Skip to content


Nila Naik and ors. Vs. Shyamsundar Mohapatra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 70 of 1965
Judge
Reported inAIR1966Ori95; 1966CriLJ566
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 28, 346 and 439; Indian Penal Code (IPC) - Sections 302
AppellantNila Naik and ors.
RespondentShyamsundar Mohapatra
Appellant AdvocateR. Dass and ;B. Dalai, Advs.
Respondent AdvocateSrinivas Misra (2), Adv.
DispositionPetition dismissed
Excerpt:
.....that if the acts alleged by the prosecution make out an offence of a more serious nature triable by a court of session, the trial of such offence by a magistrate of the first class for a lesser offence is without jurisdiction......under section 395, i. p. c. was made out.7. 'robbery' has been defined in section 390, i. p. c. theft is 'robbery' if, in orderto the committing of the theft, or in committingthe theft, or in carrying away or attempting tocarry away property obtained by the theft, theoffender, for that end, voluntarily causes orattempts to cause to any person death orhurt or wrongful restraint, or fear of instantdeath or of instant hurt, or of instant wrongfulrestraint. 'dacoity' is defined in section 391 i. p. c. when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting.....
Judgment:
ORDER

G.K. Misra, J.

1. The petitioners were convicted under Section 379.1. P. C. and sentenced to pay a fine of Rs. 100 each, in default to undergo simple imprisonment for three months each. An appeal by them was dismissed by the learned Sessions Judge.

2. It is unnecessary to give the facts in detail. Prosecution case is that the land was in possession of the complainant and that he grew paddy in 1963. On 1st December 1963 the petitioners forcibly entered into the land and cut and carried away the paddy. The defence is one of denial. Petitioners did not claim that they grew the paddy or were in possession of the land. They merely denied the reaping of the paddy by them and alleged that they were falsely implicated. The Courts below concurrently held that the complainant grewpaddy and that on the date of occurrence the petitioner cut and carried away the paddy dishonestly.

3. In view of the defence, the only question that arose for consideration was whether the petitioners cut and carried away the paddy. The finding in this regard of the Courts below is a pure finding of fact supported by evidence and cannot be interfered with in revision.

4. Mr. Das attempted to assail the finding of fact by advancing an argument that the complaint was filed late without any explanation and that the courts below without properly scanning the evidence made a general observation that the prosecution case was acceptable. The contention indirectly assails the finding. After having gone through the materials on record I am satisfied that the Courts below came to the correct conclusion.

5. The only important question raised by Mr. Das was that on the facts alleged in the complaint petition, a case of dacoity was made out and that the S. D. M., Bhadrak, who was Magistrate 1st Class, had no jurisdiction to try the case which was triable by a court of Session. There is no dispute that an offence of dacoity is triable only by a Court of Session while that of robbery can be tried by a Magistrate of the 1st Class.

It is to be noted that no objection was taken to the absence of jurisdiction before the courts below and it is raised for the first time in this Court. Position of law is, however, well settled that if the acts alleged by the prosecution make out an offence of a more serious nature triable by a Court of Session, the trial of such offence by a Magistrate of the First Class for a lesser offence is without jurisdiction. To illustrate, if the facts alleged establish a case of murder under Section 302, I. P. C., a Magistrate of First Class cannot try the case for the lesser offence of grievous hurt which is within his jurisdiction by eschewing out some elements from Section 302 I. P. C., to bring the case under Section 325 I. P. C. For this purpose generally the allegations mentioned in the complaint petition or the F. I. R. would determine the question of jurisdiction.

6. In this case the complaint was filed under Sections, 379, 143 and 504, I. P. C. The offences under these sections are triable by a Magistrate of First Class. The sections mentioned in the complaint petition may not always be a safeguard to determine the substance of the complaint. The facts averred must be closely scrutinised to determine the real nature of the offence. In body of the complaint, the petitioners were described as Goondas, rowdies and litigants. The petitioners with a large number of other persons came to the spot with lathis and knives and unlawfully trespassed into the disputed land forcibly, cut the paddy and removed the same to the thrashing floor of accused 1 to 3. When the complainant protested, they scolded him in filthy language and were ready to assault him--Accused 4--threatened the complainant that he would cut his neck with the knife.

In the complainant's statement on oath, many of these details were not given. He stated that the accused cut and carried away the paddy. Then he made a statement that on his protest he was threatened with assault.

The question for consideration is whether on these allegations an offence of dacoity under Section 395, I. P. C. was made out.

7. 'Robbery' has been defined in Section 390, I. P. C. Theft is 'robbery' if, in orderto the committing of the theft, or in committingthe theft, or in carrying away or attempting tocarry away property obtained by the theft, theoffender, for that end, voluntarily causes orattempts to cause to any person death orhurt or wrongful restraint, or fear of instantdeath or of instant hurt, or of instant wrongfulrestraint.

'Dacoity' is defined in Section 391 I. P. C. when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit 'dacoity'.

On a perusal of the complaint petition and the complainant's statement on oath, the facts do not make out a case of robbery even. Admittedly no hurt had been caused. Facts do not indicate that any attempt to cause hurt was made in order to the committing of theft or in committing the theft or attempting to carry away the property obtained by the theft. The statement on oath makes out a simple case of theft. Threat, as mentioned therein, was occasioned subsequent to the act of carrying away the paddy.

That apart, even assuming that threat was given, it was only by the accused No. 4. If an offence of robbery was at all committed, it was by accused No. 4 alone. Materials are absent to show that other accused attempted to commit or aided the commission of offence of robbery The offence of dacoity is not accordingly made out against the accused persons. The trial by the Magistrate, First Class was, therefore not without jurisdiction.

8. In the result, the revision fails and isdismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //