STATE Vs. K LACHMAN MURTY

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Koraput-Jeypore-recommending the setting aside of an order of acquittal passed by (1) Sri B. C. Mohanty, stationary Sub-Magistrate of Gunupur in G. R. Case No. 77 of 1956 and (2) Sri P. Jena, Stationary Sub-Magistrate of Nowrangpur in G. R. Case No. 313 of 1956.

(2.) G. R. Case No. 77 of 1956 in the Court of the Stationary Sub-Magistrate of gunupur against opposite party Kengua Lachman Murty was initiated on the basis of a charge sheet submitted by the Officer-in-charge of Gunupur P. S. under sections 279 and 338 of the Indian Penal Code. The allegation was that on the 145- 1956 the opposite party drove his cycle in a rash and negligent manner and ran over one Trinath Bouri (P. W. 2) and thereby fractured his leg. The trying Magistrate of Gunupur, on 6-8-1956 allowed the offence under Section 338, Indian Penal Code to be compounded and acquitted the accused of that offence, under Section 345 (1) of the Criminal Procedure Code. He dropped the charge under Section 279, Indian Penal Code observing that where grievous hurt is caused by the rash and negligent act of a person he will be guilty only under section 338 Indian Penal Code, and not under both Sections 338 and 279 Indian penal Code. In G. R. Case No. 313 of 1956 also, the facts were very similar, opposite party Dayadam Bhanja was prosecuted under Sections 279 and 337 of the Indian Penal Code on the allegation that by driving his cycle rashly and negligently on a public road he caused injury to one Brahman. The trying magistrate of Nawrangpur allowed the parties to compound the offence under section 337 and acquitted the accused of that offence under Section 345 of the criminal Procedure Code. He further observed that there can be no separate charge under Section 279, Indian Penal Code inasmuch as that offence merged with the offence under Section 337 Indian Penal Code.

(3.) THE State of Orissa represented by the Public Prosecutor of Koraput, filed two revisions before the Sessions Judge of Koraput-Jeypore, challenging the view taken by the two magistrates of Gunupur and Nowrangpur regarding the non-maintainability of the charge under Section 279 Indian Penal Code when there is another charge for an offence under Section 337 or 338, Indian Penal Code. It was conceded by the learned Public Prosecutor before the learned Sessions Judge that the orders of the two Magistrates amounted to an acquittal of the two accused persons of the charge under Section 279 I. P. C. though there is no express order of acquittal in the judgments of the two magistrates.