KUMUDINI PADHI Vs. PRASANTA KUMAR MANDAL

JUDGEMENT

(1.) The petitioner has challenged the order passed by the learned Sub-Divisional judicial Magistrate, Udala, taking cognizance of the offence punishable under S.363, I.P.C. against her.

(2.) The petitioner was serving as a Chemistry Lecturer of the Udala College and was a tenant under the opposite party. On 7-5-1985 the opposite party filed a complaint petition against her and alleged that Rama Sahu, a minor girl was working in his house as a maid-servant having been entrusted to his legal guardianship, because she was an orphan. On 24-3-1985 the petitioner kidnapped her and with a student, named, Nirmal Kumar Prusty sent to her village Bahadagoda in Bihar to serve as a maidservant in the house of her sister's husband, Dr. Dinesh Sarangi. The opposite party lodged information at the police station and the Officer-in-change recovered Rama Sahu from the house of Dr. Sarangi and left her in the custody of her maternal uncle Subash Behera on 27-4-1985. On 8-5-1985 the initial statement of the opposite party was recorded and the learned judicial Magistrate passed an order staying the case under S.210 of the Criminal P.C. ('Code' for short) awaiting a report from Udala Police. The report did not reach him till 23-7-1985 and so on that date on consideration of the materials available on records, namely, the allegations made in the complaint petition, as well as in the initial statement of the opposite party, he Look cognizance of an offence under S.363, I.P.C. against the petitioner, but dismissed the complaint petition so far as the student Nirmal Kumar Prusty was concerned. This order has been challenged in this Court by Mr. R.N. Acharya, learned counsel for the petitioner, mainly on two grounds. First, while the order of stay under S.210 of the Code was still in force, the learned Judicial Magistrate committed an error by taking cognizance of the offence against the petitioner. Secondly, a consideration of the allegations made in the complaint petition, as well as in the initial statement, does not reveal a case under S.363, I.P.C. Accordingly, not only the order of cognizance, but also the entire proceedings is liable to be quashed.

(3.) So far as the first contention of Mr. Acharya is concerned, undoubtedly the provision of S.210(1) of the Code was invoked in view of the report which had earlier been lodged with the police by the opposite party relating to the same incident. But there is a decision of this Court reported in (1980) 49 Cut LT 605, Padmalochan Sahu v. Lokanath Sethi which does not support his contention. The problem in the reported case was almost identical to the present case. In that case a stay order under S.210(1) of the Code had been passed, but the police report was not received for a long time. In the aforesaid premises, Hon'ble S. Acharya, J. held as follows :-