KANAKAISTA DWIVEDI Vs. M M PATNAIK

JUDGEMENT

(1.) The order of the learned Additional Sessions Judge, Jaipur selling aside the order of the learned Sub-Divisional Judicial Magistrate. Jaipur (for short Tthe S.D.J.M.T) taking cognizance of the offences under sections 323 and 427, I.P.C. 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 I.C.C. Case No.7 of 1987 in the court of the S.DJ.M., Jajpur on 12/1/1987 alleging that on 8/1/1987 at about 12 noon the accused persons Ito 3 (opposite parties 1 to 3 herein) working respectively as Executives 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 Douhabil in the company of five other unknown persons and uprooted her vegetable plants with a view to dig a 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 on 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 had lodged an F.I.R. 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 S.D.J.M. called for a report from the police which having disclosed that the G.R. Case No. 23 of 1967 registered on the basis of the F.I.R. 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 Tahesil Office and declaration No.1 0541-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 those dates are extracted below: 6/11/1987 - Perused the complaint petition, initial deposition of the complainant, statements of P.Ws. 1 and 2 recorded u/s. 202, Cr. P.C. and other relevant documents. I find prima-facie material against the accused persons No. Ito 3 for proceeding u/s.323/427, I.P.C. Hence cognizance u/s. 323/427, IPC is taken against the accused persons namely Madan Mohan Patnaik, Asutosh Mishra and Ananta Charan Satepathy. 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. S.D.J.M., Jajpur 7/11/1987, Advocates for the complainant is present. Requisites filed. Issue summons fixing 3/12/1987 for appearance.

(3.) Being dissatisfied by the aforesaid orders, the accused persons filed revision in the court of the Sessions Judge, Cuttack which, on transfer, come 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 S.D.J.M. had not considered certain documents which he had himself called for from different quarters and had not given any reason for proceeding against the present opposite parties. It was also found by him that there was absolutely no 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 Dot sustainable in low and accordingly, he set aside the orders and remitted the matter to the S.D.J.M. for passing appropriate order after further inquiry. Being aggrieved by such order, the present revision has been filed.