RAM CHANDRA PANIGRAHI Vs. LAKSHMAN DAS AND ORS.

JUDGEMENT

(1.) THIS is a petition for revising an order dated 28 -7.1952 passed by a Special 1st Class Magistrate of Aska in O.O. No. 10 of 1951 allowing the withdrawal of that case and acquitting the accused persons under Section 494 Code of Criminal Procedure. The learned Magistrate permitted the withdrawal of the case on the basis of a petition filed by the Court Sub - Inspector of Aska which was as follows:

(2.) IT is necessary to briefly recapitulate certain facts connected with he aforesaid case. On 17 -5 -1949 the Sub -divisional Magistrate of Russelkonda passed an order under Section 144 Code of Criminal Procedure restraining the opposite party from entering on the land in dispute. It was alleged that this order was disobeyed by the members of the opposite party on 29 -5 -1949. Thereupon, an information was lodged at Bodogodo police station and case No. 26 of 1949 under Section 188 I.P.C. was registered there. That case was renumbered as G.R. 35 of 1949 in the Court of a Magistrate at Aska. During the trial of that case, however, it was brought to the notice of the trying Magistrate that the entire proceeding was invalid inasmuch as a complaint by a public servant required by Section 195 Code of Criminal Procedure was absent. This omission was noticed on 13 -6 -1950 and then the trying Magistrate adjourned the case for several dates so as to enable the prosecution to make up its mind as to whether the case should be withdrawn or not. The District Superintendent of Police by his letter No. 1211(2)E. dated 29 -1 -1951 requested the District Magistrate to permit the withdrawal of the case on the ground that the case must, in any case, fail due to the absence of a proper complaint There was further correspondence between the District Magistrate and the District Superintendent of Police regarding that case and eventually after reading the D.O. No. 4770/V. dated the 26th June, 1952, the District Magistrate in his letter No. L. Die. 1829/51 dated 8 -7.1952 directed the withdrawal of that case and some other cases with which we are not concerned. His order was follows:

(3.) THUS the net result was that a case which had been dropped by the trying Magistrate on 21 -4 -1951 was ordered by the District Magistrate on 8 -7 -195 to be withdrawn. The District Magistrate in his explanation to this Court has frankly admitted that when he passed the order for the withdrawal of Bodogodo P.S. case No. 26 of 1949 (G.R. No. 35 of 1949) he was not aware of the fact that case had bean dropped by the trying Magistrate long before and that another complaint case (C.C. No. 10 of 1951) on the same facts was pending in the Court of the Magistrate at Aska. The Court Sub -Inspector's petition for withdrawal contains a reference to the order of the District Magistrate. Apparently, he thought that the order of the District Magistrate though, in terms referring to Bodogodo P.S. case No. 26/49, would also apply to C.C. No. 10 of 195 in respect of the same facts and he, therefore, asked for the withdrawal of the latter case.