JUDGMENT :

S.K. Sahoo, J.

None appears for the petitioners. Notice which was issued to opp. party no.1-Kumari Babita Naik by registered post with A.D. returned undelivered with an endorsement “dead since long”.

Heard Mr. Chitta Ranjan Swain, learned Additional Standing Counsel for the State.

In this application under section 482 of Cr.P.C., the petitioners have challenged the impugned order dated 23.11.2004 passed by the learned S.D.J.M., Bhanjanagar in I.C.C. Case No. 07 of 2003 in rejecting the petition filed by the petitioners to recall the order dated 07.02.2009 passed by the said Court in taking cognizance of the offences under sections 323/294/34 of the Indian Penal Code read with Section 3(1)(x) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’) and issuance of process against them.

2. The prosecution case, as per the complaint petition is that the opp. party no.1-complainant was suffering from pain in her left eye since last three years and in order to get rid of such pain, believing upon Lord Shiva, on 20.01.2003 early morning after taking her bath, she laid herself down on the stairs in the temple of Lord Shiva. When the priest of the said temple came to offer Puja and called her, she did not respond strongly believing upon the Almighty. It is the further case of the opp. party no.1-complainant that after sometime, the petitioners along with others came there and abused the complainant in filthy language and when the complainant did not stand up, all the petitioners dragged her from the stairs and assaulted her. The complainant raised hullah for which her parents along with others came there and seeing them, the petitioners left the spot.

3. On the basis of such complaint petition filed by the complainant, the initial statement of the complainant was recorded under section 200 of Cr.P.C. and inquiry contemplated under section 202 of Cr.P.C. was conducted, during course of which statements of some witnesses were recorded and after considering the materials available on record, the learned S.D.J.M., Bhanjanagar was of the opinion that there were sufficient materials to make out a prima facie case under sections 294, 323, 34 of the Indian Penal Code read with section 3(1)(x) of the 1989 Act and accordingly took cognizance of such offences and issued process against the petitioners.

4. On 15.11.2004 a petition was filed by the petitioners to recall the order of taking cognizance with respect to the offence under section 3(1)(x) of the 1989 Act on the ground that there was no material to attract the ingredients of such offence and all the witnesses had not been examined during inquiry as contemplated in a complaint case proceeding triable by a Court of Session and no documents had been produced to show that the complainant is a member of Scheduled Caste or Scheduled Tribe. The opp. party no.1-complainant filed her objection to such petition filed by the petitioners. After perusing the recall petition as well as the objection filed by the complainant and other materials available on record, the learned Magistrate was of the view that the opp. party no.1-complainant stated that she is ‘Pana’ by caste and the complaint petition also indicates that the complainant is ‘Pana’ by caste residing at Harijan Sahi, Gayagauda. The learned Magistrate was further of the view that at that stage, it was not necessary for a detailed inquiry regarding the caste aspect and the complaint petition as well as the statement of the complainant is sufficient for such purpose. The learned Magistrate was of the view that all the witnesses are not required to be examined by the complainant in such case since it is not a sessions case and complainant cannot be compelled to examine all the witnesses named in the complaint petition against her will and desire even in a sessions case. Accordingly, the learned S.D.J.M. rejected the petition filed by the petitioners to recall the order of taking cognizance.