AHALYA PAIKARAI Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order of the learned Judicial Magistrate, first class, Banpur, refusing to accept the prayer of the petitioner, who happened to be the informant in G.R. Case No. 12 of 1991 to proceed against the opposite party Nos. 2 and 3, is the subject-matter of challenge.

(2.) A brief reference to the factual position is necessary. On 8.1.1991 the petitioner filed a written report before the Officer-in-charge of Nachuni Police Outpost alleging commission of offence punishable under section 486 read section 34, Indian Penal Code, 1860 (in short, I.P.C.). It was indicated in the report that on the previous night, the opposite party Nos. 2 and 3 set fire to her residential house which act was witnessed by Bhikari Martha Bijaya Paikray. Investigation was undertaken by Police. A report was submitted after investigation before the learned Judicial Magistrate, first class, to the effect that there was no material to show involvement of opposite party Nos. 2 and 3. An application was filed by the informant to take cognizance of the offence punishable under section 486 read with section 84, and to proceed against opposite party Nos. 2 and 3. With reference to the statement of the informant and the witnesses recorded under section 164, Code of Criminal Procedure, 1973 (in short, the Code) and the statements recorded under section 161 of the Code it was submitted that prima facie case was revealed against the opposite party Nos. 2 and 3. The learned Judicial Magistrate rejected the prayer being of the view that relevant materials were absent in the statements recorded under section 164 of the Code vis-a-vis the first information report. It was observed that informant's silence about witnesses implicating accused-opp. party Nos. 2 and 3, clearly ruled out involvement of opposite party Nos. 2 and 3. The material particulars as indicated in the first information report were totally absent in the statements of the witnesses recorded under section 164 of the Code. Accordingly, the prayer was refused and the final report submitted by the Police was accepted.

(3.) The learned counsel for the petitioner submits that at the stage of taking cognizance an elaborate analysis of the fact situation is not warranted. The Court was required to see whether materials existed to primafacie show commission of an offence. It is stated that a conjoint reading of the statements recorded and the first information report clearly reveals the commission of offence, and therefore, the order of the learned J.M.P.C. is indefensible. Shri B. Pujari, learned counsel appearing for opposite party Nos. 2 and 3 by way of reply submits that broad probabilities of the case have to be considered and where the allegations accepted in toto do not make out an offence, the Magistrate can refuse 10 take cognizance. According 10 him, the informant herself in the statement recorded under section 164 of the Code, has not implicated the accused-opposite party Nos. 2 and 3, and therefore the learned J.M.P.C. was justified in rejecting the prayer to take cognizance of the offence under section 436/34, I.P.C.