RICHITRA KUMAR SAHU AND ORS. Vs. SABITRI KARAN

JUDGEMENT

(1.) FOUR out of five accused persons in I.C.C. No. 10 of 1994 of the Court of J.M.F.C., Baramba have filed this application under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code') with the prayer to quash the order dated 30.6.1997. The complainant is the opposite party in the present case.

(2.) OPPOSITE party filed a complaint which was registered as I.C.C. No. 10 of 1994 in the Court of J.M.F.C., Baramba in which the present Petitioners figure as accused persons. In that complaint, the complainant alleged that at about 2 A.M. on 24.1.1994 the accused persons trespassed into her house, searched for her husband, accused Sachidananda intimidated her by show of knife, accused Bichitra snatched away the gold necklace from her neck and they also removed a cash of Rs. 1 200/ -. The complainant also alleged that on 24.1. 1 994 she reported the matter before the police, but no action was taken, for which he filed the complaint on 31.1.1 994. Learned Magistrate undertook an enquiry under Section 202 of the Code and on 28.1 1.1 994 passed order issuing process against the Petitioners and the co -accused persons having taken cognizance of the offence under Section 395, I.P.C. Petitioners challenged that order in this Court in Criminal Misc. Case No. 2449 of 1 994. Two contentions were raised at that stage, viz., (i) the mandatory provision in Section 2] 0 was not followed; and (ii) the enquiry conducted by the Magistrate was not in conformity with the provision in the proviso to Sub -section (2) of Section 202 of the Code. On 12th December, 1996 this Court disposed of that Criminal Misc. Case with the findings that since the complainant had explained in the complaint that due to inaction of the police she had to file the complaint, therefore, non -compliance of Section 210 is not sufficient to invalidate the order of cognizance and issue of process. On the second contention, this Court observed that:

(3.) LEARNED Counsel for the Petitioners states that the allegation in the complaint and the statements of the witnesses did not show that accused persons committed dacoit, inasmuch as it is accused Bichitra, as alleged, snatched away the gold necklace. In the absence of any evidence that the other accused persons have shared the common intention or the common object with the said accused for removal of such movables, an offence punishable under Section 395, I.P.C. is not made out. Accordingly, the Petitioners argued to quash the order of cognizance under Section 395, I.P.C.