Padmabati Naik vs State of Orissa and Others

B.K. Patel, J.—Heard learned counsel for the petitioner, learned counsel for the State appearing for opp. party No. 1 and learned counsel for opp. party Nos. 2 to 13. In this revision, petitioner has assailed legality of impugned order dated 30.1.2012 passed by the learned S.D.J.M., Kamakhyanagar in ICC No. 73 of 2011.

Petitioner is the complainant and opp. party Nos. 2 to 13 are the accused persons before the Court below. Grievance of the petitioner is that though allegation of commission of offence u/s 3 of the S.C. & S.T. (P.A.) Act has also been made in the case, by the impugned order the Court below took cognizance of offences under Sections 341/294/323/34 of the IPC only.

It is contended by the learned counsel for the petitioner that not only in the complaint petition made allegation of commission of offence u/s 3 of the commission of offence u/s 3 of the SC & ST (PA) Act against the accused persons but also in course of enquiry u/s 202 of the Cr.P.C. it was alleged that petitioner is a member of Scheduled Caste whereas the accused persons do not belong to any Scheduled Caste or Scheduled Tribe. However, learned Court below has failed to take note of such allegation made in course of enquiry u/s 202 of the Cr.P.C.

Learned counsel for opp. party Nos. 2 to 13 submits that in the absence of document placed by the complainant in course of enquiry u/s 202 of the Cr.P.C. to indicate that none of the accused persons is a member of Scheduled Caste and Scheduled Tribe, there is no infirmity in the impugned order.

Having heard the rival submissions and upon perusal of materials on record including the impugned order and statements of the witnesses examined in course of enquiry u/s 202 of the Cr.P.C., it is found that witness No. 2 examined by the complainant has categorically deposed that accused persons are Sabarnas. While passing the impugned order refusing to take cognizance of offence u/s 3 of the SC & ST (PA) Act, the learned S.D.J.M., Kamakhayanagar appears to have lost sight of such allegation made by witness No. 2. In such circumstances, it is found just to remit the matter back to pass fresh order in the matter of taking of cognizance upon consideration of implication of the statement of witness No. 2 to the above effect.

Accordingly, the revision is disposed of directing the learned S.D.J.M., Kamakhayanagar to reconsider and pass fresh order in the matter of taking of cognizance in the light of observations made above. Issue urgent certified copy.