D.G.R.PATNAIK, J. - (1.) PETITIONER has prayed for quashing the order dated 31.7.2004 passed by the 1st Additional Sessions Judge, Bermo at Tenughat dismissing the revision application being Cr. Revision No. 57 of 2004/2 of 2004 filed by the petitioner against the order dated 29.3.2004 passed by the Additional Chief Judicial Magistrate, Bermo at Tenughat, whereby the learned court below had taken cognizance of the offences under Sections 302/201 IPC. The main ground advanced by the petitioner is that the impugned order has been passed without application of judicial mind to the materials placed on the record and also that the learned 1st Additional Sessions Judge has failed to appreciate the fact that the learned Magistrate should not have taken cognizance of the offences against the petitioner even on the basis of the police report, since the police had not submitted any charge sheet against the petitioner, nor has recommended trial of the petitioner for the said offences.
(2.) FACTS of the case in brief is that a case vide Bokaro P.S. Case No. 22 of 2003, corresponding to G.R. No. 149 of 2003, was registered on the basis of the fardbeyan of the informant Jhuri Bai which was recorded on 28.2.2003. It is alleged that the husband of the informant (deceased) was an alcoholic and he had taken loan from various moneylenders on account of which, her husband used to remain always disturbed and had even absented himself from his duties. It is alleged that about two days prior to the date of lodging of the F.I.R., the present petitioner along with some unknown persons visited the informant's house and demanded repayment of his money. The informant's husband promised to pay the loan after getting his monthly salary. Two days later, that is, in the morning of 28.2.2003 petitioner had again visited the informant's house demanding his money and had taken away the husband of the informant. Later, in the evening, the dead body of the informant's husband was found hanging from a tree within the jungle shunted behind Jarangdih upper Bangal. The informant has suspected that the petitioner along with others had committed the murder of the deceased. The case was investigated by the police and final report was submitted stating that it was a case of mistake of fact since the deceased had committed suicide and it was and not a case of murder. On the basis of the final report submitted by the police, the learned Additional Chief Judicial Magistrate issued notice to the informant to appear, but she had not appeared. Nevertheless, learned Magistrate took cognizance of the offences under Sections 302/201 IPC against the petitioner by his order dated 29.3.2004. Against the aforesaid order, petitioner had preferred a criminal revision vide Cr. Revision No. 57 of 2003/2/2004 before the learned Sessions Judge, which was eventually heard and disposed of by the 1st Additional Sessions Judge, by his order dated 31.7.2004 dismissing the revision application filed by the petitioner. Learned Counsel for the petitioner submits that the impugned order of cognizance, as passed by the learned court below, is against the weight of evidence and materials on record and is also against the principle of procedural law, since the magistrate should not have taken cognizance for the offences, neither could he proceed against the petitioner for the main reason that though, petitioner was named as an accused in the F.I.R., but he was not charge sheeted after conclusion of the investigation. Referring to the case diary, copy of which has been received in this case, learned Counsel explains that in course of investigation, no such evidence could be collected against the petitioner to suggest, even remotely, his involvement in the offence. In fact, the investigation has revealed that the deceased had committed suicide and this fact has been confirmed by the postmortem report. Learned Counsel explains that merely on the basis of some vague and wild suspicion, petitioner cannot be put on trial for the offences in respect of which, there is no cogent and reliable evidence. Learned Counsel explains further that the observations made by the learned Magistrate as also by the learned Additional Sessions Judge, in their respective impugned orders, that the petitioner had taken away the deceased from his house in the morning and thereafter, deceased was found dead hanging from the tree in the evening, is also a mistake of fact as because, in course of investigation, allegation of the informant that the petitioner had visited her house in the morning and had taken away the deceased along with him, has been denied and contradicted by the own nephew of the informant and other members of the informant's family. Learned Counsel further invites attention to a copy of the petition (annexure -1 to the supplementary affidavit) purported to have been filed by the informant before the learned Magistrate, wherein it has been stated by the informant that she is aware that the police had submitted final report in favour of the accused and that she does not want to file any protest petition against the final report of the police.
(3.) THOUGH vakalatnama appears to have been filed by the learned Counsel on behalf of the opposite party No. 2, but nobody appears on her behalf. However, learned Counsel, who has appeared on behalf of the State, has claimed that there is no infirmity or illegality in the order of cognizance as passed by the learned Magistrate, neither is there any infirmity in the order passed by the revisional court, since both the orders have been passed after elaborate discussion of the evidence and materials available on record.;