ARJUN ROUT Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order dated 12.08.2004 passed by the J.M.F.C. Nimapara in G.R. Case No. 374/54 of 1996. In the said G.R. Case, a petition was filed with a prayer to recall the orders.dated 13.11.1997 and 27.11.2001 taking cognizance of the offences under Sections 341/323/294/34 IPC and to drop the proceeding against the petitioners. By the impugned order, however, the learned Magistrate refused to grant such prayer.

(2.) THE case of the petitioners is that the occurrence took place on 17.04.1996 and charge sheet was filed on 13.11.1997. The Special Judge, Puri took cognizance of the offences under Sections 341/323/294/34 IPC read with Section 3 of S.C. and S.T. (P.A) Act vide order dated 13.11.1997. On 20.12.2000, the learned Special Judge made over the case to the J.M.F.C. Nimapara to proceed with the same in accordance with law in view of the ratio decided in Gangula Ashok v. State of Andhra Pradesh 2000 (18) OCR 364 (SC). On 27.11.2001, the learned J.M.F.C. again took cognizance under Sections 341/323/294/34 IPC read with Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and issued process against the accused -petitioners. Against the order of cognizance, the petitioners filed an application under Section 482, Cr. P.C. before this Court, which was registered as CRLMC No. 403 of 2003. This Court, by order dated 17.04.2003 quashed the order of cognizance so far as it relates to the offence under Section 3 of S.C. and S.T. (P.A.) Act on the ground that the investigation had been conducted by an officer below the rank of D.S.P. This Court, however, directed that the proceeding so far as the offences under the Indian Penal Code shall continue. On 02.05.2003, the accused -petitioners filed a petition before the learned J.M.F.C. to recall the order taking cognizance and drop the proceeding since it was barred by Section 468 Cr. P.C. On 04.07.2003, the learned Magistrate, after hearing the parties, rejected the said application with the observation that as cognizance had been taken, it was deemed that the Court had condoned the delay. That order was carried in revision to this Court in Crl Rev No. 844 of 2003. By order dated 08.04.2004, this Court deprecated the above observation of the learned Magistrate, quashed the order impugned and directed him to reconsider the question of taking cognizance of the offences under Sections 341/323/294/34 IPC by taking into account the provisions contained in Sections 468 and 473 Cr. P.C. Thereafter, on 15.07.2004 the accused -petitioners filed an application under Sections 468 and 473 Cr. P.C. before the learned Magistrate to recall the orders dated 13.11.1997 and 27.11.2001 taking cognizance and to drop the proceeding. The said petition was rejected after hearing the parties vide order dated 12.08.2004. In the said order, while referring to the provisions of Sections 468 and 473 Cr.P.C, the learned Magistrate observed that since the victim belongs to 'Kela' by caste and accused persons belong to higher caste, it was necessary for the interest of justice to ignore the delay and take cognizance of the above offences.

(3.) MR . Parhi, learned Addl. Standing Counsel, vehemently urges that the learned Magistrate has rightly passed the order on 27.11.2001. He has complied with the requirements of Section 473 Cr. P.C. while passing the said -order.