TRIBIKRAM MISRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order passed by the learned Sub -Divisional Judicial Magistrate, Khurda, taking cognizance of several offences including one under Section 302 I.P.C. against the Petitioner.

(2.) PROSECUTION case in short is that on 21.9.1980 between 6 and 10 a.m. at village Mallipur a large number of accused persons including the Petitioner being armed with deadly weapons, such as, Lethi Bhali, Kunta etc. formed an unlawful assembly, entered into the houses of several persons, damaged not only houses, but also household articles, committed theft of valuables from the houses and assaulted several persons some of whom were severely and grievously injured. One of them named Basanta Rana succumbed to the injuries in Khurda hospital on the next day, F.I.R. was lodged at Khurda Police Station on the date of occurrence itself and investigation commenced. During investigation, several witnesses were examined and as a result of the investigation, a charge -sheet was prepared and signed by the investigating officer on 5.9.1981 in which the name of the Petitioner was mentioned as one of several accused persons, but it was not sent to the court immediately. On 12.12.1981 and 21.3.1982 the Deputy Inspector General of Police (C.I.D.), Cuttack, inspected the spot and supervised the case in the presence of the investigating officers and tested several witnesses. On 9.4.1982 the investigating officer wrote out a petition addressed to the learned Sub -Divisional Judicial Magistrate. Khurda, and stated therein to delete the name of' the Petitioner from the charge -sheet. The charge -sheet was submitted on 18.5.1982 on which date cognizance of offences was taken. On 1.6.1982 the Petitioner filed a petition for deletion of his name from the charge -sheet. On 28.6.1982 the learned Sub -Divisional Judicial Magistrate considered the petitions made by the investigating officer, as well as the Petitioner, for deletion of the name of the latter from the charge -sheet, but rejected them. Thereupon the Petitioner filed Criminal Revision No. 139 of 1982 in the court of the learned Sessions Judge, Puri, challenging the order of cognizance, After hearing both parties, the learned Sessions Judge by order dated 17.12.1982 allowed the same and quashed the proceedings against the Petitioner. The wife of deceased Basanta Rana felt aggrieved by the aforesaid order and moved this Court in Criminal Revision No. 10 of 1983 which came up for hearing before learned Judge, who by order dated 30.4.1984 allowed the same, set aside the order of the learned Sessions Judge, as well as the order of cognizance, and remanded the proceeding to trial court for reconsideration regarding taking of cognizance of offences against the Petitioner. After the order of remand, the learned Sub -Divisional Judicial Magistrate heard the parties, re -examined the matter and found that there was a prima facie case against the Petitioner for several allied offences including Section 302 I.P.C., and so he again took cognizance of the said offences against him. This order dated 13.9.1984 has again been challenged in this criminal revision.

(3.) LAW is well settled that at the stage of cognizance the Magistrate is required to consider whether there are sufficient materials on record to take cognizance of offence or offences and issue process against the accused and after his appearance to proceed further in order to investigate into the truth or otherwise of allegations and charges made against him. At the stage of cognizance, however, the Court is not required to enter into a detailed discussion of the merits or demerits at the case so as to find out if the allegations and the charges are true or not It is nevertheless desirable for the court to see that innocent persons are not roped in so as to suffer the rigour of a trial with the sword of Democles hanging on his head, merely because some of the witnesses make bald statements implicating him in criminal offences. It is also settled law that the Magistrate taking cognizance of offences should not act as an automation and believe and swallow what a few witnesses state about a person having been involved in a criminal offence, but has to apply his judicial mind and test the materials on record with eagle eyes so as to discern The complicity or otherwise of the person concerned. For this purpose, he is bound to give free play to his sense of criticism Unless this course is adopted at the initial stage of a criminal case, it is very likely that innocent persons would be involved in criminal cases, may be falsely and without any basis. It is also to be borne in mind that unless this salutary caution is exercised crafty litigants will be encouraged to implicate innocent persons or their rivals in criminal cases by setting up a few band followers to speak against such persons. Keeping the above principle in the background it is necessary to scrutinise the materials available on record so as to find out if there was a prima facie case against the Petitioner so as to take cognizance of offences including the one under Section 302 I.P.C.