PRASANTA KUMAR MOHAPATRA Vs. NILAKANTHA RATH

JUDGEMENT

(1.) - Heard learned Counsel for the petitioner. The opposite party has not entered appearance after service of notice.

(2.) Petitioner is the complainant in I.C.C. No. 175, of 1991 pending in the Court of Judicial Magistrate First Class, Khurda. On 11-10-1991 he filed a complaint petition alleging commission of offences under Sections 427/448, IPC against the opposite party members who were the accused persons in that case. In the complaint/petition, petitioner has stated that because of the demolition of the compound wall, complainant sustained a loss of Rs, 2,000/- (two thousand). In his initial statement, however, petitioner did not state the amount of loss which he sustained. On 28-lO- 1991, the S.D.J.M. after perusing the complaint-petition and initial statement of the complainant took cognizance of the offences under Sections 426/34, IPC. Thereafter, the accused appeared, accusation was explained to him as per the summons procedure and trial taken up. During the midst of the trial when three witnesses were examined which includes the complainant, his father, and one Sudarsan Baliar Singh, petitioner filed an application to alter the charge from under Section 426 to Section 427, IPC. Learned Magistrate vide the impugned order dated 17-3-1994 rejected that petition on the ground that in a case governed by the summons procedure, since charge is not being framed, taking cognizance of the offence under Section 427, IPC at such belated stage is not permissible under law. The other part of the impugned order in which learned Magistrate refused to exhibit the document is, .however, not challenged in this revision and nothing is argued in that respect.

(3.) Learned Counsel for the petitioner argues that the aforesaid view expressed by the learned Magistrate regarding legal impermissibility to change the offence is itself incorrect. He adds, complainant suffer prejudice, if cognizance of the offence under Section 427, IPC, shall not be taken and explained to the accused. In that connection, he states that in the complaint, it has been specifically mentioned that due to the mischief committed by the accused complainant suffered a damage of Rs. 2,000/- and therefore with due reference to the facts alleged cognizance of the offence under Section 427, IPC should have been taken.