SANAT KUMAR PATNAIK Vs. BINOY KUMAR NAYAK

JUDGEMENT

(1.) Heard learned counsel for both the parties. In Crl. Misc. Case No. 2363/92 under S.482 of the Code of Criminal Procedure, 1973 (in short, 'the Code') petitioner has made the following prayer :-

(2.) Long and short of the background facts which reveals from the record is that in the night between 30th and 31st January, 1985 theft of gold ornaments and cash was committed in the house of the informant who is the present petitioner and the matter was reported to local police on 31-1-1985. On that basis G.R.Case No. 91 of 1985 was registered in the Court of S.D.J.M., Dhenkanal and the local police took up investigation. On 30-6-1985 final report was submitted and on 5-7-1985 a protest petition was filed by the petitioner and was registered as I.C.C.No. 64 of 1985. On 11-9-1985 learned S.D.J.M.accepted the final report and dropped the G.R.Case and the protest petition. Petitioner preferred criminal revision No. 48 of 1986 in the Court of Sessions Judge, Dhenkanal. On 18-6-1986 learned Sessions Judge disposed of the revision with direction to the S.D.J.M.to dispose of the protest petition after affording opportunity to the petitioner. After remand learned S.D.J.M.afforded opportunity to the petitioner, assessed the statements of the witnesses and again dismissed the complaint case and accepted the final report vide his order dated 6-9-1986. Against that order petitioner filed Crl. Revision No. 107 of 1986 in the Court of Sessions Judge, Dhenkanal. That revision was disposed of on 26-2-1980 with direction to the S.D.J.M.to issue direction for re-investigation of the case. Accordingly, the case was reinvestigated and charge-sheet was submitted in G.R.Case No. 91 of 1985. The servant of opposite party No. 1 who was one of the accused was arrested on 13-4-1991 and on 15-4-1991 he made a confessional statement before the S.D.J.M.admitting commission of the theft under the instruction of opposite party No. 1. It may be noted here that opposite party No. 1 is the elder brother of the petitioner. Opposite party No. 1 filed Crl. Revision No. 179 of 1991 in this Court, inter alia, contending that Crl. Revision No. 107 of 1986 was disposed of by the learned Sessions Judge without analogously vide order dated 12-11-1992 of this Court. For reasons indicated in that order, the order dated 15-4-1992 in dismissing the revision by the Sessions Judge was quashed and Crl. Misc. Case No. 1688 of 1992 was allowed. Consequentially, order dated 28-4-1992 in G.R.Case no. 91 of 1985 was set aside and accordingly Crl. Revision No. 355 of 1992 was allowed. It was agreed upon by both the parties that on 1-12-1992 they would appear before the Sessions Judge and thereafter the Sessions Judge would dispose of the Crl. Revision No. 107 of 1986 either on that date or on any other date, but after hearing the parties. It was also indicated in that order that in the event of non-receipt of L.C.R.by 1-12-1992 the Sessions Judge was to dispose of the revision only after issue of notice to both the parties and in the concluding sentence it was recorded that "taking cognizance and issue of summons to the accused and the witnesses in G.R.Case No. 91 of 1985 is to await the decision of Crl. Revision No. 107 of 1986 by the Sessions Judge."

(3.) The interesting development thereafter was that on 10-12-1992 petitioner filed a memo in not pressing the revision on the ground that affording an opportunity of hearing to him. Crl. Revision No. 179 of 1991 was disposed of by this Court on 14-8-1991 directing the Sessions Judge to re-hear Crl. Revision No. 107 of 1986 and parties were directed to appear before the Sessions Judge on 4-9-1991. Due to non-receipt of a copy of the order as well as the L.C.R.that revision was not taken up by the Sessions Judge till 6-3-1992. However, in the meantime, on the basis of the charge-sheet submitted, cognizance for the offences under Ss. 457/380/411 was taken against opposite party No. 1 and his servant and summons were issued for their appearance on 14-4-1992. On 15-4-1992 Crl. Revision No. 107 of 1986 was dismissed due to absence of the petitioner. Consequent upon disposal of that revision, learned S.D.J.M.passed order on 28-4-1992 by recalling the order of cognizance dated 4-2-1992. That order was challenged before this Court in Crl. Revision No. 355 of 1992 on the ground that the cognizance taken could not have been recalled by the S.D.J.M.petitioner also filed Crl. Misc. Case No. 1688 of 1992 u/S.482 of the Code challenging the order of the Sessions Judge for dismissal of Crl. Revision No. 107 of 1986 without hearing the petitioner. Crl. Revision No. 355 of 1992 and Crl. Misc. Case No. 1688 of 1992 were heard and disposed of S.D.J.M.had already taken the cognizance on the basis of the charge-sheet submitted after re-investigation. On 14-12-1992 hearing of the revision as well as the aforesaid memo was taken up, but keeping it part-heard the case was adjourned to 22-1-1993. Petitioner has stated in the application u/S.482 of the Code that learned Sessions Judge expressed opinion not to permit withdrawal of the revision and to dispose of the Criminal Revision in the same manner like the order dated 15-4-1992. Thus, petitioner has approached this Court u/S.482 of the Code with the above quoted prayer. Thereafter, on 2-2-1993 learned Sessions Judge rejected the memo and disposed of the Crl. Revision No. 107 of 1986 by dismissing it on merit. Against that order petitioner has preferred Crl. Misc. Case No. 341 of 1993 u/S.482 of the Code with the prayer to set aside the impugned order. As per order dated 9-4-1993 in Crl. Misc. Case No. 341 of 1992 both the above Crl. Misc. cases were listed together for disposal according to law. Thus this order will abide the result in both the Crl. Misc. Case No. 2363 of 1992 and 341 of 1993.