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2005 DIGILAW 678 (ORI)

Sabitri Jena v. Kamalakanta Swain

2005-12-05

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. — This CRLMC arises out of a petition filed under Section 482 of Cr.P.C. challenging the order dated 9.3.2005 passed by the J.M.F.C., Salipur in I.C.C. case No.126 of 2004 wherein he committed the said case to the Court of Special Judge-cum-Sessions Judge, Cuttack in absence of the accused-opp.party giving rise to S.T. case No.236 of 2005. On the complaint made by the petitioner, the aforesaid case was registered against the accused-Opp.party. After examining the complainant-petitioner and holding inquiry under Section 202 of Cr.P.C. cognizance was taken for the offence under Section 294 of I.P.C. and Section 3 of the S.C. & S.T. (P.A.) Act and summons was issued to the accused-Opp.party for his appearance fixing the case to 9.3.2005. On 9.2.2005 the accused-petitioner through his counsel filed a petition under Section 205 of Cr.P.C. to dispense with his personal attendance in the Court on each date of posting of the case and to permit him to appear through his counsel. The petition was allowed. On 9.3.2005 the statement of the complainant-petitioner and the statement recorded under Section 202 of Cr.P.C. were supplied to the learned counsel ap¬pearing for the accused-Opp.party in terms of Section 208 of Cr.P.C. in absence of the accused-opp.party. The case was commit¬ted to the Court of Special Judge-cum-Sessions Judge,Cuttack and the counsel appearing for the accused-opp.party was directed to give an undertaking that the accused-opp.party would appear before the Court of Special Judge-cum-Sessions Judge, Cuttack on 31.3.2005. Accordingly an undertaking was filed. Being aggrieved with the order of commitment of the case to the Court of Special Judge-cum-Sessions Judge, Cuttack in absence of the accused-opp.party, the complainant-petitioner has preferred this CRLMC. Learned counsel for the petitioner submitted that as re¬quired under Section 208 of Cr.P.C. copy of the initial statement of the complainant and the evidence of witnesses recorded under Section 202 of Cr.P.C. ought to have been supplied to the ac¬cused-opp.party in person. Learned counsel for the petitioner submitted that as re¬quired under Section 208 of Cr.P.C. copy of the initial statement of the complainant and the evidence of witnesses recorded under Section 202 of Cr.P.C. ought to have been supplied to the ac¬cused-opp.party in person. It was the duty of the Court below to direct the accused-opp.party to appear before him in person to receive the documents in terms of Section 208 of Cr.P.C. But instead of directing for personal appearance of the accused-opp.party, the J.M.F.C. supplied the copy of the document to his counsel which is against the provision of Section 208 of Cr.P.C. Copy of the documents either in terms of Section 207 or 208 of Cr.P.C. are supplied to the accused to enable him to know the allegation made against him, so as to facilitate him to prepare his defence. Even if such copies are not supplied by the Magis¬trate to the accused the committal proceeding cannot be vitiated, if the same are supplied to him by the Sessions Judge. So, the commitment proceeding cannot be vitiated on the ground that the copy of documents were supplied to the counsel for the accused-opp.party instead of the accused-opp.party himself. Learned counsel for the petitioner further submitted that the offence under Section 3 of the S.C. & S.T. (P.A.) Act is exclusively triable by the Special Judge-cum-Sessions Judge. So, the Court below ought not have granted the petition under Section 205 of Cr.P.C. in favour of the accused-opp.party. Admittedly the Magistrate has no power to grant bail in an offence under Section 3 of the S.C. & S.T. (P.A.) Act. So the Court below ought not have allowed the petition under Section 205 of Cr.P.C. The ac¬cused-opp.party was not released on bail till the case was com¬mitted to the Court of Special Judge-cum-Sessions Judge because of the order passed under Section 205 of Cr.P.C. The J.M.F.C. ought to have directed the accused-opp.party to appear in person before him at least on the date of commitment of the case to the Court of Special Judge-cum-Sessions Judge as required under Section 209 of Cr.P.C. Under such facts and circumstances the order of commitment of the case to the Court of Special Judge-cum-Sessions Judge, Cuttack is set aside. The accused-petitioner shall appear before the Court below i.e. J.M.F.C., Salipur within one month hence. The accused-petitioner shall appear before the Court below i.e. J.M.F.C., Salipur within one month hence. If he appears before the J.M.F.C., Salipur within the time stipulat¬ed, he shall release him on bail on suitable terms and conditions as would be deemed just and proper and commit the case to the Court of Special Judge-cum-Sessions Judge, Cuttack. The Special Judge-cum-Sessions Judge, Cuttack, shall remand the ICC case No.126 of 2004 giving rise to S.T. No.236 of 2005 to the Court of J.M.F.C., Salipur within a fortnight hence. Accordingly, the CRLMC is disposed of. CRLMC disposed of.