BHAGABAT PRASAD Vs. KALANJI

JUDGEMENT

(1.) ORDER :- This revision is directed against an order passed by the learned Judicial Magistrate, Second Class, Bhadrak, refusing to frame charge against the opposite parties for an offence under S.506, Part-II of the Indian Penal Code ('I.P.C.' for short).

(2.) The case has a chequered career. For appreciation of the points canvassed, it is necessary to state a few facts. The petitioner filed a petition of complaint against the opposite parties on 9-3-1978 (I.C.C. Case No. 88 of 1978) alleging offences under Ss.144, 447, 426 and 506, Part II, I.P.C. After recording the statement of prosecution witnesses; the learned Judicial Magistrate framed charges against the opposite parties for offences under Ss.144 and 506, Part-I, I.P.C. and refused to frame charges for offences under Ss.145, 447, 426 and 506 Part II, I.P.C. Being aggrieved, the petitioner filed a criminal revision before the learned Sessions Judge, Balasore which was dismissed as not maintainable. Thereafter he filed a writ petition in this Court (O.J.C. No. 746 of 1983) which was dismissed an 27-4-1983 with the observation that charge can be altered at any stage of the proceeding and it was open to the petitioner to move the Court for that purpose. In view of the above observation, the petitioner moved the learned Judicial Magistrate for framing charges under Ss.447 and 506 Part-II, I.P.C. but the learned Judicial Magistrate did not oblige. Against the order, the petitioner invoked the criminal revisional jurisdiction of this Court (Criminal Revision No. 284 of 1983). But the revision petition was dismissed with the observation that the learned Judicial Magistrate should consider the evidence of the prosecution witnesses in order to find out whether there was a prima facie case under S.506, Part-II, I.P.C. against the opposite parties and if such a case was made out, then he should submit the case record to the learned Chief Judicial Magistrate for directions. Pursuant to the aforesaid observation, the learned Judicial Magistrate again heard the parties, but came to hold by the impugned order that there was no prima facie case under Ss.447 and 506, Part II, I.P.C. This is how the criminal revisional jurisdiction of this Court has again been invoked in the self- same question.

(3.) Mr. Arijit Pasayat, learned counsel appearing for the opposite parties, raised a preliminary objection on the ground that the impugned order of the learned Judicial Magistrate refusing to frame charge is an interlocutory order and so the revisional jurisdiction of this Court cannot be invoked in view of the bar contained in S.397(2) of the Code of Criminal Procedure ('Code' for short). Mr. Ramakanta Mohanty, learned counsel appearing for the petitioner, countered by contending that the consistent view of this Court is that framing of charge by a Judicial Magistrate is not an interlocutory order. So the converse of it, namely, refusal of the learned Judicial Magistrate to frame charge is also not an interlocutory order. Therefore, the bar created by S.397(2) of the Code on Court's jurisdiction to entertain a criminal revision is inapplicable. The contentions raised are undoubtedly very interesting, but not so simple as they appear to be.