DIBAKAR SINGH Vs. BIRAKISHORE JARIKA

JUDGEMENT

(1.) THE petitioners call in question the order dated 28.5.1994 of the learned Chief Judicial Magistrate, Baripada in I.C.C. Case No.19 of 1995 (T.C. Case No.211/1995) of the learned Sub -Divisional Judicial Magistrate, Udala taking cognizance of the offences and in issuing process against the petitioners.

(2.) THE short fact bereft of unnecessary details is that one Bira Kishore Jarika, the brother of alleged victim Jambi Jarika lodged a complaint in the Court of the learned Chief Judicial Magistrate, Baripada against the present petitioners, who are the Officer -in -charge and A.S.I. of Sarat P.S. under Sections 452/323/376/34, I.P.C. and the case was registered as I.C.C. Case No.325 of 1993. The learned Chief Judicial Magistrate recorded the initial statement of the complainant on 5.4.1994 and 9.4.1994 under Section 200, Cr.P.C. and took cognizance of offences under Sections 457/376, I.P.C. by order dated 28.5.1994, whereafter he proceeded to examine other witnesses under Section 202 (2) Cr.P.C. since he was of the opinion that the case was triable by the Court of Session. The case was then transferred to the Court of the learned S.D.J.M., Udala, which was again registered as I.C.C. Case No.19 of 1995. Summons were issued for appearance.

(3.) THE order -sheet disclosed that the learned Chief Judicial Magistrate in his order dated 28.5.1994 took cognizance of the offences under Section 457/376 of the Indian Penal Code as against both the accused -petitioner. By order of the same date, the Magistrate being of the opinion that this is a case exclusively triable by the Court of Session, directed the complainant to produce all his witnesses on 30.8.1994 as required under proviso to Sub -section (2) of Section 202. The learned Chief Judicial Magistrate thereafter examined the witnesses. However, by order dated 30.8.1994, after examination of all the witnesses produced by the complainant, the learned Magistrate called for the Station Diary Entry dated 12.9.1994 for better appreciation of the case. The case was adjourned from time to time for non -receipt of the Station Diary Entry. It appears from the order dated 7.3.1995 that on reports received, the learned Magistrate recorded a note that the Station Diary Book is not available. But, however, in second paragraph of the aforesaid order, the learned Magistrate has recorded as follows : "On perusal of the record, it is found that this case comes under the jurisdiction of S.D.J.M., Udala. Hence, this case is transferred to the file of S.D.J.M., Udala for disposal according to law. Intimate the Advocate of the complainant to appear in the Court of S.D.J.M., Udala on 20.3.1995." The case record was put up before the learned S.D.J.M. on 10.3.1995 on transfer from the Court of the learned C.J.M., Mayurbhanj. The learned S.D.J.M., in his order dated 13.4.1985, observed that the C.J.M., Mayurbhanj, Baripada has already taken cognizance under Section 457/375, I.P.C. against both the accused persons and hence issued summons to the accused persons and directed the complainant to file requisites and when the matter stood thus, by the next date fixed to 31.10.1995, the learned Magistrate received intimation regarding the stay of further proceeding of the case. Interestingly, the learned C.J.M. appears to have entertained the complaint petition recorded initial statement, took cognizance, directed for production of all the witnesses, prima facie, it having appeared to him that the case is exclusively triable by the Court of Session, called upon the complainant to produce all his witnesses, examined the witnesses before issuance of process and even then not being satisfied wanted to verify the Station Diary. But, however, the Station Diary was not available on some plea or other and without taking any further steps to procure the Station Diary abruptly, at this stage observed that this case is within the jurisdiction of the S.D.J.M., Udala and, therefore, transferred the case. If the learned Chief Judicial Magistrate was of the opinion that this is a case within the jurisdiction of the learned S.D.J.M., Udala, there was no reason, why he thought of entertaining the complaint doing the entire exercise of taking initial statement and recording statement under Section 202, Cr.P.C. and then due to non -availability of the Station Dairy, transferred the matter to the S.D.J.M. on the plea that the case is within the jurisdiction of the learned S.D.J.M. I am not able to appreciate why the learned Chief Judicial Magistrate has conducted the case and transferred the matter to the Court of the learned S.D.J.M.