M M LAL Vs. ASHOK KUMAR BISI

JUDGEMENT

(1.) THIS application under Section 397 read with Section 401, Criminal Procedure Code, 1973 by K. M. Lal, an officer of the Indian Police Service is directed against the order of the Subdivisional Judicial Magistrate, Sambalpur, dated 22.9.1980 taking cognizance against him of an offence under Section 323, I. P. C. after an enquiry under Section 202, Cr. P. C. on a complaint filed by the opposite party. The incident giving rise to the proceeding is alleged to have taken place on 25. 11. 1978. On that date the petitioner was the Superintendent of Police, Sambalpur. On 27.11. 1978 a complaint was filed before the S. D. J. M., Sambalpur by the opposite party, Ashok Kumar Bisi, alleging inter alia that the complainant who was an accused in G.R. Case No. 2054/78 was remanded by the Court to jail custody on 25. 11. 1978. After the aforesaid remand the complainant was taken from Court to the residence of the petitioner at about 7 P. M. There the petitioner was alleged to have abused the opposite party in filthy language, slapped and kicked him and pulled his hair, as a result of which the latter fell down on the ground. Thereafter, he was removed to Bargarh Jail at about mid -night. On these allegations the opposite party complained that the petitioner had committed an offence under Sections 341, 506, 323,204 and 504, Indian Penal Code.

(2.) AS it appears from the order sheet of the case on receiving the complaint the learned Sub -divisional Judicial Magistrate considered the question whether taking cognizance in the case is barred under Section 197, Criminal Procedure Code, answered the question in negative by his order, dated 11. 1. 1979 and decided to postpone issuance of process to the accused till completion of enquiry under Section 202, Criminal Procedure Code. In the enquiry two witnesses produced by the opposite party were examined. By order, dated 3.3.1979 the learned Sub -divisional Judicial Magistrate held that there was sufficient ground to proceed under Section 204, Criminal Procedure Code against the petitioner. The petitioner moved this Court in Criminal Revision No. 144 of 1979 against the said order. By order, dated 21. 2. 1980 the revision petition was allowed, the order dated 3. 3. 1979 was set aside and the proceeding was directed to go back to the position in which it was on 11. 1. 1979. The Court further directed that the enquiry under Section 202, Criminal Procedure Code would proceed in accordance with law. On receiving the records from this Court the learned Sub -divisional Judicial Magistrate by order, dated 12. 3. 1980 directed as follows : Send a copy of the complaint petition to Shri A. K. Dutta, Judicial Magistrate, First Class, Sambalpur, for enquiry under Section 202, Criminal Procedure Code and to submit his enquiry report positively by 3. 4. 1980 to which dated the case stands posted. Ask the complainant to file a copy of the complaint petition by 14. 3. 1980.

(3.) BEFORE taking - up the contentions raised by the learned counsel for the petitioner, it would be helpful to quote the provisions of Section 202, Criminal Procedure Code: