RANJIT KUMAR SAMANTRAY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE seven petitioners are members of the second party in a proceeding under Section 107 of the Criminal Procedure Code before the City Magistrate of Cuttack and have been called upon to show cause why there should not be an order requiring each of them to execute a bond for rupees one thousand for keeping peace for a period of one year. This application under Sections 401 and 482 of the Criminal Procedure Code has been made for quashing the said proceeding on the ground that there is absolutely no material for the satisfaction of the City Magistrate that the petitioners be proceeded against under Section 107 of the Code,

(2.) THE learned Additional Government Advocate raised a preliminary objection that the impugned order is of interlocutory character and in view of the bar under sub -sec. (2) of Section 397 of the Code, the revision application is not maintainable under Section 401. Mr. Patnaik for the petitioners has taken the stand that the application is essentially one under Section 482 of the Code and mere mention of Section 401 may not be permitted to be relied upon for sustaining the preliminary objection. According to him, the application under Section 482 of the Code is maintainable notwithstanding Section 307(2) of the Code if petitioners, are able to satisfy this Court that there is absolutely no material for initiating the proceeding against them.

(3.) ACCORDING to Mr. Patnaik, accepting all the allegations to be true, no case at all has been made out against the petitioners excepting Babaji Charan Behera. He, therefore, contends that the learned Magistrate has acted without basis in starting a proceeding against the remaining six petitioners and if the proceeding is made to continue they would be unnecessarily harassed. In the case of Delhi Development Authority, New Delhi v. Smt. Lila D. Bhagat, AIR 1975 SC 495 : (1975 Cri LJ 435), the learned Judges were considering the ambit, and scope of Section 561 -A of the old Criminal Procedure Code of 1898. In para 7 of the judgment, the Court observed: - (at p. 437 of Cri LJ)