GAUTAM KUMAR DAS Vs. SARAJ KUMAR SAHU

JUDGEMENT

(1.) THE petitioners assail the orders dated 15.9.2001 (Annexure -2) and 18.10.2003 (Annexure -3) passed by the S.D.J.M. Keonjhar in I.C.C. case No. 37 of 2001 wherein she took cognizance of the offence under Sub -sections 12 and 13 of Section 115 of the Orissa Co -operative Societies Act, 1962 (in short 'the Act') and refused to recall the same respectively.

(2.) OPP .party was a member of Palasapanga LAMPCS, and was elected as the President of the said Society in the year 1996. The term of his office expired on 7.5.2001. During his term of office, petitioner No. 1 was the Chief Electoral Officer of the Co -operative Societies, Orissa, who authorized petitioner No. 2 to appoint Election Officers to conduct the elections of the members and presidents of the Committee of management of all the Co -operative Societies under Keonjhar district in due date. Accordingly, vide order No. 3 dated 31.1.2001, he appointed H.N. Mishra, Inspector of Co -operative Societies, office of ARCS, Keonjhar as the Election Officer of Palasapanga LAMPCS under petitioner No. 3. As such, the election process started from that date. According to the opp.party all the petitioners wilfully avoided to take further action in the matter of election and thereby held up the election contrary to the provision of Section 28 -B of the Act which mandates that election process of a society, once started can not be held up. So, opp.party filed the aforesaid complaint case against the petitioners and Sri H.N. Mishra to punish them under Sub -section 12 and 13 of Section 115 of the Act. The order -sheets show that after recording the initial statement of the opp.party on 9.5.2001 the learned S.D.J.M. adjourned the case to 4.6.2001 for enquiry under Section 202 of Cr.P.C. Then the case was adjourned to different dates and ultimately to 4.9.2001, when opposite party was found absent in the Court on call. However, the learned S.D.J.M. adjourned the case to 15.9.2001 on which date, perusing the complaint, initial statement of the opp.party and the Xerox copy of the documents filed, she took cognizance under the aforesaid sections as mentioned earlier and ordered to issue process against the petitioners.

(3.) BEING aggrieved with the orders dated 15.9.2001 and 9.4.2002 the petitioners preferred CRLMC No. 4682 of 2002 before this Court, wherein it was held that the view of the learned S.D.J.M. that the petitioners did not act in good faith and as such the provision under Section 129 of the Act could not be available to them appeared to be not in consistent with the provision of the Act and Code. The petitioners being Government Servants are either protected under Sections 197 Cr.P.C. or under Section 129 of the Act. Whether the petitioners passed order in good faith or not is a matter on record. Accordingly, the order dated 9.4.2002 passed by the learned S.D.J.M. was quashed and the case was remitted back to the Court below with direction that the learned S.D.J.M. shall dispose of the petition filed under Section 204 of Cr.P.C. afresh after hearing the parties. Accordingly the trial Court heard the parties afresh and rejected the petition under Section 204 of Cr.P.C. on the selfsame ground vide order dated 18.10.2003. Again being dissatisfied with the said order the petitioners have preferred the present CRLMC.