STATE OF ORISSA Vs. MANGULI SAHU

JUDGEMENT

(1.) THIS is an appeal under Section 417(1), Criminal Procedure' Code against the order of acquittal passed by the Sub -Divisional Magistrate, Athagarh in G.R. Case No. 146/69.

(2.) THE prosecution case, in short, is that while PWs. 1, 2 and 4 and some other constables attached to the Tigiria police station were on patrol duty in the night of 13 -9 -1969, at about 2.30 A.M. in the night they saw two persons going towards Nuapatna on cycles carrying something in gunny bags. The constables chased them, and they could catch hold of only one of them, i.e., the accused in this case, and they found that the gunny bag in his possession contained five bundles of telegraph wire. P. ws. 3 and 5, who happened to pass on the way at that time, also saw that the accused then was in possession of the said telegraph wire. The accused was taken to the police station, the copper wire in his possession weighing Kg. 25.100 grams was seized by P.W. 7, the Officer -in -charge of the Tigiria Police station and investigation started on the F.I.R. lodged by P.W. 1. These telegraph wires were sent to P.W. 6, the local E.S.T. for examination, and he after examination reported, as per ext. 2, that the said copper wires come within the definition of the words "telegraph wire" contained in Section 2 of the Telegraph Wires (Unlawful Possession) Act, 1950 (hereinafter referred to as the' Act') and that those wires were being used by the Posts and Telegraphs Department. Thereafter the charge sheet was submitted by the police and on the said charge sheet the accused was prosecuted only for offence under Section 5 of the Act.

(3.) THE Court below on the evidence on record arrived at the findings that the copper wires seized in this case were "telegraph wire" as defined under Section 2 of the Act; and that the accused was illegally in possession of the same. But it acquitted the accused on the finding that no 'complaint' by the proper person, as contemplated under Section 7 of the Act, was filed in this case, and so the Court was not at all competent to take cognizance of the offence under Section 5 of the Act of which the accused was charged, and so the trial of the case was vitiated. Against the said order of acquittal the State has preferred this appeal.