DIGAM MAHATO Vs. BIRAJ MAHATO

JUDGEMENT

(1.) THIS Rule was issued on the District Magistrate of Purulia and also on the opposite parties to show cause why the order complained of should not be set aside. This is an application purported to be under section 115 of the Code of Civil Procedure and article 227 of the Constitution of India, for revision of an order by the District judge of Purulia making a complaint, in accordance with the provision of section 195 (1) (a) of the Criminal Procedure Code, against the five petitioners under section 186 of the indian Penal Code. The facts material for the purpose of the present Rule way shortly be stated as follows.

(2.) AN application purporting to be under section 476 of the Criminal Procedure Code was made in the first instance by the present opposite parties before the Subordinate Judge, Purulia for prosecution of the present petitioners under sections 183, 186. . . . . . of the indian Penal Code, on the allegations that resistance had been offered by the present petitioners on 30. 5. 58 when a process server of the Purulia civil court accompanied by a picador commissioner appointed by the Court, went to deliver possession of certain lands to the present opposite parties in execution of a final decree for partition passed in Title Suit No. 63/47 of 1952-53 of the court of the Subordinate Judge, purulia. The process-server and the pleader commissioner submitted reports in respect of the said resistance. The Subordinate Judge threw out the petition on the ground that the application under section 476 of the Criminal Procedure Code was misconceived and that resistance to delivery of possession having been admittedly affered by persons who were strangers to the suit in question, an application should instead have been filed under the provisions of Order 21, rule 97 of the Code of Civil Procedure for getting appropriate remedy in this respect. Thereafter the present opposite parties applied before the District Judge of Purulia to make a complaint under section 186 of the Indian Penal Code against the present petitioners in accordance with the provisions of section 195 (1) (a) of the Criminal Procedure Code, the District Judge after hearing the parties proceeded to make a complaint under the provisions of section 195 (1) (a) of the Criminal Procedure Code, for prosecution of the present five petitioners under section 186 I. P. C. The complaint was actually lodged by the judge-in-charge of Nazarat at the direction of the District Judge.

(3.) AS regards the competence of the district Judge to make a complaint in like circumstances, there can hardly be any doubt. The process-server as well as the Subordinate Judge both were subordinate to the District Judge within the meaning of section 195 (1) (a) of the criminal Procedure Code.