GOKULANANDA MOHANTY AND ORS. Vs. MURALIDHAR MALLIK

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure of 1973 seeks to quash the proceeding in a complaint case from the stage of issue of process on 1 -10 -1977 and asks for a direction to the trial Court to proceed with the matter from the stage of holding an enquiry as contemplated by the proviso to Section 202(2) of the Code.

(2.) THE short facts are these: The opposite party filed a petition of complaint in the Court of the learned Sub -Divisional Judicial Magistrate of Cuttack on 1 -10 -1977 alleging commission of offences punishable under Sections 147, 323, 379 and 504 of the Indian Penal Code. The learned Magistrate took cognisance of the offences, examined the complainant as provided under Section 200 of the Code and recorded the following order:

(3.) MR . Patnaik for the Petitioners contends that the learned Sub -Divisional Judicial Magistrate having been empowered by the Chief Judicial Magistrate as provided in Section 192(2) of the Code on was certainly entitled to take cognisance of the offences and though in the petition of complaint it has been alleged that offences triable by a competent Magistrate had been committed, on application of his judicial mind, the learned Sub -Divisional Judicial Magistrate was of opinion that an offence triable exclusively by the Court of Sessions had been committed. Therefore, he was required to comply with the requirements of Section 202(2), proviso and until the said mandatory provision had been satisfied, no process under Section 204 of the Code could issue. It is further contended that the learned Sub -Divisional Judicial Magistrate clearly went wrong in directing a committal enquiry, inasmuch as such enquiries had been abolished under the new Code. There is no dispute that committal enquiry has been done away with and the direction given on 1 -10 -1977 while transferring the case to another Magistrate to hold committal enquiry was incompetent.