NIRA @ NIRANJAN MOHANTY Vs. NARAYAN PADHAN AND ORS.

JUDGEMENT

(1.) THIS Criminal Misc. Case is directed against the order passed by the learned Sessions Judge, refusing to interfere with an order of dismissal of a complaint petition under Section 203, Code of Criminal Procedure passed by the learned Sub -Divisional Judicial Magistrate, Sambalpur.

(2.) A few facts may be stated. The Petitioner filed a complaint petition against the opposite parties alleging that in the night of 11 -3 -1988 they formed an unlawful assembly and being armed with deadly weapons attacked his house, abused him in filthy language, broke open the door, pelted stones and assaulted him, as a result of which, he was injured. He was examined on 12 -4 -1988 and the learned Magistrate passed the following order:

(3.) IT is elementary that if it is not possible for the Magistrate to take cognizance of offences on the existing material, he can direct an enquiry under Section 202, Code of Criminal Procedure. If the materials existing are sufficient, there is no impediment for the Magistrate to take cognizance of the offences and issue process against the accused without holding any such enquiry. In this case, the learned Magistrate put the cart before the horse. First he took cognizance of the offences against the opposite parties and then directed an enquiry under Section 202. Such a procedure is unknown to the Code of Criminal Procedure. If he had any doubt on 12.4.1988 about existence of a prima facie case, he ought not to have taken cognizance of the offences and at that stage it was within his jurisdiction to direct an enquiry under Section 202. Taking Cognizance of the offences and directing an enquiry simultaneously are, to say the least, irregular and illegal. Unfortunately the learned Sessions Judge did not correct the mistake in the criminal revision presented before him. If the impugned orders are allowed to stand, there shall be miscarriage of justice.