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1998 DIGILAW 432 (ORI)

RAMA CHANDRA PANDA v. INDRA MANI PANDA

1998-12-05

P.K.TRIPATHY

body1998
JUDGMENT : P.K. Tripathy, J. - Heard. 2. This revision is disposed of at the stage of hearing on admission on consent of both the parties. Complainant in LC.C. No. 25/93 of the Court of S.D.J.M., Jagatsinghpur is the Petitioner and the accused persons are the opposite party members. Stating of the facts involved in the case is not required to be reflected in this order in view of the dispute relating to the legal position Le. the proper procedure which is to be followed under the following given circumstance. 3. Mr. Nayak, learned Counsel for the Petitioner states that complaint petition was filed alleging commission of the offence under Sections 341/323/325/377/294/506/307/34, I.P.C. and after enquiry u/s 202 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), learned S.D.J.M. took cognizance of the offence under Sections 341/525/323/385/34, I.P.C. on the ground of existence of a prima facie case for such offences. After hearing before charge learned S.D.J.M. found existence of prima facie case under Sections 364/307/34, I.P.C. Hence afresh he took cognizance of the said offence vide his order dt.19.8.1996. That order was challenged in Criminal Revision No. 119/96 in the Court of Addl. Sessions Judge, Jagatsinghpur. That revision was allowed on 29.6.1998 setting aside the impugned order of the S.D.J.M. and a direction was issued to the S.D.J.M. to follow the provisions in Sections 244 to 248 of the Code V, to dispose of the case in accordance with law. 4. Mr. Nayak, learned Counsel for the Petitioner submits that though the observation of the learned Addl. Sessions Judge with regard to incorrect approach of the S.D.J.M. is correct, the observation made relating to following the provisions in Sections 244 to 248 is incorrect. He further states that in the fitness of facts and circumstance, the appropriate provision of law is the provision in Section 323 of the Code which should be followed and learned Add1. Sessions Judge should have issued direction accordingly. He states that this revision maybe disposed of with that observation. Indeed it appears that though the problem is simple regarding following the correct procedure, yet while correcting the mistakes of the learned S.D.J.M. learned Add1. Sessions Judge has failed to give a proper direction/guidance. Sessions Judge should have issued direction accordingly. He states that this revision maybe disposed of with that observation. Indeed it appears that though the problem is simple regarding following the correct procedure, yet while correcting the mistakes of the learned S.D.J.M. learned Add1. Sessions Judge has failed to give a proper direction/guidance. Admittedly, on the basis of a complaint petition, the case was registered, cognizance of the offences as aforesaid was taken and process was issued against the accused persons for hearing and disposal of the case in accordance with Chapter XIX of the Code Le. the "Trial of Warrant Cases by Magistrates". After recording the evidence of three witnesses at the stage of framing charge in accordance with the procedure u/s 246(i) of the Code learned S.D.J.M. found that a prima facie case is made out for the offences under Sections 364/307/34, Indian Penal Code. which is exclusively friable by the Court of Session? In that connection, the language used in Section 246(1) read with Section 323 of the Code makes it abundantly clear about the procedure to be followed in such a case. For ready reference the aforesaid provisions are quoted as below: 246. Procedure where accused is not discharged.- (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence friable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.. 323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made. The language used in Section 246(1) of the Code makes it absolutely clear that accused who is not discharged in accordance with Section 245 can be proceeded against under Sections246 to 248 after framing of the charge under Sub-section (1) of Section 246 if the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence friable under this Chapter, which such Magistrate is competent to try and which is his opinion could be adequately punished by him. (underlining is made to put emphasis) Therefore, if the Magistrate is of opinion that he is not competent to try or that he cannot award adequate punishment because of the nature of the offence, in such type of cases, he shall not frame charge against the accused. Thereafter, Chapter XIX is silent about the recourse to be followed and the same is provided in Sections 322, and 323 which is in Chapter XXIV of the Code regarding "general provisions as to inquiries and trials. 5. The language in Section 323 of the Code, as quoted above requires No. further interpretation about the manner in which the aforesaid type of cases are to be handled. However, it may be mentioned that if the Magistrate finds a case to be friable by the Court of Session, he shall commit it in accordance with law and thereafter provisions in Chapter XVIII of the Code shall apply to the commitment so made. That being the position of law, the direction of the learned Addl. Sessions Judge to the S.D.J.M. to follow the provisions in Sections 244 to 248 and to dispose of the case in accordance with law is not a clear, but an ambiguous order. Findings and observations recorded in this order, as both the parties agree, is sufficient to provide the guidelines to learned S.D.J.M. to proceed with the case in the right track. Thus, this revision is disposed of accordingly. Since the occurrence of the case relates to the year 1993 both the parties agree that they shall cooperate for its early disposal, hence learned S.D.J.M. as win as the trial Court are directed to show their expediency in dealing and disposing of the case in accordance with law.