JAGANNATH BOSE Vs. SUDHIR KUMAR RAY

JUDGEMENT

(1.) A short but interesting point has arisen in the present case. The present Criminal Revision under Section 397 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') read with Section 401 of the Code challenges the order dated 8 -9 -1994 passed by the Executive Magistrate, Cuttack in Crl. Misc. Case No. 473 of 1994 under Section 147 of the Code.

(2.) BY the impugned order the learned Magistrate has recorded that the second party members had filed a petition under Section 148, CrPC with a prayer to make local inspection of the alleged sweeper's passage and to stay the hearing of the case till then. The first party member filed objection on the ground that Section 148 of the Code deals with local inquiry and the Court has no power to depute a subordinate Magistrate to hold inquiry. Recording the contentions of both the parties, the learned Executive Magistrate has held that he does not have power himself not being a District Magistrate or a Sub Divisional Magistrate to depute a subordinate Magistrate to hold local inquiry. However, he has observed that since local inspection cannot take the place of legal evidence, the question of making local inspection would be considered after receipt of evidence of both the parties or, at any stage, if it is felt absolutely necessary by the Court for a just and fair decision. The petition filed under Section 148 of the Code was accordingly disposed of.

(3.) WITH this background the above matter has been placed before us for hearing. Patiently we have heard Mr. B. Pal, learned counsel for the petitioners, Mr. A.K. Mishra for the first party No. 1 and the learned Addl. Standing Counsel for the State for the purpose of answering the question involved in the present case. We find inter alia that Section 148 of the Code clearly lays down that: