DEBAKI SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order -dated 28.9.2004 passed by the S.D.J.M., Udala, in G.R. Case No.64 of 2003 wherein he refused to discharge the accused -petitioner of the offence under Section 406 of I.P.C.

(2.) BEREFT of unnecessary details the facts leading to filing of this revision is that on 27.2.1994 the O.I.C. of Kaptipada Police station seized the trekker bearing No. OIX -4950 on the allegation that it was being used by accused Raj Kishore Mallick in committing offence under Section 379/411 I.P.C. in connection with Kaptipada P.S. case No.3 of 1994 corresponding to G.R. case No. 12 of 1994 of the Court of S.D.J.M., Udala. While the case was sub -judice, the petitioner claiming herself to be the registered owner of the said vehicle filed a petition under Section 457 Cr.P.C. for interim release of the same in her favour. The petition was allowed subject to furnishing cash security of Rs.15,000/ - on condition that she would not dispose of the vehicle in any manner till final disposal of the case and produce the same before the Court as and when required. After conclusion of the trial of G.R. Case No.12 of 1994 the S.D.J.M. held the accused not guilty of the aforesaid offences and acquitted him thereof on 15.9.2000. However, he ordered that the seized articles be confiscated to the State four months after the appeal period is over, if there is no appeal and in case of appeal subject to the decision of the appellate Court. On 11.3.2002 the petitioner filed a petition before the S.D.J.M., Udala for refund of Rs.15,000/ - she had furnished as security for interim release of the vehicle in her favour along with accrued interest thereon, but it was rejected.

(3.) WHILE the matter stood thus, on 25.2.2003 the S.I. of Police, Kaptipada P.S. lodged an F.I.R. before O.I.C. of the same P.S. on the allegation that even though the petitioner had undertaken to produce the aforesaid vehicle before the Court of S.D.J.M., Udala as and when required, in spite of Courts order she did not produce it before him. In absence of the O.I.C. the A.S.I. himself registered Kaptipada P.S. case No.9 of 2003 giving rise to G.R. Case No.64 of 2003. After completion of investigation, charge sheet was submitted against the accused -petitioner for the offence under Section 406 I.P.C. Cr.P.C. On 3.9.2004 a petition under Section 239 Cr.P.C. was filed before the S.D.J.M., Udala on behalf of the petitioner to discharge her of the said charge. As per her petition the said vehicle was given in N.K. garage, Chandikhol for repair but due to want of fund she could not get it back till 9.10.2002 when it was seized by the O.I.C. of Barachanna P.S. and given in zima of the garage owner, Niazuddin. So there was no occasion for the A.S.I. to lodge F.I.R. on 25.2.2003 against the accused -petitioner on accusation of commission of offence under Section 406 I.P.C.