DINABANDHU DAS Vs. BATAKRUSHNA DAS

JUDGEMENT

(1.) Petitioners assail correctness of the order passed by learned Sub-divisional Judicial Magistrate, Kendrapara (in short 'S.D.J..M.') in I.C.C.No.75 of 1987 in taking cognizance u/S.395 of the Indian Penal Code, 1860 (in short 'I.P.C.') against them.

(2.) Factual antecedents in short are that on 13-2-1987 one Srikanta Kumar Das, son of present opposite party No.1, submitted a written report in Nikirai Police Out-Post to the effect that at about 9 a.m. that day while his father was returning after taking bath, he was assaulted by some of the present petitioners and when his mother ran to the place of occurrence she was also assaulted. Allegations of brick batting and pelting of stones during the course of incident were also made. Alleging inaction by the police, he filed a complaint petition on 13-3-1987 in the court of the S.D.J.M., Kendrapara, which was registered as I.C.C. No.75/87. An inquiry was undertaken u/S. 202, Code of Criminal Procedure, 1973 (in short 'the Code'). Several witnesses were examined on 3-3-1987 and 22-4-1987. During pendency of the complaint case charge -sheet was submitted on 27-7-1987 u/Ss. 447, 341, 323, 294/34, IPC in G.R. Case No.120 of 1987, and cognizance was taken on the said date against petitioner Nos. 4, 5, 6, 8, 9, 12 and 17. On 9-9-1987 cognizance was taken u/S. 395, IPC against present petitioners and process was issued to them. The order taking cognizance is subject-matter of assail in this revision application.

(3.) Petitioners assail correctness of the order on two grounds, viz. (i) the learned S.D.J.M. should have stayed inquiry or trial on the basis of the complaint petition in terms of S. 210(1) of the Code and he having not done so the whole proceeding is vitiated; and (ii) all the witnesses named in the complaint petition having not been examined, cognizance as taken is illegal. The learned counsel for opposite party No. 1, however, submits that the provisions of S. 210(1) have no application to facts of the case and also examination of witnesses named in the complaint petition is not a statutory mandate.