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2004 DIGILAW 137 (ORI)

Kalandi Ch. Parida v. State of Orissa

2004-03-09

L.MOHAPATRA

body2004
JUDGMENT L. MOHAPATRA, J. — This revision is directed against the order dated 31.10.2003 passed by the learned S.D.J.M., Kamakshyanagar in G.R. Case No. 256 of 2003 taking cognizance of offence under Section 302/34 of the Penal Code against the present petitioners. 2. One Sudasa Parida, wife of the deceased lodged an F.I.R. on 27.6.2003 alleging therein that she along with her deceased husband had gone to Kundanali Chhak for work. The ac¬cused persons were working in their field where there was some altercation between the accused persons and the deceased husband of the informant and the accused persons threatened to kill him. Previous to that incident also two of the accused persons had complained against the informant and her deceased husband before the Panchayat and much prior to the date of occurrence the accused persons had also threatened to kill the deceased husband of the informant. On the date of occurrence the informant had gone to the Panchayat Office and found the same to be locked. When she was searching for her husband, she saw him lying near the cow-shed of one Manua Parida and also saw some of the accused persons as¬saulting her husband. When she shouted, it is alleged that all the accused persons ran away from the spot. On the basis of such allegation investigation was taken up and charge-sheet was sub¬mitted against the accused Chihuru Parida, Tirtha Parida, Susha alias Sushanta Parida, Lali Mohan Parida and Mahulia alias Madhab Parida. So far as the present petitioners are concerned, charge sheet was not submitted. However, the learned Magistrate on perusal of 161 statement of the informant observed that the present petitioners have also participated in commission of the offence and took cognizance accordingly. 3. Shri Panda, learned counsel appearing for the petition¬ers submitted that the informant was examined twice by two differ¬ent Investigating Officers and on both the occasions she has not stated to have seen the occurrence, but in her statement it is alleged that near the place of occurrence she found the deceased lying and some of the accused persons running away from the spot. There is no other evidence in the case diary to show that the petitioners have participated in commission of the offence as alleged and, therefore, the I.O. in absence of any material rightly did not submit the charge sheet against the petitioners. There is no other evidence in the case diary to show that the petitioners have participated in commission of the offence as alleged and, therefore, the I.O. in absence of any material rightly did not submit the charge sheet against the petitioners. The learned counsel further challenged the impugned order on the ground that since the offence is triable by the Court of Session, the learned Magistrate had no jurisdiction to take cognizance of the offence in respect of the accused persons who have not been charge sheeted. The learned Additional Standing Counsel on the other hand, referring to the case diary submitted that there are some materials against the petitioners to connect with the offence and in view of Section 34 of the Penal Code even if the contention of the learned counsel for the petitioners is accept¬ed, they are liable for commission of the offence. 4. From the case diary it appears that the informant was first examined on 27.6.2003. In her statement under Section 161 Cr.P.C. she has specifically stated that while she was searching for her husband, she found him lying near the cow-shed of one Manua Parida with serious injuries and also saw accused Susa Parida, Dhira Parida, Chihiru Parida, Tirtha Parida, Kalia Pari¬da, Mahulia Parida, Baicha Parida, Manua Parida, Kuna Parida and Lalita Parida running away from the place. Later on in the same statement she has further stated that she had seen accused Tirtha Parida throwing a Tangia near the body of her husband and running away from the spot. The informant was again examined on 1.7.2003 under Section 161 Cr.P.C. In the said statement she has only repeated what she had stated earlier. From the statement of one Akshya Sahoo who claims to be an eye witness, it appears that Chihiru, Lalita, Tirtha and Susa participated in commission of the offence. This witness has not implicated the present peti¬tioners to have participated in commission of the offence. Simi¬lar is the statement of another witness namely, Chinta alias Chintamani Parida. In view of such nature of evidence collected during investigation, I.O. did not submit the charge sheet against the present petitioners. The question that arises for consideration is whether the materials available on record can be considered as prima facie materials to take cognizance of the offence so far as the present petitioners are concerned. In view of such nature of evidence collected during investigation, I.O. did not submit the charge sheet against the present petitioners. The question that arises for consideration is whether the materials available on record can be considered as prima facie materials to take cognizance of the offence so far as the present petitioners are concerned. Even accepting the statement of the informant, it appears that she had seen the accused persons running from the spot. The other two eye witnesses referred to earlier have specifically stated the names of the accused persons who participated in commission of the offence. Under these circumstances, the Court has to consider whether prima facie materials are available against the petition¬ers for taking cognizance or not. The learned Magistrate in the impugned order has only referred to the 161 statement of the informant, but has not given any reason as to why the aforesaid materials prima facie indicate the participation of the present petitioners in commission of the offence. More over, the present petitioners having not been charge sheeted, the question that arises for consideration is whether the learned Magistrate had jurisdiction to take cognizance of offence in a case triable by the Court of Session against such accused persons who have not been charge sheeted. The Apex Court as well as this Court have held that in sessions triable cases the Magistrate had no juris¬diction to add names to the list of accused persons charge sheeted and he can only add in cases triable by a Magistrate. The learned Magistrate while taking cognizance has also lost sight of the said decisions. I, therefore, quash the order dated 31.10.2003 passed in G.R. Case No. 256 of 2003 and direct the learned Magistrate to reconsider the question taking cognizance of the offence against the present petitioners in the light of the observation made above. The Criminal Revision is accordingly disposed of. Crl. Revision disposed of.