MITRA SANKAR NANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision is directed against judgment dated 31.8.2002 passed by learned Sessions Judge, Sundargarh in Criminal Appeal No. 1/21 of 2000 confirming the judgment and order dated 29.2.2000 passed by the learned S.D.J.M., Bonai in G.R. Case No. 384 of 1993, corresponding to Gurundia P.S. Case No. 25 of 1993, by which the Petitioner was convicted under Sections 341, 323 and 506(H) of the I.P.C. and sentenced to undergo simple imprisonment for one month under Section 341 of the I.P.C, for three months under Section 323 of the I.P.C. and for six months under Section 506(H) of the I.P.C.

(2.) Informant-P.W.3 was the Block Development Officer (B.D.O.), Gurundia and the Petitioner was working as Police Constable in Gurundia Police Station during the period of occurrence. Prosecution case is that on 23.11.1993 at about 9.30 P.M. P.W.3 heard that the Petitioner was abusing him in a drunken state in filthy and obscene language near his home. When P.W.3 came out from the house and went near the Block Office gate, the Petitioner dragged him to the road, assaulted him, threw him on the road and tried to throttle his neck. The Petitioner also was asking for a Tangia. Some of the Block personnel intervened to bring the occurrence to an end. Finding the Officer-in-Charge absent from the Gurundia Police Station, P.W.3 submitted F.I.R. Ext.1 to Sub-Divisional Police Officer (S.D.P.O.), Bonai. On being directed by the S.D.P.O., Bonai, Circle Inspector of Police, Bonai took up investigation and submitted final report stating the case to be mistake of law. In response to protest petition filed by P.W.3, enquiry under Section 202 of the Code of Criminal Procedure was conducted by the learned S.D.J.M., Bonai and cognizance of offences under Sections 323, 294 and 506 of the I.P.C. was taken. Petitioner took the plea of complete denial. In order to substantiate the case, prosecution examined three witnesses and relied upon F.I.R. Ext.1.P. Ws.1 and 2 were occurrence witnesses. On appraisal of evidence on record, learned S.D.J.M. convicted and sentenced the Petitioner as stated supra.

(3.) It was submitted by the learned Counsel for the Petitioner that from the very beginning the Petitioner assailed his prosecution in the present case on the ground of bar under Section 300 of the Code of Criminal Procedure on the assertion that trial in the present case amounted to double jeopardy. It was submitted that on the basis of allegations arising out of the self-same occurrence, the Petitioner was tried for alleged commission of offences under Sections 160, 341, 323, 324 and 294 of the I.P.C. and acquitted in G.R. Case No. 383 of 1993 in the court of learned S.D.J.M., Bonai. It was strenuously argued that both the learned Courts below failed to appreciate the embargo under Section 300 of the Code of Criminal Procedure It was categorically admitted by the informant-P.W.3 himself in course of his cross-examination that G.R. Case No. 383 of 1993 was also registered for the self-same occurrence. It was further argued that non-examination of the Investigating Police Officer gravely prejudiced the Petitioner. On completion of investigation, final report stating the case to be mistake of law was filed by the Investigating Police Officer on the ground that on the basis of allegations arising out of self-same occurrence Gurundia P.S. Case No. 24 of 1993 had been registered prior to registration of the present case as Gurundia P.S. Case No. 25 of 1993. Confusion, if any, which arose in the mind of both the learned Courts below regarding the cases to have arisen out of the self-same occurrence would have been clarified by the Investigating Police Officer.