STATE Vs. BASUDEB SENAPATI AND 13 ORS.

JUDGEMENT

(1.) THESE two appeals arise out of the same judgment of Shri G. Ranga Row, Additional Sessions Judge, Cuttack. They were heard together. After the close of the hearing, we passed an order on 6 -8 -57 allowing Criminal Appeal No. 105 of 1955 and acquitting the seven Appellants and dismissing Government Appeal No. 2 of 1956, and reserved our reasons for the same. The reasons for our order are given hereunder.

(2.) GOVERNMENT Appeal No. 2 of 1956 was filed against 14 accused persons who were acquitted by the learned Additional Sessions Judge after trial on charges under Sections 148, 502109, 147109, 147 and 353 of the Indian Penal Code along with others. Respondents 11 to 13 in the Government Appeal, Hadibandhu Sahu, Krishnamohan Sahu, and Garuda Das were charged under Sections 392109 and 147109 I.P.C., Respondents 1 to 6 Basudeb Senapati, Ghanashyam Senapati, Dibakar Sahu, Dinabandhu Senapati, Fakir Senapati and Maheswar Sutar were charged under Section 302 read with Section 34 and Section 148 I.P.C., and Respondents 7 to 10 and 14 Jayaram Sahu, Krutibas Senapati, Danei Senapati, Daitari Senapati and Batakrushna Sahu were charged under Section 147 I.P.C. Respondents 2 and 3 were further charged under Section 353 I.P.C. No appeal is filed by the Government against the acquittal of accused Nos. 9 to 11; 15 and 19 to 33 of the offence of rioting punishable under Section 147 I.P.C. The Government Appeal Is against the acquittal of Respondents 1 to 6 on the charge of committing an offence under Section 302 read with Section 34 I.P.C.; against the acquittal of Respondents 11 to 13 on charges punishable under Sections 302109 and 147109 I.P.C. and against the acquittal of Respondents 7 to 10 and 14 on a charge under Section 147 I.P.C. During the course of argument, the teamed Government Advocate frankly conceded that he does not press the appeal against the accused other than accused Nos. 16, 17 and 18 for abetment of murder and against accused Nos. 1 to 6 for murder. Consequently, the Government Appeal was confined to these accused persons who are Respondents 11 to 13 and Respondents 1 to 6.

(3.) THE case was originally instituted by the Officer in charge of Patkura Police Station against 36 accused persons charging them with rioting with deadly weapons, assault on a public servant on duty and causing murder of one Madhusudan Samantaray on 21 -10 -1953 in Pikrali village. The Committing Magistrate in the first Instance committed only 18 accused persons to take their trial before the Sessions Court by his order dated 8 -11 -1954 and discharged the others. There was a revision petition filed against the order of discharge of the other accused before the Additional District Magistrate of which Haladhar Sahu, Appellant 7 in the Criminal Appeal is one and the Additional District Magistrate directed that all the 18 discharged accused persons except one should also he committed for trial along with the 18 others committed in the first instance. I may note here that the Magistrate who committed the 18 persons for trial and discharged the 18 others did not note the names of the discharged accused and the order. He ought to have done so and ought not to have simply given the names of 18 persons who were committed for trial in his order which is also an order of discharge against the other accused persons. The Additional District Magistrate also committed a mistake in not naming all the Respondents to the revision petition in his order of commitment. He contended himself by naming the persons as Nabaghana Sahu and 17 others. It is necessary that in the order of either commitment or discharge the names of all the accused persons should be noted. It is regrettable that these elementary and fundamental requisites are not observed by the magistracy even including the Additional District Magistrate. The omission to do so is a grave irregularity which should be noted by the magistracy, as it would cause great hardship to the persons who were discharged, in not being able to produce an order of the Court which shows that they are discharged. Thus 35 persons in all were committed to take their trial before the Court of Sessions of whom one of the accused persons Hadi Senapati died and consequently the trial proceeded against only 34 persons.