KALANDI CHANDRA PARIDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision is directed against the order dated 31-10-2003 passed by the learned S.D.J.M,, Kamakshyanagar in G. R. case No. 256 of 2003 taking cognizance of offence under Section 302/34 of the Penal Code against the present petitioners.

(2.) One Sudasa Parida, wife of the deceased lodged an F.I.R. on 27-6-2003 alleging therein that she along with her deceased husband had gone to Kundanali Chhak for work. The accused persons were working in their field where there was some altercation between the accused persons and the deceased husband of the informant and the accused persons threatened to kill him. Previous to that incident also two of the accused persons had complained against the informant and her deceased husband before the Panchayat and much prior to the date of occurrence the accused perspns had also threatened to kill the deceased husband of the informant. On the date of occurrence the informant had gone to the Panchayat Office and found the same to be locked. When she was searching for her husband, she saw him lying near the cow-shed of one Manua Parida and also saw some of the accused persons assaulting her husband. When she shouted, it is alleged that all the accused persons ran away from the spot. On the basis of such allegation investigation was taken up and charge-sheet was submitted against the accused Chihuru Parida. Tirtha Parida, Susha alias Sushanta Parida, Lali Mohan Parida and Muhulia alias Madhab Parida. So far as the present petitioners are concerned, charge sheet was not submitted. However, the learned Magistrate on perusal of 161 statements of the informant observed that the present petitioners have also participated in commission of the offence and took cognizance accordingly.

(3.) Shri Panda, learned counsel appearing for the petitioners submitted that the informant was examined twice by two different Investigating Officers and on both the occasions she has not stated to have seen the occurrence, but in her statement it is alleged that near the place of occurrence she found the deceased lying and some of the accused persons running away from the spot. There is no other evidence in the case diary to show that the petitioners have participated in commission of the offence as alleged and, therefore, the I.O. in absence of any material rightly did not submit the charge sheet against the petitioners. The learned counsel further challenged the impugned order on the ground that since the offence is triable -by the Court of Session, the learned Magistrate had no jurisdiction to take cognizance of the offence in respect of the accused persons who have not been charge sheeted. The learned Additional Standing Counsel on the other hand, referring to the case diary submitted that there are some materials against the petitioners to connect with the offence and in view of Section 34 of the Penal Code even if the contention of the learned counsel for the petitioners is accepted, they are liable for commission of the offence.