STATE OF ORISSA Vs. ORIA SAMA MAJHI

JUDGEMENT

(1.) This is an appeal by the State of Orissa Against an order of acquittal recorded by the Learned Sessions Judge, Mayurbhanj, in a case arising under Schedule 88 Penal Code.

(2.) The case for the prosecution is that the accused Oriya Sama Majhi disobeyed an order under Schedule 44 criminal P. C. promulgated on 5-2-49, in the Bamangati Subdivision of Mayurbhanj District, prohibiting the residents there in from carrying bows and arrows or any deadly weapons. It is alleged that the accused was moving about on 31-3-49 in his village, Maranda, with a bow, arrows, and a sword shouting that he would kill his enemies with, these weapons. The order under Schedule 44 was duly promulgated on 5-2-49, and it is proved that the accused had knowledge of the ban imposed under this order. The trying magistrate recorded a finding that the accused intentionally disobeyed the order and that the disobedience caused danger to human life and safety. He accordingly convicted the accused of an offence under Schedule 88, Penal Code and sentenced him to undergo rigorous imprisonment for four months and to pay a fine of Rs. 100/-, in default, to undergo r.gorous imprisonment for one month more. The learned Sessions Judge, Mayurbhanj, who heard the appeal against this conviction, while agreeing with the trial Court on his finding of facts held that the prosecution was defective and that the Magistrate had no jurisdiction to take cognizance of an offence under Schedule 88, Penal Code without a complaint in writing by the Subdivisional Magistrate who passed the order under Schedule 44 Criminal P.C. as required by Section 195 (1) (c), He accordingly directed the accused to be acquitted on the ground that prosecution was incompetent.

(3.) The question that falls to be determined is whether Schedule 95 (1) (a) applies to the facts of this case. An offence under Schedule 88 Penal Code was non-cognizable and nonbailable by a notification of the State Government in exercise of the powers conferred on them by Schedule 0 (1), Criminal Law Amendment Act, 1932 (XXIII (23) of 1932). Section 10(1) provides: