HARERAM SATPATHY Vs. TIKARAM AGARWALA

JUDGEMENT

(1.) This appeal by Special Leave which is directed against the Judgment and Order dated August, 25, 1976 of the High Court of Orissa in Criminal Revisions Nos. 344 and 365 of 1975 setting aside the order dated November 20, 1975 of the Sub- Divisional Magistrate, Balangir, directing issue of process against respondents 1 to 3, arises in the following circumstances:-

(2.) On Nov. 27, 1974 Parsuram Satpathy, brother of Hareram Satpathy, the appellant herein, who was a Journalist by profession and a staunch supporter of Bhartiya Lok Dal, sought the help and protection of the Officer-in-charge of the Police Station, Balangir, on the ground that he had learnt from B. Kramanda Bohidar, a member of the Congress Party, that there was a conspiracy to murder him. On the evening of November 29, 1974, the appellant made a report to the Officer-in-charge of the aforesaid Police Station, alleging therein that Premlal Suna, Parsanna Pal, Guna Ghasi, Jagyna Puruseth, Bighna Raj Misra, Jayanarayan Spirpathy, Bikram Bohidar and Tikaram Agarwala, members of Yuva Congress Party and political adversaries of his brother, Parsuram, had been openly declaring since the last 3 or 4 days that they would take the life of Parsuram and had been moving around his house in the Congress Jeep looking out for an opportunity to kill him (i.e. Parsuram). The report went on to say that at or about 7 p.m. of that day he saw Premlal Suna, Guna Ghasi, Dhobai Charanpodh, Jagyana Puruseth, Tikaram Agarwala, Artatran Singh Deo, Prasanna Kumar Pal and some others coming in a Jeep from the side of Patita Pavan Academy and killing his brother by dashing the jeep against the cycle on which he was going on Dhobapara Road. On receipt of this report the police took up investigation of the case and on completion thereof submitted a charge-sheet against six persons viz. Premlal Suna, Jakgnya Puruseth, Gunaidhi Banchhor alias Ghasi, Dhobai Podh, Prafulla Bhoi, and Sugyan Sandh on the allegation that they intentionally caused the death of Parsuram Satpathy on Nov. 29, 1974 in the manner stated above. So far as the present respondents were concerned the police submitted a final report saying that from the investigation carried on by it no offence appeared to have been made out against them. As the police did not proceed against all the 13 persons mentioned in the aforesaid report made by him, the appellant filed a complaint in the Court of the Sub Divisional Magistrate, Balangir, reiterating the allegations made by him against the aforesaid 13 persons including the respondents herein who did not figure as accused in the aforesaid police charg-sheet. After going through the statements made under S. 161 of the Cr. P. C. by the appellant and Bhibudananda Udgata, Harudanana Nanda and Sankar Tripathy and finding a prima facie case under S. 302 of the Indian Penal Code made out against the respondents, the Magistrate directed the issue of non-bailable warrants against them. Aggrieved by this order the respondents took the matter in revision to the High Court. A single judge of the High Court after detailed and meticulous scrutiny of the aforesaid statements made by the appellant and others set aside the order of the Sub-Divisional Magistrate issuing process against the respondents, holding that there was a (no ) material on record to make out a prima facie case against the respondents and that the order of the Magistrate issuing process against the respondents was without jurisdiction. Dissatisfied with this order, the appellant has, as already stated, come up in appeal to this Court.

(3.) Two main questions arise for determination in this case namely:-