JUDGMENT
P.K. Tripathy, J.
1. Petitioners are the accused persons in I.C.C. No. 5 of 1995 of the Court of S.D.J.M., Deogarh. Opposite party is the complainant in that case. He filed the complaint petition alleging that the accused persons, who are the officers in Power Grid Corporation in its office at Rourkela, with the consent of the opposite party installed Tower Line on the lands of the opposite party with a promise to provide appropriate compensation for the trees which were cut and also promised to provide those timbers with timber transit permit. They cut the standing trees but did not take steps to provide the timber transit permit, as a result of which, petitioners sustained a loss of Rs. 22,000/- (i.e. 20,000 towards the value of the timber and 2,000 towards the emoluments of the watch-man). It is further alleged that they did not pay the appropriate compensation of the trees and when demanded they threatened the opposite party with dire consequences and for initiating false case against him. It is alleged by the opposite party that besides the damage to the property and criminal intimidation, he was cheated by the aforesaid two petitioners. After receipt of the complaint, learned S.D.J.M. recorded the initial statement of the opposite party and thereafter made enquiry Under Section 202, Cr.P.C. During that stage, petitioner examined one witness, viz., Maguni Luhura. Upon perusal of the said statements, on 30.3.1995, learned S.D.J.M. took cognizance of the offence under Sections 418/420/34, IPC and issued process against the petitioners. After receipt of the notice, petitioners did not appear in the Court below on 12.5.1995 and they filed the present application Under Section 482, Cr.P.C. on 10.5.1995 with a prayer to quash the I.C.C. Case No. 5 of 1995 on, the ground that a prima facie case is not made out against them and that on false and frivolous allegations opposite party brought that complaint case against them though the compensation has already been paid. It is further stated by the petitioner that the notice which was served on them was defective inasmuch as in that notice there was no mention as to whether the petitioners have to appear through counsel or in the person.
2. After receipt of the notice, the opposite party did not appear to contest this case. So the petitioner was alone heard.
3. During the course of hearing on 5.1.2000, petitioners filed further document vide a memo. At the outset, it may be noted that copy of those documents were not sent to the opposite party when notice in this case was served on him. In the application Under Section 482, Cr.P.C. no reference has been made to the aforesaid documents which were filed on 5.1.2000. For that reason alone, such documents should not be taken into consideration if at all it affects the rights of the opposite party.
4. Mr. Jagabandhu Sahoo, learned counsel for the petitioners argued that on the face of the aforesaid documents (filed on 5.1.2000) it can be safely concluded that there is total absence of a prima facie case against the petitioner. Notwithstanding the above observation relating to non-consideration of such documents, for the sake of discussion, they are taken-up.
(a) The first document which he has referred to is a judgment of this Court in O.J.C.No. 9457 of 1996, it was decided on 14.5.1998 and reported in AIR 1998 Ori. 171. That was a public interest litigation filed by one Sumanta Kumar Mohapatra claiming himself to be a representative of 200 people of Deogarh. In that case, locus standi of that petitioner was challenged by the opposite party No. 2 on the averments that the petitioner was not authorised by 145 members of so called affected persons. That writ application was dismissed on the ground that it was not a public interest litigation. In that case, the issue raised by the opposite party in the complaint case, was not decided on merit. Hence the said document is of no consequence.
(b) Another document which has been filed is the details of compensation paid to the affected claimants. In serial No. 2, name of the opposite party appears and it is mentioned therein that he was paid Rs. 2774/- (rupees two thousand seven hundred and seventy four) towards compensation on 26.11.1994. The said document does not show any receipt granted by the opposite party. Authenticity of that document is also not substantiated through any affidavit. Apart from that, the aforesaid payment does not falsify the allegations made in the complaint which has been stated at the out-set.
(c) The next document as stated to be a certificate of compensation for Way-Leave and it is stated therein that 74 number of trees were well and left in the possession of the opposite party but no such receipt was granted by the opposite party in the body of such document. No affidavit has been filed with the sworn statement that opposite party put the signature appearing at the left bottom portion of that document.
(d) The next document is an affidavit said to have been made by the opposite party in support of the application for timber transit permit stating therein that he has received full compensation amount and the timber transit permit may be issued in his favour for transportation of trees. No authenticity is attached to the said affidavit inasmuch as petitioners have not stated the source from which they obtained a copy of that affidavit and apart from that they have not filed the link/document i.e. the order on the application for timber transit permit. Thus, that affidavit is of no use at present.
(e) The next document is a copy of Annexure-4 in O.J.C. No. 9457 of 1996, in which it has been shown that 78 number of trees were belonging to the opposite party and that the demand draft No. 729541 was drawn in favour of opposite party on 26.11.1992. The said documents are of no help to hold at this stage that the claim of damage as alleged in the complaint petition was worked out.
5. Learned counsel for the petitioners strenuously argued that to draw the Rourkela-Talcher line which was sanctioned scheme of the Central Government, the Corporation exercised the power available under the Indian Telegraphs Act, 1885 for the purpose of erection and draw of the transmission line and damage caused to the crops or trees fell during the work was adequately compensated. He further stated that according to Sub-section (3) of Section 16 of the Indian Telegraphs Act, 1 885, if any dispute arises concerning the sufficiency of the compensation to be paid Under Section 10, Clause (d) of the Act, such matters should be determined by the District Judge on an application being made to him by either of the disputing parties. He, therefore, argued that filing of the complaint in the aforesaid manner was the mischievous steps taken by the opposite party.
6. It may be noted here that Section 10 of the Act, 1 885 provides ‘power for telegraph authority to maintain telegraph poles and maintain telegraph lines and posts’. It is provided in Clause (d) of the proviso to that section that “in the exercise of the powers conferred by this section the telegraph authority shall do as little damage as possible and, when it has exercised those powers in respect of any property other than that referred to in Claus (c) shall pay full compensation to all persons interested for any damage sustained by them by reason of exercise of those powers” and in that connection, in Sub-section (3) of Section 16, it has been provided that –
“(3) If any dispute arises concerning the sufficiency of the compensation to be paid Under Section 10, Clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.”
Thus, Section 10 provides for compensating for any damage done and Section 16 provides for adjudication of the dispute relating to sufficiency of the compensation. Therefore, if the petitioners would have been aggrieved by the assessment of compensation, he should have referred the dispute to the concerned District Judge for assessment of adequate compensation. But in this case, the opposite party in the complaint, has stated that after felling of the trees, as agreed upon between the complainant and the accused, the timbers were to be delivered to the opposite party after obtaining timber transit permit by the petitioners but in that respect petitioners cheated the opposite party and did not obtain timber transit permit and thereby .allowed those timbers to be destroyed/damaged. Thus, the contention of the petitioner that complaint case is not maintainable in view of provisions of Section 16(3) of the Act, is not sustainable.
7. Learned counsel for the petitioners referring to the aforesaid documents (filed on 5.1.2000) argued that the aforesaid documents prove non-existence of a prima facie case. In that respect, for the reasons recorded in a preceding paragraph, this Court has already indicated the reasons for not entertaining those documents at this stage. Apart from that he challenges the order of cognizance on the basis of such documents when admittedly those documents were not available for consideration by learned S.D.J.M. while taking cognizance of the offences and issued process. On the basis of such documents, which may be their defence plea, accused persons have come forward with application Under Section 482, Cr.P.C. with the prayer to quash the cognizance and to drop the complaint.
8. It may be noted here that in a complaint of the present nature, if a complaint is filed Under Section 200, Cr.P.C. the Magistrate has two recourses, viz., (i) to forward it to a Police Officer for investigation Under Section 156(3), Cr.P.C, which should be done at pre-cognizance stage or while taking cognizance of the offence examine the complainant and his witnesses, if any, and thereafter, if necessary, conduct an inquiry Under Section 202, Cr.P.C. to determine as to against whom process under Section 204, Cr.P.C, should be issued. At that stage, the Magistrate is solely concerned with existence of a prima facie case relating to the offences of which he takes cognizance. In other words, if the materials available in the complaint petition, the statement of complainant and witnesses, if any, and the statements available during the inquiry Under Section 202. Cr.P.C, prima facie satisfy the ingredients of any of the offences, then the Magistrate take cognizance and accordingly issues process against the accused. At that stage, it is not the domain of the Magistrate to think of the possible defence plea and to deal with the case accordingly. Similarly, it is not required for him, at that stage, to travel beyond the acceptable evidence and materials available on the record. When prayer is made to the High Court to invoke the inherent power either to quash the cognizance order or to quash the criminal proceeding, this Court is to see whether the issue of process is an abuse of the process of the Court or non-interference with the order of cognizance will result in failure of justice. At that stage, it is neither required nor desirable for this Court to entertain and accept a possible defence plea and on that basis to quash the cognizance order or the Criminal Proceeding.
8. The aforesaid rigid principle which has the mandate of law in the Code of Criminal Procedure, may cause some harassment to genuine and innocent person who is asked to face a trial but not entertaining his defence plea at the threshold of the criminal proceeding. But that cannot be a good reason to throttle the procedure and principle of criminal law and the jurisprudence thereof in the guise of exercise of power Under Section 482, Cr.P.C. In such a case after termination of the trial in his favour the accused has the remedy of claiming for compensation and damage besides prosecuting an unscrupulous complainant in the Court of law. However, inherent power should be invoked to quash a criminal proceeding or a cognizance order when the allegations available in the complaint and the statements of the complainant and witnesses, if any, do not disclose existence of a prima facie case or that the facts alleged are inherently improbable and not to be accepted or acted upon, and yet cognizance of the offence has been taken.
9. In the case of State of U.P, through C.B.I. S.P.E., Lucknow and Anr. v. R.K. Srivastava and Ors. : AIR 1989 SC 2222 which has been relied upon by the petitioner, it has been propounded by the apex Court that –
“3. It is well settled principle of law that if the allegations made in the FIR are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed…..”
9. If the matter shall be considered keeping in view of the aforesaid principle of law, then whatever has been stated by the petitioners, may be their possible defence plea. Apart from that, for the sake of discussion but not with a view to accept the same, if the documents are considered on their face value, then that goes to show that compensation was determined and paid to the petitioner but those documents do not cover-up the allegations of the opposite party he was cheated by the petitioners in not providing timber transit permit as agreed upon and as a consequence he suffered damage due to the mischief committed by the petitioners. Therefore, the element of cheating and mischief are prima facie available at the stage of taking cognizance so as to issue process Under Section 204, Cr.P.C.
10. Learned counsel for the petitioner did not argue anything challenging the correctness of the cognizance taken for the offences Under Section 506, l.P.C.
11. Though petitioners took the ground that the notice issued to him were unspecific regarding the manner of their appearance but learned counsel for the petitioners during the course of argument did not argue anything in that repsect. On a perusal of the xerox copy of the notice annexed to the petition Under Section 482, Cr.P.C, it is found that petitioners were directed to appear on 1 2.5.1995. When the notice does not indicate that petitioners were to appear through pleader or otherwise, the direction in that notice by necessary and logical implication means for their personal appearance. On the face of it, such a direction is not illegal.
12. For the reasons stated above, this Court does not find any reason to interfere with the order in taking cognizance and issue of processes against the petitioners. Hence the Criminal Misc. Case is dismissed. However, the aforesaid discussions relating to the documents relied upon by the petitioners and the contentions advanced by them are made with a view to dispose of the issue raised by them. At any subsequent stage of the criminal proceeding, the Court below shall not be influenced by the aforesaid dicussions and/or comments and shall decide the case on its own merit and recording the finding independently. Since the petitioners were prosecuting this case and had been granted a stay order by this Court, therefore, if they shall appear in the Court below within fifteen days hence, with a copy of this order, and apply for bail, learned S.D.J.M. may do well to allow them to go on bail on suitable terms and conditions which shall be deemed just and proper.