APURBA SUNA Vs. D KOSALA

JUDGEMENT

(1.) THIS is a reference under Section 438 of the Code of Criminal Procedure made by the learned Sessions Judge, Koraput at Jeypore in the following circumstances : Apurba Suna laid a complaint in the court of the Sub -Divisional Magistrate, Malkangiri. On 21 -11 -69 the complainant was examined under Section 200, Criminal Procedure Code and the Sub -Divisional Magistrate directed an inquiry under Section 202 of the Code. One of the persons complained against was a police constable. From the order sheet of the complaint case No. I. -C.C. 21/69 registered under Sections 354/323, I.P.C. it appears that the enquiry report from the Tahsildar and Magistrate, First Class, Malkangiri had not been received until 24 -2 -70. The case was thereafter adjourned to 20 -3 -70. In the meantime on 2 -3 -70, the Court Sub -Inspector of Malkangiri made a petition for withdrawal of the case under Section 494, Criminal Procedure Code On that day the learned Sub -Divisional Magistrate passed the following order :

(2.) THE learned Sessions Judge has indicated in his order of reference that there is no memorandum in the record filed by the complainant accepting the withdrawal. He has been of the view that the private complaint could not be withdrawn by the Public Prosecutor. The order of reference has referred to a number of cases dealing with the role of the Public Prosecutor including one of this Court in the case of In re Radhu Gantayat (1965) 31 Cut LT 592. Section 494, Criminal Procedure Code provides : -

(3.) IN such circumstances, I accept the reference, quash the order of the learned Magistrate dated 10 -3 -70 and direct that the enquiry under Section 202, Criminal Procedure Code be conducted with utmost expedition and the case be proceeded with in accordance with law. Since more than a year has been lost on account of undue interference of the Public Prosecutor in this case, due care should be taken to conclude the proceeding early.