STATE OF ORISSA Vs. RABI NAYAK

JUDGEMENT

(1.) THIS application under Section 482, Cr.P.C. has been filed challenging the order dated 11.5.95 passed by the learned S.D.J.M., Jajpur, in G. R. Case No. 548 of 1994 recalling the earlier order dated 22.43.1995 taking cognizance of offence under Section 302 read with other offences of the Penal Code so far as the present opposite party is concerned.

(2.) IT appears from the record that an F.I.R. was lodged by one Kalandi Sethi before the I.I.C, Jajpur police station on 13.6.1994 stating that at about 8 0'clock some accused persons named therein assaulted one Ananta Sethi who succumbed to the injuries due to such assault. On receipt of the F.I.R. Jajpur P.S. Case No. 130/94 was registered for the offences alleged to be committed under Section 147/148/302/325/326/338/307/149 of the Penal Code. Investigation was taken up and on conclusion of investigation charge -sheet was submitted against some accused persons named in the F.I.R. So far as the present opposite party is concerned, the I.O. did not submit any charge sheet Learned S.D.J.M. on perusal of the case diary took cognizance on 22.3.1995 for the offences stated above against the present opposite party also who had not been charge sheeted. Challenging the said order the opposite party approached this Court in Crl. Misc. Case No. 971 of 1995 and this Court while disposing of the said application directed the learned Magistrate to reconsider the order taking cognizance keeping in view the guidelines indicated by the Apex Court in the case of K.M. Mathew v. State of Kerala, (1992) 5 OCR 66. Learned Magistrate in the impugned order on reconsideration of all the materials available on record recalled the earlier order taking cognizance so far as the present opposite party is concerned. The said order is challenged by the State Government in this application.

(3.) FROM the F.I.R. it appears that a specific allegation has been made against the opposite party stating that he assaulted the deceased on his head by means of sword. He also alleged in the F.I.R. that the opposite party instigated other accused persons to assault and kill the deceased. Though such allegations are available in the F.I.R. the informant himself in the statement recorded under Section 161, Cr.P.C. has not whispered about the same. The only material available before the Court is the statement of three witnesses as aforesaid where they have stated that the opposite party instigated other accused persons to assault the deceased. It also appears from the case diary that one Choudhury Gour Sundar Das, working as A.D.M., Jajpur stated during his examination that the opposite party was discussing with him in the morning hour on the alleged date of occurrence and he was also present with the A.D.M. at 10.A.M. and remained with him for about 45 minutes. On consideration of the above contradictory materials available in the case diary the I.O. did not think it proper to submit charge sheet so far as the opposite party is concerned. Taking all the factors into consideration also the learned Magistrate recalled his order dated 22.3.1995.