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Judgment
Dr. S. Muralidhar, CJ
The case of the Petitioner is that originally an FIR i.e. Fategarh P.S. Case No.184 of 2017 was lodged arising out of a very same incident under Sections 279/304(A) IPC. A charge-sheet had also been filed pursuant to the said investigation and no protest petition was filed by the Informant.
More than a year thereafter, a petition under Section 156(3) Cr.P.C. was filed now alleging that more serious offences under Sections 341/120(B)/302 read with 34 IPC were attracted.
The grievance is that overlooking the settled position in law as explained in Babu Venkatesh v. State of Karnataka (2022) 5 SCC 639, the learned J.M.F.C., Khandapada has passed the impugned order dated 9th May, 2018 in 1.C.C. No.50 of 2018 mechanically asking the IIC of Fategarh Police Station to register a case by treating the complaint petition as an F.I.R.
Indeed the Court notes that in the impugned order, there is no mention of the fact that there was an earlier F.I.R. i.e. Fategarh P.S.Case No.184 of 2017 in which a charge-sheet has already been filed and no protest petition was filed asking that the charge-sheet be filed for a graver offences. The J.M.F.C. had to necessarily deal with the said issue before proceeding to directing the IIC to simply register the complaint as another F.I.R.
For the aforementioned reasons, the impugned order dated 9th May, 2018 is set aside and 1.C.C. No.50 of 2018 is directed now to be listed before the J.M.F.C., Khandapada on 1st May, 2023 for the issue to be considered afresh. In other words, the Magistrate will again examine the complaint of the Opposite Parties along with the affidavit and after taking note of the previous developments in the case, pass a fresh order in accordance with law.
The petition is disposed of in the above terms. A copy of this order be communicated to the J.M.F.C., Khandapada forthwith. Issue an urgent certified copy of this order as per rules..
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