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2017 DIGILAW 1224 (ORI)

Basanta Ku. Sahoo v. State of Orissa

2017-10-30

S.K.SAHOO

body2017
JUDGMENT : S.K. SAHOO, J. This application under section 482 of the Criminal Procedure Code has been filed by the petitioners Basanta Kumar Sahoo and Rashmi Ranjan Sahoo @ Bulu challenging the impugned order dated 05.02.2005 passed by the learned J.M.F.C., Jagatsinghpur in I.C.C. Case No. 103 of 2003 in which the learned Magistrate has been pleased to hold that there are sufficient materials to make out the offences under section 294 and section 436 of the Indian Penal Code which is exclusively triable by the Court of Session and accordingly, exercising its power under section 323 of Cr.P.C., directed the case to be committed to the Court of Session and further directed for supply of copies of the statements recorded under sections 200 & 202 of Cr.P.C. to the petitioners and for their appearance for the purpose of commitment. 2. Learned counsel for the petitioners contended that on a complaint petition filed by Suka Singha, the opp.party no.2 in the Court of learned S.D.J.M., Jagatsinghpur against the two petitioners, I.C.C. Case No. 103 of 2003 was registered. The learned S.D.J.M., Jagatsinghpur recorded the initial statement of the complainant and examined some witnesses during inquiry contemplated under section 202 of Cr.P.C. and after going through the complaint petition, initial statement of the complainant and the statements of the witnesses, came to hold that the offences under sections 294 and 435 of the Indian Penal Code are made out against the petitioners and accordingly, took cognizance of such offences vide order dated 06.09.2003. After appearance of the petitioners, it appears that the particulars of the offences under sections 294 and 435 of the Indian Penal Code were explained to them on 23.04.2004 to which they pleaded not guilty and claimed to be tried. The case was transferred from the Court of learned S.D.J.M., Jagatsinghpur to J.M.F.C., Jagatsinghpur. During course of hearing before charge, two witnesses namely Bijaya Singh and Raghunath Bhoi were examined as P.W.1 and P.W.2 on 05.08.2004 and the complainant examined himself as P.W.3 and another witnesses namely Sania Singh who is the son of the complainant was also examined as P.W.4 on 20.08.2004. The witnesses were also cross examined by the petitioners before charge. During course of hearing before charge, two witnesses namely Bijaya Singh and Raghunath Bhoi were examined as P.W.1 and P.W.2 on 05.08.2004 and the complainant examined himself as P.W.3 and another witnesses namely Sania Singh who is the son of the complainant was also examined as P.W.4 on 20.08.2004. The witnesses were also cross examined by the petitioners before charge. After closure of the prosecution evidence before charge on the memo filed by the complainant, the case was posted for framing of charge and on 06.11.2004 the petitioners filed a petition under section 245(1) of Cr.P.C. for their discharge. After hearing both the parties, on 05.02.2004 the impugned order was passed by the learned Magistrate. 3. It is contended by Mr. Sangram Das, learned counsel for the petitioners that even though cognizance of offences has been taken under sections 294 & 435 of the Indian Penal Code and particulars of such offences were explained to the petitioners to which they pleaded not guilty, without any further materials, the learned trial Court erroneously held it to be a case under section 436 of the Indian Penal Code and exercised its power under section 323 of Cr.P.C. and directed for commitment of the case to the Court of Session. It is further submitted that there is absolutely no material so as to attract the ingredients of the offence under section 436 of the Indian Penal Code in as much as during the initial statement as well as in the inquiry under section 202 Cr.P.C., it was the case of the complainant that a shed was set on fire and during course of evidence before charge, they have developed the case and stated that it was a dwelling house and therefore, the impugned order suffers from non-application of mind and the same should be quashed. None appears on behalf of the complainant-opp.party no.2. Learned counsel for the State on the other hand supported the impugned order and contended that there are ample materials under section 436 of the Indian Penal Code on record and therefore, the learned Magistrate has not committed any illegality in passing the impugned order. 4. None appears on behalf of the complainant-opp.party no.2. Learned counsel for the State on the other hand supported the impugned order and contended that there are ample materials under section 436 of the Indian Penal Code on record and therefore, the learned Magistrate has not committed any illegality in passing the impugned order. 4. On perusal of the complaint petition, it appears that the complainant has mentioned in the complaint petition that in spite of the request of the complainant and the witnesses, the residential house of the complainant was burnt into ashes along with all the household articles. In the initial statement, the complainant has also stated that the accused persons set fire to her house and her clothes and utensils etc. were burnt. The witness no.1 Raghunath Bhoi in his statement recorded during inquiry under section 202 Cr.P.C. has stated that the accused persons set fire to the temporary shed of the complainant. The witness no.2 Sania Singh gave his statement during inquiry under section 202 Cr.P.C. that they were constructing a thatched shed which was set on fire. Witness no.3 Bijaya Singh in his statement recorded under section 202 of Cr.P.C. has stated that the accused persons set fire to the shed of the complainant. Even though there are some discrepancies in the statements of the witnesses given during inquiry contemplated under section 202 of Cr.P.C. and during recording of evidence before charge, I am of the view that at the stage of trial, the petitioners can have ample scope to confront the witnesses relating to their previous statements made during inquiry under section 202 of Cr.P.C. and what would be the effect of such confrontation, the same can be taken into account by the learned trial Court at the appropriate stage. Learned Magistrate has got ample power under section 323 of Cr.P.C. to commit a case to the Court of Session, if it appears to him at any stage of the proceeding before signing the judgment that the case is one of which is ought to be tried by the Court of Session. The Magistrate has to make up his mind on the basis of the nature of the case disclosed before him. The section confers in general terms a wide and comprehensive power on a Magistrate and it depends upon his subjective satisfaction. The Magistrate has to make up his mind on the basis of the nature of the case disclosed before him. The section confers in general terms a wide and comprehensive power on a Magistrate and it depends upon his subjective satisfaction. Therefore, when the materials came on record during recording of evidence before charge that the house in question was a dwelling house which was set on fire and household properties were destroyed on account of such fire, I find no illegality in the order of the learned Magistrate in holding it to be a case under section 436 of the Indian Penal Code and directing commitment of the case to the Court of Session. Therefore, the impugned order suffers from no illegality and I am not inclined to interfere with the same invoking my inherent power under section 482 of Cr.P.C. Needless to say that the learned trial Court shall consider the materials that will come on record during trial and he will not be influenced by any observation which is made in this judgment which is meant for the purpose of disposal of this application under section 482 of Cr.P.C. It is stated at the bar that the complainant is now dead. Since the case is now held to be triable by the Court of Session, the learned Sessions Court shall look into the matter and proceed in accordance with law.