SURENDRANATH SWAIN Vs. NANDA KISHORE PRADHAN

JUDGEMENT

(1.) PETITIONER , an Assistant Sub -Inspector of Police, is an accused in a complaint case bearing I. CC. Case No. 9 of 1963, pending in the Court of the Sub -Divisional Judicial Magistrate, Athmallik. The opposite party lodged a complaint against the petitioner and another constable making allegations that they committed offences under Sections 161, 342, 384, 504 and 506, Indian Penal Code. The complainant was examined under Section 100, Code of Criminal Procedure, and thereafter the learned Magistrate directed to hold an enquiry under Section 202 of the Code. Several witnesses were examined in course of the said enquiry and the learned Magistrate on being satisfied that prima facie a case has been established under Section 161, Indian Penal Code, took cognizance of the same and issued summons to the accused persons fixing 27.2 1984 for their appearance. This order of the learned Magistrate dated 18. 1. 1984 is being impugned in the present miscellaneous case and the inherent jurisdiction of this Court has been invoked.

(2.) MR . Das. the learned counsel for the petitioner, contends that in view of the provisions of Section 6 of the Prevention of Corruption Act, 1947 (hereinafter referred to as the 'Act'), no Court can take cognizance of an offence under Section 161, Indian Penal Code, without the previous sanction as contained in Section 6 of the Act, since admittedly the petitioner was a public servant on the date the alleged offence was committed and continued to be a public servant when cognizance was taken. In this view of the matter the order of the learned Magistrate taking cognizance is void. Mr. Ghose, the learned counsel for the opposite party, on the other hand, contends that since the prosecution is not one under the provisions of the Act, any provision thereof is not applicable and consequently, Section 6 of the Act has no application.

(3.) IN the result, therefore, would quash the cognizance so far as the petitioner is concerned and this Criminal Miscellaneous Case is accordingly allowed.