P.K. Tripathy, J.
1. Heard and on consent of the parties, the Suo Motu Criminal Revision is disposed of at the stage of admission in the following manner.
2. A report was submitted on 21.04.2009 by the learned Sessions Judge, Koraput intimating the Court that opposite party No. 1 toeing the then S.D.J.M., Nabarangpur tried and disposed of G.R. Case No. 332 of 2008 when cognizance of the offence under Section 304, I.P.C. was taken by him, but he undertook the trial for the offence under Section 304-A, I.P.C. and convicted the accused (the other opposite party) for the said offence. On perusal of the report and the L.C.R., this Court being prima facie satisfied about the assertions of the Sessions Judge regarding the misconduct of the S.D.J.M. and also about illegality in the trial, issued notice to both the opposite parties. So far as it relates to the Judicial Officer, he was asked to show cause for the alleged misconduct and illegality, whereas the accused-opposite party was asked to show cause as against the motion for re-trial in view of the provision in Section 300(4) of the Code of Criminal Procedure, 1973 (in short 'the Code').
3. Detailed narration of the facts involved in G.R. Case No. 332 of 2008 is not necessary to deal and decide the issue which is before this Court. Suffice it for the purpose of record to indicate that on 09.06.2008 on receipt of the F.I.R., a case under Sections 294, 323 and 341, I.P.C. was registered in the Nabarangpur P.S. On the basis of the report of the Investigating Officer received in the Court of the S.D.J.M. on 12.06.2008, it was indicated in order No. 2 dated 12.06.2008 that on the death of the injured the case turned to one under Section 294/302, I.P.C. The accused was remanded to the Jail custody w.e.f. 12.06.2008 with periodical remand orders. On receipt of the final form on 23.10.2008, opposite party No. 1, as the learned S.D.J.M. took cognizance of the offence under Section 304 Part (I) I.P.C. notwithstanding simpliciter mentioning of Section 304, I.P.C. in the charge-sheet. That indicates that on 23.10.2008, on perusal of record and appreciation of evidence referred to in the Case Diary, learned S.D.J.M. was satisfied about existence of prima facie case for the offence under Section 304 Part (I), I.P.C. On 30.10.2008 by a later order, learned S.D.J.M. allowed the accused to go on bail and therein recorded that
xxx since the offence committed under Section 304 Part (I) by the accused is bailable in nature let the accused be released on bail for a sum of Rs. 20,000/- (Twenty thousand) with one surety for the like amount. Put up later if bail bond is filed.
4. It is pertinent to mention that thereafter the accused did not furnish bail bond till conclusion of the trial. On 24.12.2008, police papers were supplied to the accused and learned S.D.J.M. ordered to put up the record for further orders on 25.11.2008. Normally, in such a case, i.e. when the offence is triable exclusively by the Court of Session, on supply of police papers under Section 207, Cr.P.C, learned S.D.J.M. should have passed the order of commitment under Section 209, Cr.P.C. Be that as it may, on 25.11.2008, the order-sheet indicates that the case was transferred to the file of the Judicial Magistrate First Class, Nabarangpur for disposal according to law and there was interpolation in the second line to add that particulars of the offence committed under Section 300(A) of the I.P.C. was read over and explained to the accused and the latter pleaded not guilty and claimed for trial. There again the question remains, as to if the case was transferred to the file of the J.M.F.C. functioning in the same stations, there was no necessity for the S.D.J.M. to pass the interpolated order by explaining accusation under Section 304(A), I.P.C. Thereafter, the case was put up before the J.M.F.C. on the selfsame day i.e. on 25.11.2008 and adjourned to 08.12.2008 and 22.12.2008. On two latter dates, the J.M.F.C. being absent, learned S.D.J.M. signed the order as in-charge of that Court and passed order to issue summons to the charge-sheeted witnesses, but the column No. 4 of the order-sheet being blank relating to the compliance of that order, it goes without saying that summons were not issued to the witnesses. On 05.01.2009, the other adjourned date, opposite party No. 1 withdrew the case to his file by stating that
The case record put before me as the P.O. is on maternity leave. Accused produced in custody. Since it an U.T.P. Case. The case is withdrawn to my file as per provision of Section 410(2), Cr.P.C.
Issue summons to C.S.W. fixing 20.1.09/21.1.09 for. Accused remanded till 17.1.09/20.1.09/21.1.09.
Thereafter, trial was taken up on different dates and ultimately opposite party No. 2 was convicted and sentenced to imprisonment for two years and to pay a fine of Rs. 10,000/- for the offence under Section 304(A), I.P.C.
5. On perusal of the aforesaid record, learned Sessions Judge reported to the High Court that he found that
During trial, which he could not have held for lack of jurisdiction, he recorded statements of sixteen witnesses for the prosecution but not the autopsy doctor. The statements of the witnesses show that the accused has given a tangia blow on the abdomen of the deceased consequent upon which he died. The case is exclusively triable by the Court of Sessions and should have been committed. At no point neither the S.D.J.M. nor the counsels nor the staff could distinguish between Section 304 Part-I and Section 304-A of the I.P.C. The conduct appears shoddy, pretentious, clandestine and mischievous or the conduct of the S.D.J.M. and his staff appears to be that of a dullard or simpleton. The approach is shallow, superficial and not penetrating. The mind of Shri Sahoo appears as one not able to discern and distinguish simple legal matters. I have enclosed copies of relevant orders/papers for perusal.
6. The opposite party No. 1 (now under suspension) has filed his show cause, inter alia, stating that he took up the case for trial as per the direction of the Chief Judicial Magistrate, Nabarangpur due to long absence of the J.M.F.C. Apart from that, the sum total of the plea advanced by him is a case of unintentional mistake and to forgive him for the same.
7. In course of submission, Mr. Pradhan, learned Counsel for opposite party No. 1 concedes that in the inspection report of the C.J.M. there was no direction for withdrawal of the case by the S.D.J.M. from the file the J.M.F.C. so as to pass the order on 05.01.2009. On the other hand, the order dated 05.01.2009 does not indicate about withdrawal of the case because of the direction of the superior authority. So many factors are there in L.C.R. which do not prompt this Court to readily infer about an act of negligence or a mistake act taken due to ignorance. Be that as it may, since the High Court on administrative side has already taken administrative action, therefore, this Court on the basis of the scanty materials available on record is not inclined to pass any adverse order against the officer. Such factors should be properly enquired into.
7. Coming to the question of retrial of the case, Mr. G.K. Mishra, learned Counsel appearing for the accused-opposite party No. 2 brings to the notice of this Court two citations for consideration. The first one is the case of Narasingha Rout and Ors. v. Rameswar Mohapatra : AIR 1958 Orissa 141 and the other one is Ramekbal Tiwary v. Madan Mohan Tiwary and Anr. : 1967 STP (LE) 3965 SC : AIR 1967 SC 1156. In both the cases the scope and ambit of Section 403(1) and (4) of the Code of Criminal Procedure, 1898 was considered in cases where cognizance was taken of the offence triable by the Magistrates, but the allegations were making out case for some other offences again triable by the Magistrates or by the Court of Session. The self-same statutory provision is presently in Section 300(1) and (4) of the Code. In each of the decisions, the facts and circumstances are distinguishable, inasmuch as, in the present case cognizance of the offence under Section 304, I.P.C. was taken by the learned S.D.J.M. and according to the First schedule of the Code, such offence is exclusively triable by the Court of Session and therefore, undertaking the trial on explaining the accusation under Section 304-A, I.P.C. by learned S.D.J.M. he himself has impliedly revised his own order of cognizance and that is not permissible under law. Normally, the materials on the lower Court records prima facie satisfy about existence of a case for the offence which is exclusively triable by the Court of Session and since the cognizance has already been taken of that offence, learned S.D.J.M. has no jurisdiction to undertake the trial. That being the legal provision in Sub-section (4) of Section 300, therefore, the aforesaid two decisions do not help the accused in this particular case. Under such circumstance, the accused is to be retired for the offence under Section 304, I.P.C. by following the due process of law. At the same time, this Court observes that the trial be taken up expeditiously and the period of detention be duly considered if at all the accused would be found guilty and liable for punishment.
8. The L.C.R. be immediately returned to the Court below to follow the procedure of commitment within 15 days from the date of receipt of the L.C.R. and the trial Court may take up the trial expeditiously and dispose of the same as far as practicable within a period of three months from the date of commitment.
9. With the aforesaid observations and orders, the Suo Motu Criminal Revision is disposed of.