NARAYAN SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) Short but substantial question which has been raised in this application under Section 482 of the Criminal Procedure Code, 1973 (in short, the Code) is as to whether a caste not notified as Scheduled Caste in the Presidential Order and Notification under Article 341 of the Constitution can be regarded as Scheduled Caste being described in that manner in the District Gazetteer.

(2.) Relevant facts may be indicated for reference. Petitioner is one of the accused persons in T.R. No. 25/28 of 96-95 of the Court of AddI. Sessions Judge-cum-Special Judge, Khurda. In that case cognizance for the offence under Sections 323, 324, 506/34, IPC and Sec. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short the Act') has been taken. On 5-11-1996 petitioner filed an application challenging the order of taking cognizance of the offence under Sec. .3 of the Act, on ground that the informant being a Khatia by caste and not being Katia by caste is not a member of the Scheduled Caste as per the Presidential Order and, therefore, petitioner cannot be prosecuted for the offence under Sec. 3 of the Act. In his order dt. 11-5-1998 (impugned order) learned Special Judge rejected the aforesaid contention of the petitioner on the ground that in the Pun District Gazetteer, both Katia and Khatia have been included within the category of Scheduled Castes in the district of Purl. Learned Special Judge also took note of the fact that in the record of right the informant has been described as a person belonging to Khatia caste.

(3.) Mr. S.D. Das, learned counsel appearing for the petitioner advanced argument reiterating the same point which was canvassed before the trial Court and relying upon authorities from the Supreme Court and this Court he argued that save and except following the provisions in Article 341 of the Constitution there cannot be any addition for substraction of the caste in the Presidential Order wherein the castes belonging to Scheduled Caste groups have been enlisted. Learned AddI. Standing Counsel without disputing to the aforesaid argument replied that learned Special Judge without proper assessment of the evidence in the case diary has disposed of the matter simply with reference to the record of right and the District Gazetteer and therefore, factual assertion as to whether the in formant is Katia by caste or Khatia is a matter which should be ascertained by the trial Court from the statements available in the case diary.