BIMBADHARA LENKA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The informant in G. R. Case No.13 of 1989 of the court of Judicial Magistrate, First Class, Cuttack which is subject-matter of trial in Sessions Trial No. 218 1990, questions legality of the order passed by the learned Assistant Sessions Judge, Cuttack refusing the prayer to summon Tulu Lenka and Milu Lenka to stand trial.

(2.) The background facts sans unnecessary details are as follows : The petitioner lodged first information report at the Niali Police Station on 8-1-1989 inter alia stating that one Inspector of Supplies had come to village Kapasi to enquire into the allegations made by some of the villagers against one dealer of controlled commodities, namely, Laxmidhar Mohanty. Several witnesses were examined by the said Inspector to ascertain whether they were getting the essential commodities from the dealer regularly. On 6-1-1989 the aforesaid Laxmidhar Mohanty demanded his dues from Prasanna Mohanty and there was verbal altercation between them. On the next day, the said Laxmidhar Mohanty and some of his supporters held a meeting where a decision was taken to assault Prasanna Mohanty. On the date of occurrence, i.e. 8-1-1989 Rama Mohanty and some others went to the house of Prasanna Mohanty and demanded the dues. When Prasanna Mohanty wanted some time to pay the dues, Laxmidhar Mohanty abused one Purna Lenka. The informant went to Rama Mohanty and Laxman Mohanty and questioned why Prasanna was abused. Taking exception Laxman Mohanty, Ram Mohanty, Janu, Mantu, Tulu, Lenka and Milu Lenka and others pelted brick bats at the house of the informant. After some time, Tulu Lenka and Mantu Lenka set fire to one Chakradhar Lenka's house and some others also set fire to the said house. Several persons also set fire to the house of Jogi Lenka. On account of brick batting, several persons received bleeding injuries. One Braja Lenka was given a farsa blow by Bijay Lenka. Obstructions were made when several persons tried to put out the fire. After investigation charge-sheet was submitted under Sections 147/148/436/336/ 337/326/323/149, I.P.C. Cognizance of the aforesaid offences was taken by the learned Judicial Magistrate, First Class, (Rural) Cuttack against 21 accused persons against whom charge-sheet has been submitted. The case was committed to the Court of Session for trial. During the course of trial, an application was filed to summon Tulu Lenka and Milu Lenka to face trial on the ground that the evidence of P.Ws. 2 and 3 is closed, the role played by the aforesaid two persons in setting fire to the house of Chakradhar Lenka and Tribakar Lenka. The motion was resisted by the accused persons on the ground that the application was not maintainable in law as there was no material to summon the aforesaid two persons. Reference was made to the first information report lodged by the petitioner, wherein it was stated that Tulu Lenka and Milu Lenka along with Janu Lenka and others pelted brick bats to the house of Bimbadhar Lenka, the petitioner, Initially the informant-petitioner did not implicate Tulu Lenka and Milu Lenka in the alleged arson, and the only allegation made against them in the FIR was that they had pelted brick bats. The evidence of the informant-petitioner who was examined as P.W. 1 was also referred to. His evidence was only to the effect that the aforesaid Tulu and Milu along with others raised a cry to assault.

(3.) The learned trial judge analysed the evidence of P.W. 1 and observed that the informant petitioner had not implicated Milu and Tulu in the offence of arson, though P.Ws.2 and 3 had implicated the aforesaid Tulu and Milu in the offence of arson, and P,W. 4's evidence was to the effect that Tulu and Milu set fire to the house by using burning cycle tyres. The learned trial Judge found that the informant-petitioner had not implicated Tulu and Milu in the offence of arson in the FIR. P.Ws. 6, 7, 9, 11 and 12 did not implicate Milu and Tulu in their evidence. According to the prosecution, in any event an offence under Section 337, I.P.C. was clearly made out against accused Milu and Tulu. The learned trial Judge found that P.Ws. 4, 5 and 6 did not state about pelting of brick bats. He made reference to the case diary, particularly statements of Bishnu Ch. Sahu, Asst. Teacher of Pahanga School wherein it was stated that at the relevant time Milu was reading in Pahanga School and had not left the hostel either with the permission or without permission on 8-1-1989. With reference to the statements of two other persons namely Manas Ranjan Naik and Umasankar Naik it was observed that Tulu was reading in Niali College with them and was remaining with them in a mess in the year 1989. From this learned trial Judge concluded that Milu and Tulu could not have been at the alleged place of occurrence. Accordingly he rejected the motion for issue of summons to Milu Lenka and Tulu Lenka. The learned Counsel for petitioner submitted that the approach of the learned trial Judge is erroneous and goes against the very purpose for which Section 319 of the Code of Criminal Procedure, 1973 (in short, the 'Code) was enacted. In spite of notice, there is no appearance on behalf of Milu Lenka and Tulu Lenka . 4. Section 319 of the Code corresponds to Section 351 of the repealed Code of Criminal Procedure, 1898 (in short, the old Code).