MANABENDRA MOHARATHA ALIAS MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure has been filed with a prayer to quash the order of cognizance dated 25.9.97 taken against the petitioner by the J.M.F.C., Banpur in G.R.Case No. 57 of 1994.

(2.) THE brief facts leading to this application are that one Narasingh Naik lodged an FIR on 11.3.1994 before the Banpur Police Station alleging therein that on the same day at about 5 p.m. while he was returning home alongwith his son -Laxman Naik from Barpatna Jagar Mela, near Gambhari Munda Society Office, the present petitioner instigated some other accused persons to finish Laxman Naik. It is alleged that the informant and his son were chased by the accused persons and were assaulted by means of Lathi resulting in the death of Laxman Naik, the son of the informant. On the basis of the FIR, investigation was done and ultimately charge sheet was submitted under Sections 302/34 of Indian Penal Code (in short, 'IPC') against six accused persons but the name of the petitioner was not there in the charge sheet. After receiving the charge sheet, the J.M.F.C., Banpur on perusing the statement under Section 164, Cr.P.C. of opposite parties 2 and 3, namely, Surendra Martha and Bhikari Martha respectively, in his order dated 20.4.95 observed that though a prima facie case under Sections 302/34, IPC had been made out against the present petitioner, the Investigating Officer did not charge sheet him on the ground that there was no credible evidence. Accordingly the J.M.F.C. took cognizance of the said offences against the present petitioner along with others.

(3.) ACCORDING to the learned counsel for the petitioner, the statements recorded under Sections 161 and 164 of Cr.P.C. are contradictory to each other and no credible evidence is available to proceed against the petitioner. The further case of the petitioner is that the J.M.F.C. being the committal Court has no jurisdiction to take cognizance against the present petitioner as the case is triable by a Court of Session and the trial Court is only empowered to take cognizance and issue summons against those persons where complicity is found prima facie from the materials on record. On the aforesaid grounds the petitioner prays to quash the order of cognizance.