HEMANTA KUMAR MOHAPATRA Vs. BINOD BIHARI MOHAPATRA

JUDGEMENT

(1.) The complainant in ICC Case No. 88 of 1981 is the petitioner in this case. The complainant made complaint against 23 accused persons. After the inquiry u/S.202,Cr. P.C., the learned Magistrate directed by his order dated 10-7-84 that cognizance be taken. Notice was issued to all accused persons including Binod Bihari Mohapatra, the present opposite party who appeared in the court and were released on bail. Charge was framed u/S. 342/34, I.P.C. against all the accused persons. While Anadi and Maheswar, two of the accused persons were also charged u/S. 452, 384/34, IPC. By mistake. Binod was not shown in the charge sheet and in place of Binod, the name of Dinabandhu appeared in the charge sheet. The complainant led the evidence and after conclusion of evidence, the case was posted for recording statements of the accused persons. On 17-10-1987 the complainant made a petition before the trial court stating that there was bona fide mistake on the part of the court not showing Binod in the charge sheet. It was alleged that Binod was throughout present in the case and was taking steps on every date subsequent to the charge. The court however, by the impugned order dated 17-10-87 found that oven though prosecution case was closed on 1-8-87 and the case was posted to 21-8-87 for accused statement, the complainant has not pointed out this mistake to the court earlier and law did not permit him to review the order of the Judicial Magistrate, First Class, Bhadrak, his predecessor in office. No objection was filed on behalf of the present opp. party, Binod stating that the inserting of his name in the charge sheet at that belated stage would cause prejudice to him.

(2.) Miss Dipti Mohapatra, the learned advocate appearing for Binod Bihari Mohapatra has urged here for the first time that complaint petition was filed on 30-3-81, charge was framed on 10-7-84, objection of the complainant-petitioner was filed on 9-9-87 and if the petition will be allowed and the charge sheet will be corrected replacing the name of Binod in place of Dinabandhu, her client will be prejudiced.

(3.) In order to appreciate the contention of the learned counsel for both the parties, it is necessary to understand certain facts which are relevant to this case. There was allegation against 23 persons that they had committed the offence u/ Ss. 342/34, IPC. After inquiry u/S.202, Cr. P.C. cognizance was taken against the accused persons and notices were issued to the accused persons including Binod (the present petitioner). All of them appeared in the court and were released on bail on 30-10-81. The petitioner also appeared through his lawyer Sri Tapan Kumar Mohanty and filed his Vekalatnama in favour of the said counsel. The learned counsel Sri Mohanty had also power for other accused persons in that case. On 10-7-84 charges were framed against the accused persons and Binod Bihari Mohapatra was not excluded by the order of the Court. There was nobody by name Dinabandhu mentioned as an accused person in the complaint petition. While drawing the charge sheet against the accused persons, the name of 22 accused persons were correctly mentioned in the charge sheet while by mistake Dinabandhu's name was shown in the charge, sheet in place of Binod. This mistake was not noticed by anybody until 9-9-87, when from the order dated 9-9-87 of the successor in office of the trial court, it transpired that all the accused persons were charged u/S. 384, IPC. except Binod, the present petitioner. The complainant thus came to know that an incorrect name had been shown in the charge sheet as already stated. It maybe stated here that the prosecution case was closed on 18-8-87 and the case was posted to 21-8-87 for accused statement. The order sheet shows that even after the charge, all the accused persons were appearing in the court on every date of hearing and were making petition for representation. In the cross-examination which started on 3-9-85, Binod's lawyer Sri Mohanty had cross-examined the prosecution witnesses and the statements were made by the prosecution witnesses concerning Binod. All these show that even though after the charge on 10-7-84, name of Binod did not find place in the charge sheet and Dinabandhu's name appeared in his place, Binod throughout was with the impression that he was one of the accused persons and was taking stops in the court as an accused person.