DHIREN SARKAR Vs. BAREN MALICK

JUDGEMENT

(1.) The hearing stems from an application under sections 397/401 read over section 482 Cr. PC filed by the petitioner praying for setting aside the order dated 31.12.96 passed by learned Chief Judicial Magistrate, Howrah in Complaint Case No. C.368 of 1993.

(2.) The circumstances leading to the above application are that the petitioner filed a complaint being registered as Complaint Case No. C.368/93 before the Court of learned Chief Judicial Magistrate, Howrah on 01.04.93 inter alia disclosing offences under sections 323/324/342/ 506/504 IPC committed by O.P., Nos. 1 & 2. After taking cognizance of the offence and examining the petitioner, the learned Magistrate directed S.P., Howrah to direct one Additional S.P., Howrah to hold an enquiry and submit report by 27.05.93. In Criminal Revision No. 829 of 1993 preferred against the said order by the petitioner, this Court directed the learned Magistrate to proceed in accordance with the law subsequent to the stage of examination of the complainant after giving him an opportunity to examine his witnesses, if any. The learned Magistrate after examination of the witnesses by order dated 10.09.93 again requested S.P., Howrah to direct a competent officer to hold an enquiry and to submit a report by 03.12.93. As S.P., Howrah failed to submit any report, the petitioner filed an application on 05.08.95 praying for issuing process against the accused persons which was turned down on 02.09.95 holding that he had no jurisdiction to modify or vary the order passed by the Court earlier. It was reported by S.P. that it refers to Howrah P,S. 'Case No.58 dated 8.3.93 under sections 147/148/448/341/337/338/325/357/427 IPC instituted by the police against the complainant and seventeen others where charge sheet had been submitted. As the said report did not disclose any investigation in regard to the allegations made in the complaint, the learned Magistrate himself took up inquiry on 31.12.96 and after examination of the materials on record held that though a prima facie case under sections 323/504 IPC has been made out, but he could not take cognizance of the offence in view of the provision of section 197 Cr. PC as one of the accused persons is a public servant who is removable from his office by the Government and as such directed the petitioner to obtain sanction for launching prosecution against the accused O.P. No.l from appropriate authority prior to taking cognizance of the offence, being totally oblivious of the fact that by order dated 01.04.93 cognizance had already been taken and that the appointing authority of the D.S.P. is Director General of Police and as such no sanction is required for prosecution against such officer.

(3.) Being aggrieved by and dissatisfied with the said order, the petitioner has come up with the present application.