STATE Vs. NARAYAN BISOI

JUDGEMENT

(1.) THE learned Additional Sessions Judge, Sundargarh has made this reference under Section 438, Criminal Procedure Code for quashing the decision of a Magistrate First Class, Rourkela in a G. R. Case.

(2.) THE prosecution alleged that P.W. 2 Sabitri and her husband Arun (P.W. 4) were sleeping in a room which had no door leaves in their house at Gopabandhupalli near about Rourkela in the district of Sundargarh in the night of 15/16 -9 -72. At about midnight the accused entered into the room, caught hold of P.W. 2's right hand and dragged her making certain sexual overtures. She resented it, raised hulla and gave one or two slaps to the accused. P.W. 4 got up from sleep, caught hold of the accused, tied him with a rope with the help of others and lodged first information report. The accused was sent up for trial under Sections 451 and 354, I.P.C. At the trial both the husband and the wife as also two other local witnesses being P.Ws. 1 and 3 were examined to support the prosecution case. The learned Magistrate accepted the case of trespass, but was of the view that the prosecution had failed to establish the offences punishable under Sections 354 and 451, I.P.C. Convicting the accused under Section 448, I.P.C. he sentenced him to pay a fine of Rs. 100 or in default suffer S.I. for seven days.

(3.) ON a perusal of the record I find justification for the indignation of the learned Additional Sessions Judge. Indignation, however genuine and warranted, cannot overcome the statutory bars provided under Section 439, Criminal Procedure Code Sub -Section (4) of Section 439, Criminal Procedure Code provides,