NIRANJAN PARIDA Vs. PARESH CHANDRA PANDA

JUDGEMENT

(1.) This application under section 482 Cr. P.C., is directed against taking cognizance under sections 323, 330, 324/34 I.P.C. against the petitioners who were the O.I.C. and S.I. of Police of Jharpokharia P.S. in the district of Mayurbhanj on the allegation of their having extorted confession from the complainant by use of force and causing grievous hurt to him by dangerous means and weapons. The complaint being presented on 8.10.1985, the complainant was examined on solemn affirmation on 10.10.1985 on which date the learned Magistrate recorded the matter need an inquiry tinder section 202 Cr. P.C. and the complainant was directed to bring his, witnesses on 14.10.1985. Thereafter the matter proceeded in a leisurely manner with successive adjournments of which on some dates the complainant was present with his witnesses and on some dates he was absent. The fact remained that without holding inquiry under section 202 Cr. P.C., on 19.3.1990 the learned Magistrate recorded the order as follows Perused the S.A. of the complainant along with medical certificate. There is prima facie case under sections 323/330/ 324/34 I.P.C. Hence Cog of offences under sections 323/ 330/ 324/ 34 I.P.C. is taken against both the accused persons. Issue summons to the accused persons fixing. 19.4.19,90 for appearance Complete is to file requisites within three days. It is this Order which is impugned here.

(2.) Even though the learned counsel for the petitioners submits that cognizance was taken on 19.3.1990 and so far as cognizance of the offence under section 330 I.P.C. is concerned it was beyond the time prescribed, yet as a strict question of law it has to be held that cognizance was taken the very day when the statement of the complainant was recorded, i.e. 10.10.1985. The recording of the order as quoted above on 19.3.1990 of having taking cognizance that day was a mistake of the learned Magistrate since he had already become judicially aware of the prances on 10.10.1985. That being the position, the question arising for consideration in this case is two-fold, i.e. whether without 202 Cr. P.C. inquiry being held it Twas open to the learned Magistrate to have issued process to the petitioners for their appearance and secondly whether cognizance could be taken bereft of previous sanction under section 197 Cr. P.C. of the appropriate authority.

(3.) So far as the first question is concerned, the direction to issue process against the petitioners was ipso facto bad. On 10.10.1985 the learned Magistrate himself recorded the order of the complainant being present and he having been examined on solemn affirmation and after perusing the same he felt the necessity of enquiry under section 202 Cr. P.C. Hence, without anything further happening in between he could not have passed order on 19.3.1990 again saying that on perusal of the statement of the complainant along with the medical certification a prima facie case was made out. The 202 Cr. P.C. inquiry was necessary to be held as had been directed by him. Hence it must be held that without such inquiry there were no further materials before the Magistrate to take cognizance in the case, and direct issue of summons. The order of 19.3.1990 must therefore be quashed. That being so, it is no more necessary for me to go into the other question raised by the learned counsel.