BASANTA KUMAR BARAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioners (hereinafter referred to as 'the accused persons') by filing the present application have challenged the order of the learned Judicial Magistrate, First Class, Baramba, passed in G.R. Case No. 78 of 1990, whereby he has taken cognizance of the offence under Section 436, I.P.C. and issued summons for their appearance.

(2.) Brief facts giving rise to the present proceeding may be stated thus :Kubera Majhi, opposite party No. 2 (hereinafter referred to as 'the informant') lodged F.I.R. at Baramba Police Station alleging that the accused persons were inimically disposed towards him since last Panchayat election and in order to take revenge on him, they came in a body to his house at about 1.40 in the night of 18/19-6-1990 being armed with lathis, knives, rivolvers, etc., took away household articles and set fire to the house. They also assaulted and dragged him forcibly with intention to throw him in the burning fire. It is further alleged that they while leaving his house with the movables, threatened that if he did not withdraw the case that he had filed against them, they would finish his entire family. On receipt of the said report, the police registered a case and on completion of investigation submitted final report since no sufficient evidence was available to place charge-sheet against the accused persons. On receipt of the final report, learned Magistrate issued notice to the informant to have his say. In response to the said notice the informant entered appearance and challenged the correctness of the final report whereupon the learned Magistrate on perusal of the case diary and being satisfied that a prima facie case was made out against the accused persons took cognizance of the offenceunder Section 436, I.P.C.

(3.) The accused persons then moved this Court in Criminal Misc. Case No. 892 of 1991 and prayed for quashing the aforesaid order. Upon hearing the parties, the Court set aside the order of the Magistrate taking cognizance of the offence and remitted the matter back with a liberty to the accused persons to raise all possible contentions before him since such a course was permissible in view of the decision of the Apex Court in K. M. Mathew v. State of Kerala, (1992) 5 OCR 66 : (1992 Cri LJ 3779). It appears, learned Magistrate received the original case record on 5-6-1993 and adjourned the case to 20-8-1993 on which date he passed a cryptic order taking cognizance of the offence which runs thus :