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2000 DIGILAW 352 (ORI)

BIJAYA KUMAR KHUNTIA ALIAS BIJI v. STATE OF ORISSA

2000-07-15

P.K.TRIPATHY

body2000
JUDGMENT : P.K. Tripathy, J. - In this application u/s 482. Code of Criminal Procedure 1973, petitioner prays to quash the order of cognizance dated 15.1.2000 in T.R.No. 4 of 2000 pending in the Court of Sessions Judge-cum-Special Judge, Puri. The aforesaid order of congnizance was taken for the offence punishable u/s 341, 326, 307 read with Sections 34, I.P.C., Section 27 of the Arms Act and Section 3 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act'). 2. In the F.I.R. it was alleged that on 19.9.1999 at about 12.30 P.M. petitioner with the co-accused persons removed a goat from the informant's premises, his sons protested and when terrorised by the accused, out of fear went to the police station to report the matter. At about 1 P.M. petitioner with the co-accused Babaji Barik Demanded the whereabouts of the younger son of the informant and when the informant intimated about the fact that they had gone to lodge a report at the police station, petitioner with the co-accused collected weapons like sword and knife from the backside of that premises and attacked and assaulted the informant and his family members. It is alleged that they made attempt to kill and in that process caused severe injuries on different parts of the body, including severing of a hand from the body of the injured Kulamani. 3. Learned counsel for the petitioner argued that the totality of the allegation regarding the assault at best amount to an offence u/s 325 I.P.C. and not u/s 307 or 326. On a perusal of the statement of the witnesses and the Injury report, this Court does not find any illegality or error committed by the learned special Judge in taking cognizance of the offence u/s 326 and 307, I.P.C. because at the stage of the taking cognizance an prima facie view is taken of the materials available on the case diary and no meticulous scanning of the same is required or permissible. The statement of the witnesses and the nature of the injuries on the informant and his son indeed show existence of a prima facie case of the offences for which cognizance has been taken. Thus, on the aforesaid ground order of cognizance need not interfered with. 4. The statement of the witnesses and the nature of the injuries on the informant and his son indeed show existence of a prima facie case of the offences for which cognizance has been taken. Thus, on the aforesaid ground order of cognizance need not interfered with. 4. Learned counsel for the petitioner argued that in accordance provision in Rule 7 of Scheduled Castes and Scheduled Tribes (Preventions of Atrocities) Rules it is mandatory that the (Prevention of Atrocities) Rules it is mandatory that should be conducted by an officer not Suprintendent of Police. In this case since the investigation has been done by and officer below the rank of the Deputy Superintendent of Police, the charge-sheet is vitated and, therefore, order of cognizance is liable to be quashed. In that respect it be noted that Rule 7 indeed provides for investigation of the offence by a police officer not below the rank of Deputy Superintendent of Police and admittedly in this case an officer of that rank or above that rank has not investigated the case. It was not disputed at the bar that except the offence u/s 3 of the Act, the other offences, cognizance of which has been taken by learned S.D.J.M., is permissible under law to be investigated by the investigating officer who conducted the investigation in the case under consideration. Therefore, it boils down to the point that because of involvement of the offence u/s 3 of the Act, and ' the provision in Rule 7 of the said Rules investigation done by the present investigating officer is not being empowered under law which amounts to an irregularity. Unless the accused asserts and proves on record any prejudice caused to' him because of such irregularity in the investigation by an officer below the rank of Deputy Superintendent of Police, the criminal proceeding is not liable to be quashed at the initial stage of the proceeding. In this case, petitioner has not breathed anything claiming prejudice. Thus, on the aforesaid ground, the cognizance order cannot be quashed. However, if such a contention shall be raised at any subsequent stage of the proceeding, the same be considered and decided in accordance with law by the Court concerned. 5. No other contention was advanced challenging the order of cognizance. Thus, on the aforesaid ground, the cognizance order cannot be quashed. However, if such a contention shall be raised at any subsequent stage of the proceeding, the same be considered and decided in accordance with law by the Court concerned. 5. No other contention was advanced challenging the order of cognizance. Since the aforesaid grounds advanced by the petitioner in support of his argument for quashing of the cognizance is not sustainable both legally and factually, the application u/s 482, Cr.P.C. stands rejected.