BATAKRUSHNA TRIPATHY Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this application the petitioners seek to challenge the order dated 25-1-1995 passed by the learned Addl. Sessions Judge, Khurda, thereby confirming the order dated 5-3-1994 passed by the learned Sub-Divisional Judicial Magistrate, Khurda (in short 'S.D.J.M.') taking cognizance of the offence committed under Sections 341, 323, 324, 325 and 307 read with Section 34, Indian Penal Code (for short the 'I.P.C.') on the ground that the order taking cognizance has been passed in a mechanical manner without application of judicial mind. It has been further stated that the materials available on record do not prima facie constitute essential ingredients of the alleged offences against the petitioners. The petitioners state that continuance of the proceeding will amount to abuse of the process of the Court and as such the proceeding is liable to be quashed.

(2.) The fact of the case is that the petitioners stood their trial before the learned Judicial Magistrate First Class, Khurda (in short 'J.M.F.C.') on charges under Sections 341, 323, 324 and 325, I.P.C. After 13 witnesses were examined by the prosecution, the latter filed a petition on 7-9-1993 contending, inter alia, that a prima facie case under Section 307, I.P.C. has been established against accused Mahanta alias Manoranjan Tripathy. Upon hearing both the sides the trial Court came to a finding that there is a prima facie case under Section 307, I.P.C. against the said accused. The trial Court observed that the said offence being exclusively triable by the Court of session and he having no jurisdiction to try the case and to take cognizance of the said offence, it was proper to write a letter to the Chief Judicial Magistrate, Puri requesting him to withdraw the case from his file and to issue instruction for commitment of the case. There upon the Chief Judicial Magistrate withdraw the case from his file and transferred the same to the file of S.D.J.M., Khurda, whereupon the S.D.J.M., Khurda on perusal of the case record found sufficient materials to proceed against the petitioners under Sections 341, 323, 324, 325 and 307 read with Section 34, I.P.C. and as such, he took cognizance of the offences thereunder. As against the said order the petitioners moved the Sessions Court in revision. They have alleged that there has been infringement of legal procedure in sending the case record to the Court of the S.D.J.M., Khurda and therefore, the order dated 5-3-1994 passed by the learned S.D.J.M., Khurda is illegal and as such is required to be set aside. It was further contended that there was no basis for the trial Court to come to a finding that a prima facie case under Section 307, I.P.C. has been made out against all the petitioners. Upon hearing both the sides, the learned Addl. Sessions Judge, who heard the revisional application, observed that the impugned order dated 5-3-1994 of the S.D.J.M., Khurda in taking cognizance of certain offences is not in accordance with the legal procedure. The learned Addl. Sessions Judge however dismissed the revision application on the ground that the petitioners have not been prejudiced in any way by the impugned order. While dismissing the revision application, the learned Addl. Sessions Judge, Khurda by order dated 25-1-1996 directed the learned S.D.J.M., Khurda to commit the case to the Court of Session as quickly as possible.Being aggrieved thereby the petitioners have filed this application under Section 482, Criminal Procedure Code.

(3.) Heard learned counsel appearing for the petitioners as well as learned counsel for the State.It appears that the learned J.M.F.C., Khurda vide his order dated 16-2-1994 found that a prima facie case under Section 307, I.P.C. has been made out against accused Mahanta alias Manoranjan Tripathy alone. Since the offence was exclusively triable by the Court of Session and he had no jurisdiction to try the case he thought it fit to write to the learned Chief Judicial Magistrate, Puri for withdrawal of the case from his file and for further instruction. It appears that the Chief Judicial Magistrate, Puri on receipt of the letter of request from the J.M.F.C., Khurda withdrew the case from his file and transferred the same to the Court of the S.D.J.M., Khurda, who by the impugned order dated 5-3-1994 upon perusal of the record found sufficient material to proceed with the case under Sections 341, 323, 324, 325, 307 read with Section 34, I.P.C. against the petitioners. This order of the learned S.D.J.M., Khurda is the subject matter of challenge here. According to the learned counsel appearing for the parties, the order of the learned S.D.J.M., Khurda dated 5-3-94 is at variance with that of J.M.F.C., Khurda who by order dated 16-2-1994 observed that the offence under Section 307, I.P.C. has been made out only against accused Mahanta alias Manoranjan Tripathy. It appears that the learned Addl. Sessions Judge dismissed the revision application on the ground that no prejudice has been caused to the present petitioners by the impugned order. Learned counsel for the petitioners submits that the materials on record do not prima facie show a case under Section 307, I.P.C. against all the accused persons, but a case under Section 307, I.P.C. is established prima facie against accused Mahanta alias Manoranjan Tripathy only. He submits further that there is no material to hold that the other accused persons are in any way concerned with the offence under Section 307, I.P.C. I find substance in the submissions of the learned counsel for the petitioners. The materials on record disclose that a case under Section 307, I.P.C. has been established, prima facie against accused Mahanta alias Manoranjan Tripathy alone. Learned counsel for the State sees no objection if the accused Mahanta alias Manoranjan Tripathy alone is ordered to face trial for the offence under Section 307, I.P.C. Therefore having regard to the facts and circumstances of the case, I think that the impugned order require modification to the extent that accused Mahanta alias Manoranjan Tripathy would face trial under Sections 341, 323, 324 and 325 read with Section 34, I.P.C. along with other accused persons. He will face trial additionally under Section 307, I.P.C. The learned S.D.J.M., Khurda is directed to commit the case to the Court of Session as quickly as possible. The Criminal Misc. Case is disposed of accordingly.The lower Court record be sent down at once. Order accordingly.