BHABANI KINKAR MOHAPATRA AND 4 ORS. Vs. STATE

JUDGEMENT

(1.) PETITIONERS are accused persons in G. R. Case No. 167 of 1985 and have assailed the order of the Sub -Divisional Judicial Magistrate dated 5 -8 -1985 taking cognizance under Sections 509/323134, Indian Penal Code.

(2.) PETITIONER No. 1 was' serving as the District Inspector of Schools, Bhanjanagar and Petitioners 2,3,4 and 5 are sons and daughters of Petitioner 'No. 1. 'Petitioner's case is that on 26 -4 -1985 one Sarmista Pati lodged a report at Bhanjanagar Police Station making some allegations against Petitioner No. 1 to the effect that Petitioner No. 1 took money from her for her absorption against a permanent post, but yet did not absorb her and on the date of occurrence it was alleged that she was on the verandah and demanded return of the money but the sons and daughters of Petitioner No. 1 assaulted the informant. After registering a case the police then investigated into the matter and ultimately submitted a final form on 31 -5 -1985 stating therein that no offence is made out against the Petitioners. Notwithstanding the submission of the said final form, the learned Magistrate, however, by the impugned order dated 5 -8 -1985 without applying his mind to the materials on record, took cognisance against the Petitioners and the said order of taking cognisance .is being impugned. Mr. Ratho, the learned Counsel for the Petitioners, raises two contentions in assailing the order of cognizance, namely ;

(3.) SO far as the first submission of Mr. Ratho is concerned, it is based on, an analysis of the provisions contained in Sections 173 and 190 of the Code of Criminal Procedure. According to Mr. Ratho, filing of charge -sheet or final form lies within the jurisdiction of the police and in a case where the police files final form and the Magistrate is satisfied that the opinion of the police is not based on a full and complete investigation, then he may have jurisdiction to give further direction to police under Section 156 (3) of the Code to make further investigation, but he cannot take cognisance differing with the opinion of the police. In support of the aforesaid contention, he places reliance on the decision of the Supreme Court in the case of Abhinandan Jha and Ors. v. Dinesh Mishra : 1967 S.C.D. 985 : A.I.R. 1968 S.C. 117. A scrutiny of the aforesaid -Supreme Court decision in my opinion, does not support the contention of the learned Counsel for the Petitioners. The question which arose for consideration the said Supreme Court case was whether a Magistrate could direct the police to submit a charge -sheet when the police after investigation into a cognisable offence has submitted a final report under Section 173 of the Code of Criminal Procedure. After an .elaborate discussion on that point and referring to the divergent views of different High Courts and on an analysis of the provisions of the Code of Criminal Procedure, the Supreme Court held that the Power to file charge -sheet under Section 173 of the Code lay .with the police and the Magistrate had no power to direct the police to file a charge -sheet. While saying so, the Supreme Court also considered the power of the Magistrate in a case where the: police files the final form and the Magistrate comes to the conclusion that there has been no due inquiry. After referring to Sections 173 and 156 (3) of the Code the Supreme, Court held: