MAGI NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) In these two criminal revisions, the petitioners have challenged the orders passed by the learned Judicial Magistrate, Narasinghpur, taking cognizance of offences exclusively triable by the Court of Session against them in contravention of the proviso to section 202 (2) of the Code of Criminal Procedure (Code for short). As common questions of fact and law arise for consideration, they were heard together and are disposed of by this common judgment.

(2.) Facts: - Criminal Revision No. 601 of 1987 arises out of I.C.C. Case No. 68 of 1987 of the court of the learned Judicial Magistrate, Narasinghpur. It was alleged in the complaint petition filed on 22-8-1987 that, on 25-2-1987 at about 9.30 a.m. the petitioners being armed with deadly weapons such as, guns, explosive substances, Tangling Valis and lathis formed, an unlawful assembly, abused opposite party No. 2 (complaisant) and threatened to assault him. They set fire to his house and sugarcane crops raised by him which were completely destroyed and as a result of which a loss of Rs. 5000/- was sustained. F.I.R. was lodged at the police station but after investigation a final report was submitted. Therefore, opposite party No. 2 filed the complaint petition in protest station therein that the petitioners had committed offence under sections 148, 427, 436 and 506 read with section 149 of the Indian Penal Code (referred to as the I.P.C.). Out of these offences, section 436 I.P.C. is exclusively triable by a Court of Session. On the date of filing the complaint petition, the initial statement of opposite party No. 2 was recorded. He intended to produce more witnesses and so the learned Judicial Magistrate directed him to produce all his witnesses obviously with the intention of complying with the requirements of the proviso to section 202 (2) of the Code, although it was not specifically mentioned in the order-sheet dated 22-8-1987 that he had directed an enquiry as contemplated therein. On 10-9-1987, 11-9-1987, 15-9-1987 and 16-9-1987 he examined all six witnesses named as such in the complaint petition. It is pertinent to point out that opposite party N. 2 did not examine himself as a witness in the enquiry. After consideration of the statements of the witnesses recorded on oath, the learned Indicial Magistrate by the impugned order took cognizance of the offence under section. 141, 148, 427, 436 and 506 read with section 149, I.P.C. and issued prefect against the petitioner.

(3.) Criminal Revision No. 602 of 1987 also arises out of I.C.C. Case No. 16 of 1981 of the court of the learned Judicial Magistrate, Naraling pur. Opposite party No. 2 alleged, in the complaint petition that the petitioners in a body arrived in front of his house on 20-2-1987 at about 2.00 p.m. and asked him to vacate the house and leave the village. When he protested, the petitioners forcibly entered inside the house and when his wife took exception to their highhandedness, petitioner loginath Nayak assaulted her on the head by meant of pine of stone, as a result of which, she fell down on the ground. Thereafter all of them intimidated and assaulted him by means of kicks, fist blows and stone and forcibly removed gold ornaments, cash and paddy valued at Rs. 25,000/-. On account of the assault, his wife died. He orally reported the matter in the police station, but the Officer-in-charge of the police station instead of taking action asked him to perform the obsequies of his deceased wife and then report at the police station. As no action was taken, the complaint petition was filed on 4-3-1987 against the petitioners for having committed offences under sections 302, 395, 379 and 427 read with section 34 I.P.C. As some of the offences alleged are exclusively triable by the Court of Session, the learned Judicial Magistrate directed opposite party No. 2 to produce all his witnesses in compliance with the requirements of the proviso to section 202 (2) of the Code for the purpose of enquiry. In course of the enquiry on 22-8-1987 and 10-9-1987 opposite party No. 2 examined himself, and two of the witnesses whose names found place in the complaint petition. He did not, however, examine one Sarat Kumar Rout whose name found place in the complaint petition, but on the other hand examined one Bidyadhar Mahalik. Although the enquiry was further adjourned to 16-10-1987 he gave in writing that he had no other witness to examine. After consideration of the statements of the witnesses examined on oath, the learned Judicial Magistrate by the impugned order took cognizance of the offences under sections 147, 148, 396 and 441 read with section 149 IPC and issued process against the petitioners.