Allowed

Udaya Ku.Mehera v. State

Orissa HC23 Apr 2018CRLMC/2012/2008

Case brief

AI extract

What is this about?

Allowed a quashing petition under Section 482 Cr.P.C. held that the Magistrate illegally took cognizance and issued process based merely on suspicion. The Court found no prima facie case as the paddy was transported for milling with Collector's findings.

What did the court decide?

The application under Section 482 Cr.P.C. was allowed; the order of taking cognizance and issuance of process were quashed.

Udaya Ku.Mehera Vs State — Quashing and FIR | Orissa HC (2018)

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CRLMC No.2012 of 2008

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23.04.2018 Mr. H.S. Mishra, learned counsel for the petitioners submits that he has already filed Vakalantama but that is not available on record.

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Registry is directed to trace out the Vakalatnama and tag with the record. Name of Mr. H.S. Mishra be reflected in the cause list as well as in the brief henceforth as learned counsel for the petitioners.

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Heard Mr. H.S. Mishra, learned counsel for the petitioners and learned Additional Standing Counsel. None appears on behalf of opposite party no.2 in spite of the valid service of notice.

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This is an application under Section 482 Cr.P.C. to quash the order of taking cognizance dated 18.01.2008 passed by the learned J.M.F.C., Loisingha in G.R. Case No.3 of 2007 for the offence under Section 7 of E.C. Act (hereinafter referred “the Act”) read with Section 109 of IPC and issuance of process against the petitioners.

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Mr. Mishra, learned counsel for the petitioners submits that the petitioners have been falsely implicated in this case. They are bringing the rice bags from the F.C.I. and other farmers as they have the license for milling of the same at Utkal Rice Mill, Cherupalli. According to him, the truck was carrying 350 bags of paddy but in fact the police has seized 320 bags. The Collector, Bolangir in the proceeding under Section 6(A) of the E.C. Act has clearly observed that this paddy bags were procured from the F.C.I. and other farmers for milling of the same. Although the driver has not possessed the way bill and transit permit but there is no offence made out, learned Magistrate has not applied its judicial mind to the facts of the case and illegally took cognizance of the offence under Section 7 of the Act read with Section 109 of IPC and issued process against the petitioners. So, he prayed to quash the

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order of taking cognizance and issue of process against the petitioners.

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Learned Additional Standing Counsel submits that since the driver failed to submit the appropriate way bill and transit permit, it cannot be said that no offence is made out. So, he supports the impugned order passed by the learned Magistrate.

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Considered the submissions of the learned counsel for the respective parties. The original L.C.R. is called for. From the original L.C.R., it is made clear that the police out of suspicion has stopped the truck in question and found that it was carrying 320 bags of paddy. The driver could not account for same resulting seizure of same. The entire record shows that only out of suspicion, the said paddy has been seized. The order of the Collector, Bolangir is clear enough to show that the paddy being transported after being collected from the F.C.I. and other farmers to Utkal Roller Flour Mill, Cherupalli for milling. According to him, the paddy was never being transported without any authority. So, he did not find any merit with the allegation and finally has already released the seized paddy.

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Thus, the paddy has been seized out of suspicion and suspicion cannot be substitute for the legal proof. In view of the observation of the Collector, Bolangir and the material available in the LCR no prima facie case is made out against the petitioners. Hence, the learned Magistrate failed to apply his judicial mind to the facts of the case and illegally took cognizance of the offence under Section 7 of the Act read with Section 109 of IPC. Since the order of taking cognizance and further proceeding are abuse of process of the Court, the petition under Section 482 Cr.P.C. is allowed.

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The interim order passed earlier stands vacated.

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The CRLMC is disposed of accordingly.

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The L.C.R. and copy of this order be sent to the learned court below for necessary action.

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Urgent certified copy of this order be granted on proper application.

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Dr.D.P.Choudhury, J.

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Udaya Ku.Mehera v. State

Case brief

What is this about?

What did the court decide?

Udaya Ku.Mehera v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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