STATE Vs. GUNDICHA BHOI

JUDGEMENT

(1.) THIS is a reference under Section 438 of the Code of Cr. procedure by the learned Session Judge, Puri, recommending to quash the commitment made by the Magistrate, 1st Class, in G. R. Case No. 695/60. The main ground for this reference appears to be a decision of this Court in the case of State v. Anadi, ILR 1958 Cut 89 : (AIR 1958 Orissa 241 ). It was decided in that case that the magistrate had committed a serious illegality when there were witnesses to the actual commission of the offence arid they had not been examined by him under section 207a (4) of the Code of Criminal Procedure before commencing the enquiry. It was further observed that without examining any witness during the commitment enquiry, the Magistrate examined the accused persons under Section 342 of the Code of Criminal Procedure. Sub-section (6) of Section 207-A of the code says that such examination of the accused should be made for the purposes of enabling him to explain any circumstances appearing in the evidence against him. Statement made before the police officer during investigation is not evidence, and unless independent evidence is taken against him before the committing Magistrate, It would not be proper for the Magistrate to examine him, under section 342 and question him about the materials collected during the police investigation. The accused is bound to be prejudiced by such examination.

(2.) THE prosecution, case was that the deceased persons, Bana Bhoi and Naran bhoi used to work in the disputed garden, as labourers under Sashimani Dei. On august 25, 1960, one Mangulia Bhoi, father-in-law of the deceased Naran Bhoi ploughed a portion of that garden and when fie was returning at about 4 P. M. the accused challenged him and also gave a lathi blow on his right hand causing fracture. When he raised an alarm, the deceased Bana and Naran who ran from the nearby field challenged the accused as to why he beat Mangulia Bhoi. Then all the eight accused persons surrounded them and beat them mercilessly with lathis even after they fell down senseless. Some persons who came to intervene were also assaulted by one or more of the accused persons. The deceased persons Bana and Naran were then taken to Balanga dispensary, where Naran expired the same night and Bana expired on the next morning. On these allegations, the eight accused persons were charge-sheeted by the Police under Sections 302/149 and, 323/149, 147 and 325 of the Indian penal Code. The learned Magistrate examined five witnesses out of whom two were eye-witnesses to the occurrence, although six witnesses were mentioned in the first information report. The learned Magistrate having believed the evidence of these witnesses came to the conclusion that there was a prima facie case against all the accused persons and accordingly she charged them as stated above, and submitted the records to the Court of Session for trial.

(3.) THE learned Sessions Judge while making the reference to this Court seems to think that all the six witnesses to the occurrence should have been examined by the learned Magistrate before she could commit them for trial by the Sessions court relying upon a decision of this Court as referred to above.