KANAKALATA DWIVEDI Vs. M.M. PATNAIK

JUDGEMENT

(1.) The order of the learned Additional Sessions Judge, Jajpur setting aside the order of the learned Sub -Divisional Judicial Magistrate. Jajpur (for short 'the S. D. J. M.') taking cognizance of the offences Under Sections 323 and 427, IPC, and directing issue of process against the present opposite parties is under challenge in this revision.

(2.) THE present petitioner, as complainant, filed a complaint petition in ICC Case No. 7 of 1987 in the Court of the S. D. J. M., Jajpur on 12 -1 -1987 alleging that on 8 -1 -1987 at about 12 noon the accused persons 1 to 3 (opp. parties 1 to 3 herein) working respectively as Executive Engineer, Sub -Divisional Officer and Overseer in the Irrigation Division, Jajpur came upon her land in plot No. 37 under Khata No. 385 of mouza -Dobhaoil in the company of five other unknown persons and uprooted her vegetable, plants with a view to dig drain and when she raised protest and stood on the land with a view to prevent them from digging earth, the accused No. 1 gave her a push and the other two accused persons dragged her out of the land. On receipt of such complaint the learned S. D. J. M. recorded the initial statement of the complainant Under Section 200 of the Code of Criminal Procedure, 1973 (for short, 'the Code') and decided to hold an inquiry Under Section 202. inasmuch as the accused persons were Government servants. Before commencement of the inquiry' the complainant filed a petition informing the Court that prior to her filing the complaint, she bad lodged an FIR at Mangalpur Police Station and prayed to call for a report from the said police station and also to direct the police for the arrest of the opposite parties. Thereupon, the learned SDJM called for a report from the police which having disclosed that the G. R. Case No. 23 of 1987 registered on the basis of the FIR lodged by the complainant had ended in submission of final report, he called for the record of that case and found that the final report had been accepted by him. During the inquiry Under Section 202 which followed thereafter, two witnesses were examined and sketch map of the plot was called for from the Tahasil Office and declaration No. 10541 -R dated 12 -2 -1965 published in Orissa Gazette No. 315 dated 11 -3 -1965 was called for from the office of the Irrigation Division and cognizance of the offence was taken on 6 -11 -1987 and processes were directed to be issued on the next day i. e. 7 -11 -1987. Orders of these dates are extracted below : '6 -11 -1987 -Perused the complaint 'petition, initial deposition of the complainant, statements of PWs I and 2 recorded Under Section 202, Cr PC and other relevant documents. I find prima facie material against the accused persons No. 1 to 3. for proceeding Under Section 323/427, IPC. Hence cognisance Under Section 323/427, IPC is taken against the accused persons, namely, Madan Mohan Patnaik, Asutosh Mishra and Ananta Charan Satpathy. Complainant is directed to file requisites and furnish the names of the fathers of the accused persons in course of the day for issue of process against the accused persons. Call on 7 -11 -1987 for further order. SDJM, Jajpur 7 -11 -1987 Advocate for the complainant is present. Requisites filed. Issue summons fixing 3 -12 -1987 for appearance. SDJM, Jajpur

(3.) BEING dissatisfied by the aforesaid orders, the accused persons filed revision in the Court of the Sessions Judge,Cuttack which, on transfer, came to be disposed of by the learned Additional Sessions Judge, Jajpur. It was found by the learned Additional Sessions Judge that while taking cognizance of the offence and directing issue of process, the learned SDJM had not considered certain documents which he had himself called for from different quarters and has not given any reason for proceeding against the present opposite parties. It was also found by him then there was absolutely no1 consideration as to whether sanction Under Section 197 of the Code was necessary for proceeding against the accused persons who might have gone to the spot for supervising the work of digging earth in discharge of their official duties. According to the learned Additional Sessions Judge, therefore, the impugned orders before him were not sustainabble in law and accordingly, he set aside the . orders and remitted the matter to the SDJM for passing appropriate order after further inquiry. Being aggrieved by such order, the present revision has been filed.