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2003 DIGILAW 36 (ORI)

Mahendra Naik alias Mahendra Ku. Naik v. State

2003-01-16

P.K.TRIPATHY

body2003
ORDER 16.1.2003. — The transliterated copy of the F.I.R. is filed by learned counsel for the petitioners. 2. Heard. 3. In this application under Section 482, Cr.P.C. the three petitioners who are the accused persons in G.R. Case No. 165 of 2000 of the Court of S.D.J.M. Dharmagarh challenge to the order of cognizance and in course of argument, learned counsel for the petitioners state that the order of cognizance for the offence under Section 397 I.P.C. is only challenged. 4. Relying on the ratio in the case of Phool Kumar v. Delhi Administration reported in A.I.R. 1975 S.C. 905, learned counsel for the petitioners states that in the absence of allega¬tion of use of any deadly weapon by any of the accused person and in the absence of allegation of committing robbery by the peti¬tioners 2 and 3 Hemanta Naik @ Hemanta Ku. Naik and Tapanjit Das @ Dash, the order of cognizance under Section 397, I.P.C. is liable to be quashed. 5. Learned Addl, Govt. Advocate on the other hand advances argument supporting the impugned order and distinguishing the circumstance from the facts of Phool Kumar (supra). 6. It is stated at the Bar that the informant injured and the two eye-witnesses have supported the allegations made in the F.I.R. regarding the assault made by use of glass bottles to the head and face of the informant and his nephew and in that process the petitioner No.1 snatching away the cash of Rs. 10,115/-. 7. Keeping in view the stage at which the G.R. Case is presently pending and the aforesaid statement of the informant/injured and the eye-witnesses, this Court finds that this case stands in a different footing than the facts and cir¬cumstances involved in the case of Phool Kumar (supra) in as much as the Apex Court while assessing the impugned judgment of con¬viction (after tull dressed trial) considered the ingredients under Section 397, I.P.C. with reference to the allegation of use of fire arm at the time of robbery. The provision in Section 397, I.P.C. makes it clear that at the time of committing robbery or dacoity if the offenders (i) use any deadly weapon or (ii) cause any grievous hurt to any person, or (iii) attempts to cause death or grievous hurt to any person, then the offence under Section 397, I.P.C. is said to have been committed. 8. 8. It is the settled position of law that at the stage of taking cognizance the Magistrate takes cognizance of the offence and not of the offender and at the stage of trial i.e., at the stage of commencement of trial, the trial Court considers alle¬gation prima faciely made out and pass order for framing of charge or discharging the accused. In this case, if the offence under Section 397 I.P.C. shall be excluded then the case will be triable by the Court of Magistrate whereas if that offence shall be included then the case shall be triable by the Court of Ses¬sions. In spite of that fact, petitioners are not without any remedy inasmuch as at the stage of consideration of charge by the Court of Sessions, if the contention of the petitioners shall be entertained and in the result if they shall be discharged from the offence under Section 397, I.P.C. then naturally the case shall be handed over to the Magistrate concerned for trial and disposal according to law. On the other hand, if the trial Court shall find from the facts on record that there exists a prima facie case for framing of change under Section 397, I.P.C. against any of the petitioners, and for the offence under Section 394 I.P.C. against all or any of the accused persons, then the trial shall continue in the Court of Sessions notwithstanding the framing of charge for different offences against different ac¬cused persons. Under Such circumstance, at this stage, this Court is not in a position to quash the cognizance order for the offence under Section 397 I.P.C. and leaves that matter to be decided by the trial Court by looking to the allegations and the material evidence available in the case diary and the ingredience of law in Section 397, I.P.C. and 394 I.P.C. If at that stage, petitioner shall file any application under Section 227, Cr.P.C. enumerating the grounds in support of their claim for discharge that be duly and properly considered by the trial Court. 9. Learned counsel for the petitioner states that N.B.W.A. is pending execution against the petitioners in connection with that case. He further states that petitioners shall surrender and apply for bail by 11th February, 2002. 9. Learned counsel for the petitioner states that N.B.W.A. is pending execution against the petitioners in connection with that case. He further states that petitioners shall surrender and apply for bail by 11th February, 2002. Hence it is observed that if they shall surrender in the Court of S.D.J.M Dharmagarh and apply for bail then learned S.D.J.M. shall do well to consider their bail application in accordance with law but expeditiously. At this stage, learned counsel for the petitioners states that petitioners were on bail as per the order of the Court and after submission of charge-sheet N.B.W.A. was issued on the ground of non-appearance after issue of summons to the accused persons. Hence it is observed that if the petitioners shall satisfy learned S.D.J.M. that (i) they were on Court bail and (ii) summons were not served on them and if learned S.D.J.M. shall be satisfied about truthfulness of such grounds, then learned S.D.J.M. shall allow the petitioners to go on bail on suitable terms and conditions. But even on such circumstance also it is open to learned S.D.J.M. to refuse the prayer for bail if the petitioners in the meantime, have been involved in any other crime. The Criminal Misc.Case is dismissed with the aforesaid observation and direction. Intimate the Court below. Crl. Misc. Case dismissed.