( 1 ) LEAVE granted.

( 2 ) THIS appeal under Article 136 of the Constitution of India has been directed against an order dated 28/07/1994 passed by the High Court of Orissa in Criminal Revision No. 271 of 1993 quashing the order dated 15/04/1993 passed by the Sub Divisional Judicial Magistrate, Udala taking cognizance of an offence against the respondent herein for an alleged offence under Section 302 of the Indian Penal Code.

( 3 ) ACCORDING to the prosecution on 8/12/1992 at about 4. 00 A. M. deceased Santosh Kumar Nayak who was the brother-in-law of the respondent brother of his wife was admitted in the Sub-Divisional Hospital Udala with 50 per cent burn injuries on his body Dr. P. K. Sahu, Surgery Specialist of the said hospital attended the victim and found his condition to be serious. Dr. Sahu, therefore, at the first instance recorded his dying declaration on the bed-head ticket in which the victim is said to have mentioned that his brother-in-law Bansidhar Singh Respondent herein) had set fire by pouring kerosene oil on him. The patient, thereafter was referred to the headquarter hospital at Barioama and at the same time the doctor sent intimation to the Officer-in-charge of Udala Police Station in Writing. The victim died in the hospital same day.

( 4 ) SHRI S. L. Behera, Officer-in-charge, Udala Police Station contained a written FIR from the son of the respondent on the basis of which case No. 102 of 1992 was registered under Section 309, IPC against the victim himself for attempting to commit suicide. But after the victim succumbed to burn injuries the investigating officer submitted the final report declaring the case having been abated.

( 5 ) ON perusal of the material available, the dying declaration and the statement of one Badal Mukhi, recorded under Section 161, Criminal Procedure Code, the learned Magistrate was satisfied that there existed prima facie case under Section 302, IPC against the respondent and taking cognizance of an offence under Section 302, directed on 15/04/1993 for issuance of summons and non-bailable warrants against him for his appearance on 30/04/1993. The respondent challenged the aforementioned order of the learned Magistrate in the High Court of Orissa praying that the said order of the learned Magistrate be quashed on the ground that the condition of the deceased was so serious that he could not have made any dying declaration which is the only basis for taking cognizance against the respondent. The High Court observed that the material on record did not indicate that the respondent had poured kerosene oil on the deceased and set fire and that there was also absence of allegation in the first information report about the respondent causing death of the deceased in the manner stated in the dying declaration. The High Court also observed that the father of the deceased, his father-in-law, wife and daughter of the respondent had all given statements that the deceased was mentally unsound since a few months prior to the occurrence and that he was treated for the unsoundness of the mind and, thus there was ample material that the deceased was mentally unsound on the date of occurrence. The High Court further observed that the statement of Badal Mukhi, an attendant of the Sub-Divisional Hospital, recorded under Section 161, Cr. P. C. did not indicate that the deceased had given the dying declaration in his presence. On these findings the High Court took the view that the doctor was the only witness before whom the deceased is said to have made a dying declaration and, therefore, it was hazardous to direct prosecution against the respondent on the basis of this material alone without any prima facie corroborating material.

( 6 ) AFTER hearing the learned counsel for the parties and on perusal of the order passed by the learned Magistrate taking cognizance of offence against the respondent as well as the impugned order of the High Court we are of the view that the High Court misdirected itse