DAMODAR LENKA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Challenging the order dated 22.7.2004 passed by the learned S.D.J.M., Nilgiri in G.R.Case No. 194 of 2002 under Annexure-3 dismissing the protests petition filed by the petitioner under Section 203, Cr.P.C. and confirmation thereof made by the learned Sessions Judge, Balasore on 12.10.2004 in Crl.Revision Petition No. 101 of 2004 under Annexure-4, the complainant-petitioner has filed this application under Section 482, Cr.P.C.

(2.) Facts of the case are that the complainant-petitioner initially lodged an F.I.R. in Nilgiri Police Station on 8.4.2001 against opposite parties 2 to 5 for commission of offences under Sections 323, 324, 341, 342, 363, 364, 384, 506, 120-B, 467, 468/34, IPC. Since no action was taken by the police, a copy of the said F.I.R. was also sent to the Superintendent of Police, Balasore on 26.4.2001. However, since it yielded no fruitful result, finding no other alternative, the complainant-petitioner filed a complaint case bearing ICC No. 87 of 2001 before the learned S.D.J.M., Nilgiri, which was sent to Nilgiri Police Station under Section 156(3), Cr.P.C. Accordingly, P.S.Case No. 127 of 2002, corresponding to G.R.Case No. 194 of 2002 of the file of learned S.D.J.M., Nilgiri was registered under Sections 341, 323,365, 467, 506, IPC. The police after completion of investigation, submitted final report. On being noticed, the petitioner filed a protest petition on 25.7.2003 against the final report, on the basis of which, enquiry under Section 202, Cr.P.C. was conducted by the learned S.D.J.M., Nilgiri. In course of enquiry, not only initial statement of the complainant-petitioner was recorded, but also six witnesses were examined on behalf of him. The averments made in the complaint petition were corroborated by the initial statement of the petitioner as well as the statement of the witnesses examined during the enquiry under Section 202, Cr.P.C. On a reading of the entire statement, prima facie case under Sections 341, 323, 465, 467, 506/34, IPC is alleged to have been established.

(3.) Learned S.D.J.M., Nilgiri dismissed the complaint petition under Section 203, Cr.P.C. on the ground that the witnesses examined by the petitioner during enquiry under Section 202, Cr.P.C. have not witnessed the incident of confinement and assault or taking signature of the complainant on blank papers and accordingly, no prima facie material in respect of the offence is made available. Learned counsel for the petitioner submitted that not only in the complaint petition but also the initial statement recorded under Section 202, Cr.P.C. clearly makes out a cognizable case. Similarly, two of the witnesses, namely, P.Ws.2 and 3 have stated that they have seen the accused Purna in the company of the complainant in a cycle and the other witnesses have stated about the disclosure of the petitioner before them about the incident, which is also admissible as res gestae under Section 6 of the Evidence Act. In view of such position, it cannot be said that there is no prima facie material in respect of the offence. But the revisional court in absence of the counsel for the petitioner, dismissed the petition at the stage of admission without considering the contentions raised in the revision petition.