DAMODAR SAHU Vs. KULAMANI BEHERA

JUDGEMENT

(1.) THIS petition is directed against the cognizance taken by the learned Sub -Divisional Judicial Magistrate, Puri, Under Section 436, IPC against the petitioner. The short facts are that the opposite party who has not appeared in spite of notice, had lodged an information in the Pipili Police Station of the petitioner and 10 others having committed offences Under Sections 148, 427 and 436 read with Section 149, IPC inasmuch as they, armed with deadly weapons, had entered his land, cut down a number of trees and had set fire to the house. After investigation the police submitted final report on 1 -7 -1987 which was accepted by the learned Magistrate on 30 -8 -1987. Thereafter the opposite party filed a complaint on 15 -11 -1987 against the petitioner and twelve others. The complaint was registered as ICC Case No. 191 of 1987. After initial statement of the petitioner was recorded, the learned Magistrate on perusal of the case diary and police report directed the opposite party to produce his witnesses on 4 -7 -1989. On 28 -7 -1989 and 10 -8 -1989 he examined four witnesses, two on each date and took cognizance Under Section 486, lPC against the petitioner on 17 -8 -1989.

(2.) MR . Dhal, the learned counsel for the petitioner raised the contention that since in the complaint petition ten witnesses had been cited, the opposite party was under an obligation to examine all the witnesses as the case was one exclusively triable by the Court of Session and that the opposite party not having examined himself, the order of taking cognizance is illegal.

(3.) IN that view of the matter, this petition is allowed and the order taking cognizance against the petitioner is quashed. The case is remitted to the Court of the learned Magistrate to give opportunity to the opposite party to examine himself and either to examine the other witnesses or give declaration of having examined all his witnesses, and proceed in the matter of taking cognizance. The LCR be sent back forth with.