KELU CHARAN SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE applications under Section 482 Cr.P.C. have been filed challenging the order dated 2.3.94 passed by the learned Judicial Magistrate First Class, Laxmipur taking cognizance of offence under Section 201 of the Indian Penal code against the petitioners in both cases.

(2.) MR . Dhal appearing for the petitioners submitted that the facts and circumstances on the basis of which the impugned order has been passed has no basis and on the other hand there is an admission on the part of the informant with regard to non -involvement of the principal accused in the alleged offence. Therefore, when the order of cognizance under Section 379 of the Indian Penal Code against the principal accused cannot stand the Magistrate could not have taken cognizance under Section 201 I.P.C. against the present petitioners. From the record, it appears that on the basis of information lodged by the informant Madhusudan Nayak investigation was taken up. The allegation in the F.I.R. is that the informant is a contractor and he had been supplied with 4 numbers of hume pipes from the block office and he had kept them in the field of Kakiriguma High School. On 23.4.93 at about 3.00 P.M., a tractor with a trolley without having any registration number were found carrying the hume pipes and immediately information was lodged and the hume pipes were seized by the police in course of investigation. After investigation final report was submitted stating that the allegations are false and frivolous. Even though final report was submitted the learned Magistrate took cognizance of the offence under Section 379 I.P.C. against one Jhadeswar Nayak. During trial, the informant was examined as P.W. 1. In his examination he has stated that on the date of occurrence at about 6.00 P.M. in the evening the petitioners in both the cases asked him to sign a receipt in back date showing that the hume pipes had been handed over to them. Though initially the informant refused to sign, he was forced to do so and since he was working -as a contractor under the aforesaid two persons, he had signed the document under pressure. Taking these facts into consideration, the learned Magistrate took cognizance of the offence under Section 201 I.P.C. against the present petitioners in the impugned order.

(3.) FROM the evidence of the informant it appears that in cross -examination he had stated that at the time of occurrence, the tractor was being driven by one Janardan Naidu and two other persons, namely, Diso Muduli and Gangadhar Bisoi were also the occupants of the said tractor. The accused Jhadeswar was not present either in the tractor or near that place and that the accused was not taking hume pipes. The learned Magistrate has not taken cognizance against the three persons, namely, Janardan Naidu, Diso Muduli and Gangadhar Bisoi, who were the occupants of the tractor, whereas he has taken cognizance under Section 201 I.P.C. against the present petitioners.