DHRUBA CHARAN KHUNTIA Vs. STATE AND 2 ORS.

JUDGEMENT

(1.) THE appeal and the revision petition arise out of the same incident which took place on 20 -11 -63 on plot Nos. 647 and 648 of Mouza Palada within Salepur P.S. These two plots of lands originally belonged to some Chamars and admittedly had been purchased by one Dhadi Mohanty about 7 to 8 years before 1963. Dhruba Charan Khuntia and his brother Guru Charan Khuntia, who are the Petitioners in or Rev. 472/66 claim that they were bhagcbasis in respect of the disputed lands under the Chamars and continued to be so under Dhadi Mohanty after the latter purchased the same and that in the year 1963, they, as usual, raised paddy on the land and on 20 -11 -1963 reaped the same with the help of labourers. While they were returning borne with the paddy sheaves Indramoni Swain and his nephew Nisa came to the spot and abused them. Indramoni was armed with bamboo stick and katuri and Nisa had kept a Bhujali concealed inside his clothes. Indramoni assaulted Guru Charan with a stick. When a second blow was aimed by him at Guru Charan, the stick fell down on the ground and broke into two pieces. Guru Charan picked up one of the pieces and whistled it. Nisa immediately rushed towards him and gave two strokes with the Bhujali causing bleeding injuries on his neck, and ear.

(2.) THE case of Indramoni Swain, however, is that he and his brother Bramhananda Swain were bhag tenants in respect of the disputed land under Dhadi Mohanty and were regularly paying rent to him and after his death to his widow Fulla Bewa. Three years prior to the incident on 20 -11 -1963, they had purchased the land from Fulla Bewa under a registered sale deed and since then they were in possession thereof in this own right. During the year 1963 they raised paddy crops on the lands. On 20 -11 -1963, Dhrub Khuntia and his brother Guru Charan Khuntia along with a number of labourers reaped the crops although they were not yet ripe Indramoni and his brother Bramhananda protested. On the direction of Dhruba Khuntia all his men assaulted Indramoni with lathis causing fracture and they also assaulted his brother Bramhananda with lath is and injured him with a knife resulting in incised wounds and fractures. Indramoni and Bramhananda were removed to the hospital. On the next day i.e. 21 -11 -1963 they lodged information at Mangalabag P.S., but as the occurrence took place within the limit of Salepur P.S., the case was transferred there for investigation. After investigation police filed G.R. Case No. 2490/63 against Dhruba and his brother Guru Charan and 8 other persons said to be this labourers under Section 147/149/323 Indian Penal Code, Meanwhile Indramoni had also filed a complaint petition regarding the same incident in Court against Dhruba, Guru Charan and 23 others under Section 147/323/325/379. Indian Penal Code and cognizance had been taken thereon (C.C. 820/63). By order dated 10 -8 -1964, complaint case No. 820/63 was ordered to be merged with G.R. Case No. 2490/63 with the result that G.R. Case No. 2490/63 proceeded against Dhruba, Guru Charan and 23 others and ultimately ended in acquittal of an the accused persons. After obtaining special leave from this Court under Section 417(3), Code of Criminal Procedure, Indramoni Swain has preferred Cr.A. No. 175/66 against the order of acquittal.

(3.) AT the outset Mr. B.K. Behura, appearing for the Respondent in Cr.A. No. 175/66 raised a preliminary objection that the appeal filed at the instance of Indramoni Swain is not maintainable as Section 417(3), Code of Criminal Procedure is not applicable to this case. His contention is that as Complaint Case No. 820/63 filed by Indramoni had been ordered to be merged with G.R. Case No. 2490/63, the case thereafter proceeded as a case instituted on police report and therefore Section 417(3), Code of Criminal Procedure has no application. In support of this contention he relied on a decision of this Court in Sudhakar Das v. Dayanidhi Mohanty, 31 C.L.T. 941. It is however contended by Mr. R.C. Ram appearing for the Appellants relying on a decision of the Supreme Court in Jamuna Singh v. Bhadai Shall, 1964 S.C.D. 103, that in the circumstances of the present case the identity of the complaint case filed by him in the Court should not be deemed to have been lost at all and the order of acquittal passed in G.R. Case No. 2473/63 should be deemed to have been passed in a case instituted on a private complaint and consequently application of Section 417(3), Code of Criminal Procedure is attracted. Section 417(3), Code of Criminal Procedure provides that if an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. There is no dispute that in the present case the Court has granted special leave to Indramoni to file the appeal. When a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence such case is one instituted on acorn plaint. When the Magistrate takes cognizance of an offence upon a report in writing of such facts made by any police officer, it is a case instituted on a police report.