MASABATTULA KONDEL RAO Vs. KEDURI ACHAMA

JUDGEMENT

(1.) The petitioners who are accused persons in S.C. No. 25 of 1996, arising out of a complaint case, challenge the order of the Additional Sessions Judge, rejecting their applications for acquittal and the other for not examining the witnesses other than those, who have been examined under Section 202, Cr. P. C.

(2.) The brief facts of the case is that one K. Kalabati (deceased) married accused M. Koondel Rao in the year 1991, but she died on 26-4-1996 at about 4.00 to 5.00 p.m. sustaining burn inuries. The incident was reported to the local police station by M. Simachalam, petitoner No. 3 on which Parlakhemundi P. S. U. D. Case No. 3 of 1995 was started. The police submitted Final Form reporting that the deceased committed suicide. After the Final Form was submitted, the mother of the deceased, Smt. Keduri Achama (opp. party No. 1) filed I.C.C. Case No. 34 of 1995 before the learned S.D.J.M., Parlakhemundi and examined two witnesses in the case. On the basis of the evidence of the two witnesses the Magistrate having found that it reveals a case triable by the Court of Session, took cognizance of an offence punishable under Section 302/34, I.P.C. read with Section 4 of the Dowry Prohibition Act, and committed the case to the Court of Session which was numbered as S.C. No. 25 of 1996 before the Sessions Judge, Ganjam-Gajapati-Parlakhemundi. The learned Sessions Judge framed charges under Sections 302/498-A/34, I.P.C. and under Section 4 of the D. P. Act and posted the case for trial to 2-1-1998. It is alleged that the learned Public Prosecutor having filed a list of 17 witnesses, the petitioners filed two petitions, one for acquittal of the accused persons, the mandatory provisions of Section 202(2), Cr. P. C. proviso having not been followed and the other petition was for examining only two witnesses who have been examined under Section 202, Cr. P. C. The learned Additional Sessions Judge by order dated 15-4-1998 rejected both the petitions on the ground that it has been filed at a belated stage and that the accused persons could have moved the learned S.D.J.M. and since the stage is already over, the petitions are not maintainable.

(3.) It is submitted that the Additional Sessions Judge has committed serious error of law in holding that the accused persons should have moved the lower Court for the purpose inasmuch as it is contended that the learned Additional Sessions Judge has failed to appreciate that the accused persons did not have any locus standi during the enquiry under Section 202, Cr. P. C. to move such an application. It is further contended that under proviso to sub-section (2) of Section 202, Cr. P. C. the complainant was to be called upon by the learned Magistrate to produce all her witnesses and examined them on oath, if the complaint case is exclusively triable by the Court of Session. It is, therefore, the submission of the learned counsel for the petitioners that only two witnesses having been examined during the enquiry under Section 202, Cr. P. C. the learned Public Prosecutor could not have given a list of 17 witnesses during the trial before the learned Sessions Judge which is contrary to the provision of the Code and it shall frustrate the purpose of the proviso to sub-section (2) of Section 202, Cr. P. C.