RAMESH SAMAL Vs. CHABI MANDAL

JUDGEMENT

(1.) Upon hearing Mr. S.K. Padhi for the petitioners, Mr. S.C. Mohapatra for the opposite party No. 1 and Mr. R.K. Patra, the learned Additional Government Advocate, we find that the impugned order passed by the learned Judicial Magistrate, Digapahandi, taking cognizance of alleged commission of offences by the petitioners punishable under Ss.148, 302 read with Ss.149 and 302 read with S.109 of the Penal Code on the basis of a petition of complaint by the opposite party 1 which has been maintained by Mr. C.R. Pal the learned Sessions Judge, Berhampur, must be set at naught, for the reasons to follow.

(2.) On the basis of a first information report in respect of the same incident, investigation had been taken up by the police agency and on its completion, a charge-sheet had been placed against the petitioners Ramesh Samal, Alekh Mandal, Raghunath Nahak and Bishnu Mandal and the other petitioners were not proceeded against. An application made under S.319 of the Cr.P.C. (for short, the Code) for impletion of the petitioners against whom charge-sheet had not been placed had been rejected.

(3.) Three of the petitioners, namely, Ramesh, Samal, Alekh Mandal and Raghunath Nahak, who stood trial in the Court of Session, had been acquitted by the time the impugned order of taking cognisance was passed. Another petitioner, namely, Bishnu Mandal, stood trial subsequently and was acquitted. In respect of the other petitioners, the order of cognisance in a case triable by the Court of Session could not have been passed on the basis of a petition of complaint without examination of all the witnesses for the complainant-opposite party No. 1 in flagrant violation of the Proviso to sub-sec. (2) of S.302 of the Code and in view of the principles laid down by this Court in (1979) 47 Cut LT 244, Gokulananda Mohanty v. Muralidhar Mallik, 1983 Cri LJ NOC 52 (Orissa), E. Khetra v. Kahal Madhab, (1984) 1 Orissa LR 58 : 1983 Cut LR (Cri) 383, Guljar Hussain v. Krishna Soila and 1984 Cri LJ 901 : (1984) 1 Orissa LR 340 : (1984) 57 Cut LT 355, Om Prakash Saha v. Manmohan Mohanty.