MUKUNDA BARAL Vs. GODAVARIS MISRA

JUDGEMENT

(1.) TWO complaint petitions were filed on 22.8.1978 in the court of the learned Sub -Divisional Judicial Magistrate at Puri being I. C. C. 327 of 1978 and I. C. C. 328 of 1978. In the first case the complainant was Mukunda Baral, who described himself as a sub -tenant of a premises known as 'Roma Villa' located within the Town of Puri while the second case was by one Harihar Singha said to be a tenant of the premises. In the first case, the accused persons were three in number namely, the Deputy Superintendent of Police, the Officer -in -charge of the Town Police Station of Puri and an Assistant Sub -Inspector of that Police Station. In the other case, the accused persons were five, i. e. besides the three above -named persons who are common, another Sub -Inspector and one Manjulata Mohanty were also added as accused persons. The prosecution allegations in brief were the following: The owner of Roma Villa is a person of Calcutta. Harihar Singh had been occupying the premises for about 14 years as a tenant. On 18th of August, 1978, around 5 P. M., the Police Officers arid the lady accused trespassed into the premises and threatened Harihar with dire consequences unless he and his children walked out of the premises. Several other police people were standing armed outside and the Deputy Superintendent of Police threatened saying that he would direct lathi charge if there was no compliance with his orders. Apprehensive of evil consequences, Harihar and members of his family came out of the house. Accused Manjulata threw out Harihar's belongings and under the orders of the Deputy Superintendent of Police, the articles thrown out were put into the police vehicle by the constables. When Harihar resisted, he was physically assaulted. The house was kept under lock and the key was made over to the lady accused. On the following day, Harihar was called to the Police Station and detained for almost the whole day. On the following Monday, he had also been sent for and detained at the police station for some time. He, therefore, filed the petition of complaint on 22.8.1978 alleging commission of offences punishable under Sections 341, 379, 426 and 448, Indian Penal Code. Harihar's tenant filed a complaint on similar allegations on the same day. The learned Sub -Divisional Judicial Magistrate directed an enquiry under Section 202 of the Code of Criminal Procedure. At the instance of the complaint, he called for the case diary in Town P. S. Case No. 251 of 1978 under Section 307, Indian Penal Code and the connected G. R. case. In Complaint Case No. 327 of 1978, 4 witnesses were examined in the enquiry while in the other case, 3 witnesses were examined. In each of the cases, the learned Sub -Divisional Judicial Magistrate directed dismissal of the complaint. These two revision applications have, therefore, been filed by the complainants of the respective cases.

(2.) MR . Patnaik in support of the revision petitions has contended that on the basis of the evidence led in support of the allegations, prima facie case had been made out against the accused person. The learned Sub -Divisional Judicial Magistrate appears to have utilised facts not on record and has come to hold without any justification that a prima facie case had not been made out. Mr. Patnaik's further contention is that there was evidence to show that the accused Deputy Superintendent of Police had come to the spot in mufti which was indicative of the position that he did not come on duty. According to Mr. Patnaik, it was no part of the duty of the Police to be at the premises even if there was force in the stand taken by the opposite parties that there had been an earlier order under Section 144 of the Code of Criminal Procedure which had been made absolute against the complainant. Undoubtedly, by lapse of time, the order under Section 144 of the Code had spent its force by the date of the occurrence. Even if there was allegation of violation of the order of restraint and an offence under Section 188 of the Penal Code had been committed, the police had no justification to enter into the premises and drive away the occupant and hand over possession of the premises to the lady accused. The entire role of the police officers is motivated and malicious and cannot be said to be in due discharge of duty. Conceding, Mr. Patnaik contended, that the Deputy Superintendent of police was entitled to the protection under Section 197 of the Code of Criminal Procedure, the other accused persons were not entitled to that protection and so far as they were concerned, the case had to be considered from a different angle.

(3.) MR . Patnaik places reliance on two decisions of the Supreme Court in this connection. The first one is the case of Nagraj v. State of Mysore, AIR 1964 SC 269 : (1964 (1) Cri LJ 161), where the Court pointed out: -