HAREKRUSHNA MOHANTY Vs. ADIKANDO BEHERA

JUDGEMENT

(1.) ON 12-8-1964 Harekrushna Mpllanty filed a complaint in the Court of the Sub-Divisional Magistrate Puri, against (1) Adikando Behera, Officer-in-charge, Town p. S. , Puri (2) Prafuiia Babu, Sub-Inspector, (3) Dijen Babu, Sub-Inspector (4)Goura Charan Mohapatra, Havildar and (5) Biswanath Patnaik, Havildar, under sections 342, 352,354,426,427,447, 500 and 504 I. P. C. The main allegations were that on 10-8-64 at about 3 p. m. accused 2 and 4 served a notice under section 145, Cr. PC on the complainant. At about 7 P. M. accused 2, 4 and 5 came to the residential house of the complainant and asked him to attend Thana saying that accused 1 had sent for him. At the P. S. the complainant was detained till 9 p. m. He was kept under Police guard and was asked to furnish bail. While he was at the P. S. for 2 to 3 hours, accused 1 with other accused came to his house, unlawfully trespassed therein and forcibly drove out his wife, daughter, sister and other inmates from the house after abusing them in filthy language. When the complainant's sister Radhamani lodged protest, she was given a push as a result her forehead struck against the wall and she sustained an injury. All the inmates were drenched in the rain and were sitting on the outer verandah of the house. Many of his valuables were kept locked up in the house. It was stated that the complainant was residing as a tenant in the particular house designated as Mandal buildings. One Judhistir Jena, a rich contractor, attempted to oust the complainant from the said building. Having failed to do so, he influenced the accused, the police staff, to unlawfully force him out from the house. The high-handed action on the part of the Police affected the prestige, reputation and status of the complainant. The complainant was examined on oath. As the complaint was against the police, the learned Sub-Divisional Magistrate directed an enquiry Under section 202, Cr. PC. The matter was inquired into by a Magistrate of the first class, who submitted his report on 8-10-1964. His ultimate conclusion was to the effect: in view of the facts and circumstances stated above it will be better if the matter be t hrashed out in the proper court of law and justice meted out. After receipt of the report of the Enquiring Magistrate, Sri B. Mohapatra, S. D. M. Puri dismissed the complaint Under Section 203, Cr. P. C. Cr. Rev. No. 52 of 1964 in the- court of the sesssions' Judge, Furi fbv further enquiry Under Section 436 Cr. P. C. was dismissed on 16-12-64. The revision before the Sessions Judge was filed only against accused 1. The Cr. Revision in this Court is also directed only against accused 1. The order of the Sub-divisional Magistrate dismissing the complaint against the other four accused thus stands final and cannot be reagitated.

(2.) THE course of events before the Enquiring Magistrate may he traced. On 25- 864 he received the records for inquiry Under Section 202, Cr. P. C. On the very day he passed an order to the effect: this being a complaint against the sub-inspector of police, inform the prosecuting Inspector (P. I.) to be present during the iime of enquiry if he so liked and watch the proceeding. The same inquiry was adjourned to 7-9-64 when the complainant took time. The enquiring Magistrate directed that P. I. should be informed of the order of that date. On 23-9-64 out of seven P. Ws. six were examined. The Magistrate passed the following order-The P. I. on behalf of other parties present. To 3-10-64 on which date both parties to file their documents. On the date so fixed, the complainant filed certain documents. The P. I. prayed for time to argue the case as he was otherwise occupied. Time was granted till 6-10-64 for hearing when the complainant was heard and the case was adjourned to 7-10-64 for further hearing. On that date p. I. filed Station diary, Town P. S. and the Personal Diary of the Town inspector. After hearing he posted it for order to 8-10-64 when the report was submitted. The course of events during inquiry has been narrated at length to bring into bold relief the outstanding fact that the Prosecuting Inspector was allowed to file documents, to make suggestions to witnesses and to advance arguments on behalf of the accused almost in the way as it is done during trial. A reference to the depositions recorded by the enquiring Magistrate would show that suggestions were made to the witnesses at length. Obviously the suggestions were mere camouflage for cross-examination and they were done at the instance of P. I.

(3.) MR. Ray contends that the order of the Sub Divisional Magistrate dismissing the complaint Under Section 203 Cr. P. C. is contrary to law inasmuch as he did not confine himself to the statements on oath of the complainant and the 6 witnesses and the result of the enquiry but indulged in irrelevant consideration that the complainant may get redress of his grievances through the Court in seisin of the proceeding Under Section 145, Cr. P. C. and that he was in error in examining the materials on record as if these would justify a conviction and not with a view to see that there was sufficient ground for proceeding with the trial.