDJM as it appears from the impugned order, perused the complaint petition, initial statement of the complainant, statements of the witnesses recorded under Section 202, Cr. P.C. Fire Station FIR No. 147 of 2005 dated 24-7-2005, etc. and took cognizance under Section 436/34, IPC. Thereafter, he directed issuance of summons against the petitioners.</p><p style="text-align: justify;">3. Mr. Ali, learned Counsel for the petitioners, submitted that on 24-7-2005 opposite party No. 2 had lodged an FIR against the petitioners registered as Bhadrak Town P.S. Case No. 198 of 2005 under Sections 341/323/436/511, IPC. The said P.S. case corresponds to G. R. Case No. 1184 of 2005 of the Court of SDJM Bhadrak. The Investigating Officer after due investigation submitted charge-sheet against the petitioners under Sections 341/323/294/34, IPC with an endorsement that the allegation with regard to setting of fire to the house of the complainant could not be proved by the witnesses. The learned SDJM having not taken cognizance under Section 436/34, IPC in the aforesaid G.R. Case, should not have taken cognizance of the said offence in the complaint case on the same set of facts. He further submitted that the complainant did not examine himself during enquiry under Section 202, Cr. P.C. Therefore, the cognizance taken by the learned SDJM is bad in law and contrary to the provisions' of law. In support of his contention, he placed reliance on the cases of Prafulla Kumar Samal alias Prafulla Samal v. State of Orissa (2004) 27 OCR 304 : 2004 Cri LJ (NOC) 311 (Ori) Gopal Krishna Rauta v. State of Orissa (1989) 31 OJD 92 (Criminal), Magi Nayak v. The State of Orissa and Baikunthanath Das (1988) 1 OCR 637, Lakhiram Agrawal v. C.R. Das, Food Inspector, Balangir District (2000) 18 OCR 637, Prasanna Kumar Das alias Prasanna Das v. Sudarsan Sethy (2000) 18 OR 178, Dhaneswar Behera v. State of Orissa (1988) 1 OCR 41, Dibakar Singh v. Birakishore Jarika (2004) 28 OCR 736, Jaladhar Das v. Sridhar Das (1988) 1 OR 466, Rosy v. State of Kerala (2000) 18 OCR (SC) 490 : 2000 Cri LJ 930, Kartikeswar Nayak v. Karadl Jagannath (1986) 61 CLT 95 and Gokulananda Mohanty v. Muralidhar Mallik (1979) 47 CLT 244.</p><p style="text-align: justify;">4. Mr. Sahoo, learned Counsel for opposite party No. 2 contended that being aggrieved by the conduct of the I.O. in deleting the offence under Section 436, IPC from the charge-sheet, opposite party No. 2 has filed the complaint. After recording of initial statement and enquiry under Section 202, Cr. P.C. the learned SDJM has taken cognizance under Section 436/34 since he found prima facie materials against the petitioners. He further contended that there is no statutory mandate for a Magistrate to direct the complainant to examine himself during enquiry under Section 202, Cr. P.C. The Magistrate is only required to call upon the complainant to produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. The choice being that of the complainant, he may choose not to examine himself, consequence and effect of which is to be considered during trial. In the instant case, the initial statement of the complainant has been recorded under Section 200, Cr. P.C. During enquiry, six witnesses have been examined by the complainant including the Fire Officer of Bhadrak Fire Station. Therefore, the order taking cognizance cannot be held to be bad in law for non-examination of the complainant himself. In support of his contention, he relied on Smt. Nagawwa v. Veeranna Shivalingappa, Konjalgi : 1976CriLJ1533 , Charan Rout v. Prafulla Mangaraj (1996) 11 OCR 322 : 1997 Cri LJ 1010 and Sangram Keshart Mishra v. Niranjan Senapati (2000) 18 OCR 764.</p><p style="text-align: justify;">5. Perused the complaint petition and the decisions cited by the parties. It is the settled principle of law that at the stage of issuing process, the Magistrate is not required to enter into detailed discussion about the merits or otherwise of the case and whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He should only be satisfied that a prima facie case exists against the accused persons named in the complaint petition. In the instant case, the initial statement of the complainant has been recorded under Section 200, Cr. P.C. During enquiry under Section 202, Cr. P.C. six witnesses have been examined by the complainant including the Fire Officer of Bhadrak fire station (P.W. 6), who has proved the fire report. The choice being that of the complainant, he may or may not examine himself, the consequence of which shall be considered by the Court during trial. The effect of non-examination of a particular witness is a matter, which comes for scrutiny during trial. Similar would be the situation irt case of non-examination of the complainant. Under Sub-section (2) of Section 202, Cr. P.C. it is the discretion of the Magistrate whether or not to take evidence of witnesses on oath. Of course, the proviso to this sub-section makes it mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, provided the offence complained of is triable exclusively by the Court of Session. In any case, the choice being that of the complainant whom to examine, the Magistrate cannot compel him to produce a particular witness including himself for examination under Section 202, Cr. P.C. In other words, the Magistrate has no statutory obligation to call upon the complainant to examine himself as a witness. He is only required to call upon the complainant to produce all his witnesses and examine them on oath. The above view has been expressed in Sangram Keshari Mishra v. Niranjan Senapati (2000) 18 OCR 764. In the instant case, being aggrieved by the conduct of the I.O. opposite party No. 2 chose to file a complaint case before the SDJM under Section 436/34, IPC and produced six witnesses. The petitioners have not advanced any argument that there is no prima facie material to take cognizance under Section 436/34, IPC. Since the learned Magistrate has been satisfied about existence of prima facie case against the petitioners, it cannot be said that he has committed any illegality or irregularity in taking cognizance. Therefore, this Court is not inclined to interfere with the impugned order passed by the S.D.J.M. Bhadrak.</p><p style="text-align: justify;">The revision is accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2008CriLJ655', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa and anr.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '536655' ) ) $title_for_layout = 'Adimul HossaIn Khan and ors. Vs. State of Orissa and anr. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 202', (int) 1 => 'Section 436/34', (int) 2 => 'Section 436/34', (int) 3 => 'Section 202', (int) 4 => 'Section 436', (int) 5 => 'Section 202', (int) 6 => 'Section 436/34', (int) 7 => 'Section 202', (int) 8 => 'Section 200', (int) 9 => 'Section 200', (int) 10 => 'Section 202', (int) 11 => 'Section 202', (int) 12 => 'Section 202', (int) 13 => 'Section 436/34' ), 'NORP' => array( (int) 0 => 'J.1' ), 'CARDINAL' => array( (int) 0 => '6-1-2007', (int) 1 => '104', (int) 2 => '2.2', (int) 3 => '2', (int) 4 => '147', (int) 5 => '24', (int) 6 => '2', (int) 7 => '27', (int) 8 => '304', (int) 9 => '311', (int) 10 => '31', (int) 11 => '1', (int) 12 => '637', (int) 13 => '18', (int) 14 => '637', (int) 15 => '18', (int) 16 => '178', (int) 17 => '1', (int) 18 => '28', (int) 19 => '1', (int) 20 => '18', (int) 21 => '490', (int) 22 => '2000', (int) 23 => '61', (int) 24 => '47', (int) 25 => '2', (int) 26 => '2', (int) 27 => 'six', (int) 28 => '11', (int) 29 => '322', (int) 30 => '18', (int) 31 => 'six', (int) 32 => '6', (int) 33 => '2', (int) 34 => '18', (int) 35 => '764', (int) 36 => '2', (int) 37 => 'six' ), 'ORG' => array( (int) 0 => 'SDJM', (int) 1 => 'Sections 436/34', (int) 2 => 'IPC', (int) 3 => 'SDJM', (int) 4 => 'IPC', (int) 5 => 'FIR', (int) 6 => 'IPC', (int) 7 => 'the Court of SDJM Bhadrak', (int) 8 => 'IPC', (int) 9 => 'SDJM', (int) 10 => 'IPC', (int) 11 => 'SDJM', (int) 12 => 'NOC', (int) 13 => 'C.R. Das', (int) 14 => 'OCR', (int) 15 => 'SC', (int) 16 => 'CLT', (int) 17 => 'I.O.', (int) 18 => 'IPC', (int) 19 => 'SDJM', (int) 20 => 'Magistrate', (int) 21 => 'Magistrate', (int) 22 => 'Smt', (int) 23 => 'OCR', (int) 24 => 'Cri LJ 1010', (int) 25 => 'OCR 764.5', (int) 26 => 'Magistrate', (int) 27 => 'Court', (int) 28 => 'Magistrate', (int) 29 => 'Magistrate', (int) 30 => 'the Court of Session', (int) 31 => 'Magistrate', (int) 32 => 'Magistrate', (int) 33 => 'OCR', (int) 34 => 'I.O.', (int) 35 => 'IPC', (int) 36 => 'IPC', (int) 37 => 'Magistrate', (int) 38 => 'Court' ), 'PERSON' => array( (int) 0 => 'Bhadrak', (int) 1 => 'P.C. Fire Station FIR', (int) 2 => 'Ali', (int) 3 => 'G. R. Case No', (int) 4 => 'G.R. Case', (int) 5 => 'Kumar Samal', (int) 6 => 'Prafulla Samal', (int) 7 => 'Krishna Rauta', (int) 8 => 'Magi Nayak', (int) 9 => 'Baikunthanath Das', (int) 10 => 'Lakhiram Agrawal', (int) 11 => 'Prasanna Kumar Das', (int) 12 => 'Prasanna Das v.', (int) 13 => 'Sudarsan Sethy', (int) 14 => 'Dhaneswar Behera', (int) 15 => 'Dibakar Singh v.', (int) 16 => 'Birakishore Jarika', (int) 17 => 'Jaladhar Das', (int) 18 => 'Sridhar Das', (int) 19 => 'Rosy v. State', (int) 20 => 'Kartikeswar Nayak v. Karadl Jagannath', (int) 21 => 'Gokulananda Mohanty', (int) 22 => 'Muralidhar Mallik', (int) 23 => 'Sahoo', (int) 24 => 'Bhadrak Fire Station', (int) 25 => 'Nagawwa', (int) 26 => 'Veeranna Shivalingappa', (int) 27 => 'Konjalgi', (int) 28 => 'Charan Rout v. Prafulla Mangaraj', (int) 29 => 'Sangram Keshart Mishra v. Niranjan Senapati', (int) 30 => 'Bhadrak', (int) 31 => 'Sangram Keshari Mishra v. Niranjan Senapati', (int) 32 => 'facie', (int) 33 => 'S.D.J.M. Bhadrak' ), 'DATE' => array( (int) 0 => '2006', (int) 1 => '5000/-', (int) 2 => '24-7-2005', (int) 3 => '2005', (int) 4 => '2004', (int) 5 => '2004', (int) 6 => '1989', (int) 7 => '1988', (int) 8 => '2000', (int) 9 => '2000', (int) 10 => '1988', (int) 11 => '2004', (int) 12 => '1988', (int) 13 => '2000', (int) 14 => '1986', (int) 15 => '1979', (int) 16 => '1996', (int) 17 => '1997', (int) 18 => '2000', (int) 19 => '2000' ), 'GPE' => array( (int) 0 => 'Cr', (int) 1 => 'Counsel', (int) 2 => 'P.S.', (int) 3 => 'Cr', (int) 4 => 'Orissa', (int) 5 => 'Orissa', (int) 6 => 'Balangir', (int) 7 => 'Orissa', (int) 8 => 'Kerala', (int) 9 => 'Cr', (int) 10 => 'P.C.', (int) 11 => 'Cr', (int) 12 => 'Cr', (int) 13 => 'Cr', (int) 14 => 'Cr', (int) 15 => 'P.C.', (int) 16 => 'Cr', (int) 17 => 'P.C.', (int) 18 => 'Cr', (int) 19 => 'P.C.' ), 'FAC' => array( (int) 0 => 'Bhadrak Town P.S. Case No' ), 'PRODUCT' => array( (int) 0 => '736', (int) 1 => 'Cri LJ 930' ) ) $desc = array( 'Judgement' => array( 'id' => '536655', 'acts' => '', 'appealno' => '', 'appellant' => 'Adimul HossaIn Khan and ors.', 'authreffered' => '', 'casename' => 'Adimul HossaIn Khan and ors. Vs. State of Orissa and anr.', 'casenote' => 'Criminal - Cognizance - Quashing of Proceeding - Sections 436, 34, 341, 323, 511 and 294 of Indian Penal Code (IPC) and Section 202 of Criminal Procedure Code (Cr.P.C) - Respondent lodged FIR under Sections 341,323,436 and 511 of IPC that while he was making boundary petitioners came, assaulted his family members and labourers and tried to set fire to the thatched roof - Investigating Officer (I.O) charge-sheeted petitioners under Sections 341, 323, 294 and 34 of IPC by deleting offence under Section 436 of IPC - Respondent filed complaint before Trial Court - On basis of complaint, court taken cognizance under Sections 436 and 34 of IPC against petitioners - Hence, present petition filed by petitioners for challenging order of Trial Court of taking cognizance under Sections 436 and 34 of IPC as complainant did not examined himself as witness under Section 202 of IPC - Held, as per settled principle of law, at the stage of issuing process, Magistrate is not required to enter into detailed discussion about merits or otherwise of case and whether or not allegations in complaint, if proved, would ultimately end in conviction of accused - Magistrate should only be satisfied that prima facie case exists against accused - In instant case, initial statement of complainant has been recorded under Section 200 of Cr. P.C. - During enquiry under Section 202 of Cr. P.C. six witnesses have been examined by complainant - Choice being that of complainant whom to examine, Magistrate cannot compel him to produce particular witness including himself for examination under Section 202 of Cr. P.C - Magistrate has no statutory obligation to call upon complainant to examine himself as witness - Petitioners have not advanced any argument that there is no prima facie material to take cognizance under Sections 436 and 34 of IPC - As Magistrate satisfied about existence of prima facie case, impugned order is not bad in law and contrary to provisions of law - Accordingly, appeal dismissed - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - Therefore, the cognizance taken by the learned SDJM is bad in law and contrary to the provisions' of law. Therefore, the order taking cognizance cannot be held to be bad in law for non-examination of the complainant himself. He should only be satisfied that a prima facie case exists against the accused persons named in the complaint petition. Of course, the proviso to this sub-section makes it mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, provided the offence complained of is triable exclusively by the Court of Session. Since the learned Magistrate has been satisfied about existence of prima facie case against the petitioners, it cannot be said that he has committed any illegality or irregularity in taking cognizance.', 'caseanalysis' => null, 'casesref' => 'Sangram Keshari Mishra v. Niranjan Senapati;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Orissa', 'court_type' => 'HC', 'decidedon' => '2007-10-12', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => ' Pradip Mohanty, J.', 'judgement' => '<p style="text-align: justify;">Pradip Mohanty, J.</p><p style="text-align: justify;">1. In this revision, the petitioners challenge the order dated 6-1-2007 passed by the SDJM, Bhadrak taking cognizance of the offence under Sections 436/34, IPC against them in ICC Case No. 104 of 2006 instituted by opposite party No. 2.</p><p style="text-align: justify;">2. The allegation of the complainant-opposite party No. 2 is that while he was constructing the boundary wall between his house and that of the petitioners, the petitioners being armed with deadly weapons came and assaulted him. They also assaulted his family members and the labourers engaged for the purpose. Thereafter, the petitioners tried to set fire to the thatched roof of the complainant by pouring kerosene, but the same was extinguished with the help of the fire brigade. It is alleged that on account of such setting of fire, the complainant suffered a loss of Rs. 5000/-. The learned SDJM as it appears from the impugned order, perused the complaint petition, initial statement of the complainant, statements of the witnesses recorded under Section 202, Cr. P.C. Fire Station FIR No. 147 of 2005 dated 24-7-2005, etc. and took cognizance under Section 436/34, IPC. Thereafter, he directed issuance of summons against the petitioners.</p><p style="text-align: justify;">3. Mr. Ali, learned Counsel for the petitioners, submitted that on 24-7-2005 opposite party No. 2 had lodged an FIR against the petitioners registered as Bhadrak Town P.S. Case No. 198 of 2005 under Sections 341/323/436/511, IPC. The said P.S. case corresponds to G. R. Case No. 1184 of 2005 of the Court of SDJM Bhadrak. The Investigating Officer after due investigation submitted charge-sheet against the petitioners under Sections 341/323/294/34, IPC with an endorsement that the allegation with regard to setting of fire to the house of the complainant could not be proved by the witnesses. The learned SDJM having not taken cognizance under Section 436/34, IPC in the aforesaid G.R. Case, should not have taken cognizance of the said offence in the complaint case on the same set of facts. He further submitted that the complainant did not examine himself during enquiry under Section 202, Cr. P.C. Therefore, the cognizance taken by the learned SDJM is bad in law and contrary to the provisions' of law. In support of his contention, he placed reliance on the cases of Prafulla Kumar Samal alias Prafulla Samal v. State of Orissa (2004) 27 OCR 304 : 2004 Cri LJ (NOC) 311 (Ori) Gopal Krishna Rauta v. State of Orissa (1989) 31 OJD 92 (Criminal), Magi Nayak v. The State of Orissa and Baikunthanath Das (1988) 1 OCR 637, Lakhiram Agrawal v. C.R. Das, Food Inspector, Balangir District (2000) 18 OCR 637, Prasanna Kumar Das alias Prasanna Das v. Sudarsan Sethy (2000) 18 OR 178, Dhaneswar Behera v. State of Orissa (1988) 1 OCR 41, Dibakar Singh v. Birakishore Jarika (2004) 28 OCR 736, Jaladhar Das v. Sridhar Das (1988) 1 OR 466, Rosy v. State of Kerala (2000) 18 OCR (SC) 490 : 2000 Cri LJ 930, Kartikeswar Nayak v. Karadl Jagannath (1986) 61 CLT 95 and Gokulananda Mohanty v. Muralidhar Mallik (1979) 47 CLT 244.</p><p style="text-align: justify;">4. Mr. Sahoo, learned Counsel for opposite party No. 2 contended that being aggrieved by the conduct of the I.O. in deleting the offence under Section 436, IPC from the charge-sheet, opposite party No. 2 has filed the complaint. After recording of initial statement and enquiry under Section 202, Cr. P.C. the learned SDJM has taken cognizance under Section 436/34 since he found prima facie materials against the petitioners. He further contended that there is no statutory mandate for a Magistrate to direct the complainant to examine himself during enquiry under Section 202, Cr. P.C. The Magistrate is only required to call upon the complainant to produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. The choice being that of the complainant, he may choose not to examine himself, consequence and effect of which is to be considered during trial. In the instant case, the initial statement of the complainant has been recorded under Section 200, Cr. P.C. During enquiry, six witnesses have been examined by the complainant including the Fire Officer of Bhadrak Fire Station. Therefore, the order taking cognizance cannot be held to be bad in law for non-examination of the complainant himself. In support of his contention, he relied on Smt. Nagawwa v. Veeranna Shivalingappa, Konjalgi : 1976CriLJ1533 , Charan Rout v. Prafulla Mangaraj (1996) 11 OCR 322 : 1997 Cri LJ 1010 and Sangram Keshart Mishra v. Niranjan Senapati (2000) 18 OCR 764.</p><p style="text-align: justify;">5. Perused the complaint petition and the decisions cited by the parties. It is the settled principle of law that at the stage of issuing process, the Magistrate is not required to enter into detailed discussion about the merits or otherwise of the case and whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He should only be satisfied that a prima facie case exists against the accused persons named in the complaint petition. In the instant case, the initial statement of the complainant has been recorded under Section 200, Cr. P.C. During enquiry under Section 202, Cr. P.C. six witnesses have been examined by the complainant including the Fire Officer of Bhadrak fire station (P.W. 6), who has proved the fire report. The choice being that of the complainant, he may or may not examine himself, the consequence of which shall be considered by the Court during trial. The effect of non-examination of a particular witness is a matter, which comes for scrutiny during trial. Similar would be the situation irt case of non-examination of the complainant. Under Sub-section (2) of Section 202, Cr. P.C. it is the discretion of the Magistrate whether or not to take evidence of witnesses on oath. Of course, the proviso to this sub-section makes it mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, provided the offence complained of is triable exclusively by the Court of Session. In any case, the choice being that of the complainant whom to examine, the Magistrate cannot compel him to produce a particular witness including himself for examination under Section 202, Cr. P.C. In other words, the Magistrate has no statutory obligation to call upon the complainant to examine himself as a witness. He is only required to call upon the complainant to produce all his witnesses and examine them on oath. The above view has been expressed in Sangram Keshari Mishra v. Niranjan Senapati (2000) 18 OCR 764. In the instant case, being aggrieved by the conduct of the I.O. opposite party No. 2 chose to file a complaint case before the SDJM under Section 436/34, IPC and produced six witnesses. The petitioners have not advanced any argument that there is no prima facie material to take cognizance under Section 436/34, IPC. Since the learned Magistrate has been satisfied about existence of prima facie case against the petitioners, it cannot be said that he has committed any illegality or irregularity in taking cognizance. Therefore, this Court is not inclined to interfere with the impugned order passed by the S.D.J.M. Bhadrak.</p><p style="text-align: justify;">The revision is accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2008CriLJ655', 'ratiodecidendi' => '', 'respondent' => 'State of Orissa and anr.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '536655' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 202, Section 436/34, Section 436/34, Section 202, Section 436, Section 202, Section 436/34, Section 202, Section 200, Section 200, Section 202, Section 202, Section 202, Section 436/34
NORP: J.1
CARDINAL: 6-1-2007, 104, 2.2, 2, 147, 24, 2, 27, 304, 311, 31, 1, 637, 18, 637, 18, 178, 1, 28, 1, 18, 490, 2000, 61, 47, 2, 2, six, 11, 322, 18, six, 6, 2, 18, 764, 2, six
ORG: SDJM, Sections 436/34, IPC, SDJM, IPC, FIR, IPC, the Court of SDJM Bhadrak, IPC, SDJM, IPC, SDJM, NOC, C.R. Das, OCR, SC, CLT, I.O., IPC, SDJM, Magistrate, Magistrate, Smt, OCR, Cri LJ 1010, OCR 764.5, Magistrate, Court, Magistrate, Magistrate, the Court of Session, Magistrate, Magistrate, OCR, I.O., IPC, IPC, Magistrate, Court
PERSON: Bhadrak, P.C. Fire Station FIR, Ali, G. R. Case No, G.R. Case, Kumar Samal, Prafulla Samal, Krishna Rauta, Magi Nayak, Baikunthanath Das, Lakhiram Agrawal, Prasanna Kumar Das, Prasanna Das v., Sudarsan Sethy, Dhaneswar Behera, Dibakar Singh v., Birakishore Jarika, Jaladhar Das, Sridhar Das, Rosy v. State, Kartikeswar Nayak v. Karadl Jagannath, Gokulananda Mohanty, Muralidhar Mallik, Sahoo, Bhadrak Fire Station, Nagawwa, Veeranna Shivalingappa, Konjalgi, Charan Rout v. Prafulla Mangaraj, Sangram Keshart Mishra v. Niranjan Senapati, Bhadrak, Sangram Keshari Mishra v. Niranjan Senapati, facie, S.D.J.M. Bhadrak
DATE: 2006, 5000/-, 24-7-2005, 2005, 2004, 2004, 1989, 1988, 2000, 2000, 1988, 2004, 1988, 2000, 1986, 1979, 1996, 1997, 2000, 2000
GPE: Cr, Counsel, P.S., Cr, Orissa, Orissa, Balangir, Orissa, Kerala, Cr, P.C., Cr, Cr, Cr, Cr, P.C., Cr, P.C., Cr, P.C.
FAC: Bhadrak Town P.S. Case No
PRODUCT: 736, Cri LJ 930