JUDGMENT
P.K. Tripathy, J.
1. This application under Section 482. Cr.P.C. is filed by P. Simadri alias Reddy, one of the accused persons in I.C.C. Case No. 59 of 1996 of the Court of S.D.J.M., Berhampur with a prayer to quash the order of cognizance dated 10.8.1998. The complainant is opposite party in this case. The three other co-accused persons have not been added as party to this proceeding.
2. The undisputed fact is that the opposite party filed a complaint, which was registered as I.C.C.Case No. 59 of 1996, in which he alleged regarding forcible entry and removal of some quantity of mangoes from Survey Nos. 1197 and 1198 of holding Nos. 404/142 and 404/122 in village Tarinipentha measuring an area of Ac. 0.785 decimals having 80 mango trees. Complainant alleged that on 7.5.1996 at 5 p.m. the accused persons trespassed into the said land and committed theft of two quintals of mango and when protested by the wife of Parsu Pradhan they abused and threatened her to kill. The complainant alleged that the tope has been leased out by him to Parsu Pradhan for the year 1996. On receipt of the complaint and after examining the complainant, learned S.D.J.M. conducted an inquiry under Section 202, Cr.PC. and in that inquiry complainant examined himself as well as the wife of Parsu Pradhan and one witness named Domburu Pradhan. It revealed from the certified copy of the statements of the complainant that on 7.5.1996 at about p.m. accused persons entered into the tope and by use of force, plucked and took away about 500 kgs of mangoes in spite of protest of Basanti, the wife of Parsu Pradhan. Accused persons again plucked 200 kgs. of mangoes and while collecting the same, Basanti Pradhan again protested, they did not pay any heed to such protest but threatened her. Basanti raised nullah and Drburu Pradhan and others reached there and detained the accused persons. On receipt of the information complainant went and found the accused persons and the mangoes and thereafter went to the police-station and reported the matter. Police came and took the mangoes and the accused, but thereafter police did not take any action.
3. Basanti Pradhan as witness No. 1 stated that she knows accused Simadri only. She further stated that her husband had taken the tope on lease. On the date of occurrence at about 5 p.m. when she was in the tope, accused persons committed theft of mangoes from the mango tope, to which she protested and raised hullah when threatened by the accused persons, and Damburu Pradhan and other witnesses arrived at the spot. By then accused persons had gathered mangoes in six sacks.She asked the accused persons not to pluck mangoes and at that the accused persons left the place with three sacks of mangoes. At about 7 p.m. her husband arrived at the spot and she informed the occurrence to him. Domburu Pradhan, the P.W.2 stated that he knows the accused Simadri only and that on hearing a shout raised by Basanti, he along with four others came up on the mango tope and found Simadri with three others taking away six sacks of mangoes. He and others intervened. Simadri threatened to assault, but they did not allow removal of the mangoes. At about 6 p.m. the complainant reached the mango tope and thereafter he went to the police-station and reported the matter. Police came and took away the mangoes and accused Simadri and his associates.
4. On completion of inquiry on 7.10.1996. learned S.D.J.M. on assessment of the aforesaid statements found that no offence was made out for the offence under Sections. 447/427/379/294 and 506 of the Indian Penal Code. So far as the offence under Section 379, IPC is concerned, he recorded the finding that Parsu Pradhan being the owner of the mangoes (having taken the same on lease in the year of occurrence) having not been examined and besides that there being contradictory evidence going to the root of the allegation of removal of mangoes, he did not find existence of a prima facie case even for the offence under Section 379, IPC and accordingly he dismissed the complainant in accordance with the provision under Section 203, Cr.P.C.
5. Complainant preferred Criminal Revision No. 14 of 1997 in the Court of Sessions Judge, Sambalpur. It reveals from the certified copy of the order-sheets of the S.D.J.M. that on 15.9.1997, learned S.D.J.M. received the L.C.R. as well as the order of revisional Court dated 18.4.1997. It appears from that order that the dismissal order of the complaint was set aside and the matter was remitted back for disposal. In view of the observations made by the revisional Court (the observations of the revisional Court not noted in that order), learned S.D.J.M. thought it proper to make a fresh inquiry and the complainant was directed to produce his witnesses. From 30.9.1997 till 24.7.1998, complainant neither appeared nor produced any witness and on marry occasions applied for adjournments. Ultimately, on 24.8.1998 learned S.D.J.M. rejected the application for adjournment and posted the case to 10.8.1998 for orders. On 10.8.1998, learned S.D.J.M. re-assessed the evidence of the aforesaid witnesses recorded in the earlier inquiry under Section 202, Cr.P.C. and took cognizance of the offence under Sections. 447/427/379/294 and 506, IPC read with Section 34, IPC and issued process for the appearance of the accused persons.
That order is under challenge in this application.
6. Both the parties advanced argument relating to the principle of law as to in what type of cases, order of cognizance should be interfered with and in that type of cases it should not be. A detailed documentation in that respect or reference to the case law filed by the parties is not necessary because the point raised by the petitioner against the order of cognizance is liable to be considered and allowed on the ground that the later order of the learned S.D.J.M. virtually amounts to reviewing of the earlier order passed under Section 203, Cr.P.C. which is impermissible under the law.
7. In that respect, peculiarly enough, neither party has produced a copy of the order passed by the Court of Session relating to the observations made while setting aside the order under Section 203, Cr.P.C. Be that as it may, learned S.D.J.M. after receipt of the record on remand, passed the order to venture into an inquiry under Section 202, Cr.P.C. afresh. Therefore, it is clear from that order that learned S.D.J.M.did not propose to peruse the statement already recorded nor he proposed to make a further inquiry but he wanted to make a fresh inquiry. Under such circumstance, in the absence of examination of any witness by the complainant, there was no reason for the learned S.D.J.M. to pass an order taking cognizance.
8. The provision under Section 202, Cr.P.C. clearly mandates that after receipt of the complaint and examination of the complainant on oath, if the Magistrate thinks fit, he may postpone the matter of issue of process and enter into an inquiry under that provision (Section 202, Cr.P.C.) to ascertain the truth or otherwise of the allegations in the complaint; When the S.D.J.M. on 7.10.1996, on assessment of the statement of witnesses, was not satisfied about truthfulness in the allegations made and, therefore, dismissed the complaint, it is not understood how the S.D.J.M. on 19.8.1998, could find existence of a prima facie case from the same statements. Though the order of taking cognizance in all cases need not be a speaking one, but under the peculiar facts and circumstances of this case when learned S.D.J.M. virtually made a review of the earlier order, it was incumbent on his part to assign the reason for accepting the statement of witnesses on a reasonable ground and indicating therein how the previous assessment was incorrect, and in that respect learned S.D.J.M. in his order dated 10.8.1998, has done nothing in that way but without any application of mind, in a sweeping manner, passed the order in taking cognizance of the offence. As stated earlier, no case was made out for making a review of the earlier order, and, therefore, on that score alone the impugned order of the S.D.J.M. is found to be illegal and not sustainable.
9. For the reasons indicated above, the impugned order of taking cognizance vide order dated 10.8.1998 in I.C.C.Case No. 59 of 1996 of the Court of S.D.J.M., Berhampur stands rejected, and accordingly, the Criminal Misc. Case is allowed.