HAREKRISHNA SAHIPATHY Vs. MAHESWAR SAHU

JUDGEMENT

(1.) The two petitioners who are admittedly public servants and have been arrayed as accused persons in ICC Case No. 75 of 1983 pending in the court of the Judicial Magistrate First Class, Nimapara have invoked the jurisdiction of this Court under section 482 of the Code of Criminal Procedure against the order of cognizance passed by the learned Magistrate on the basis of the complaint filed by opposite-party No. 1. Earlier, they had moved the learned Sessions Judge ill revision and the said revision having been dismissed, they have approached this Court.

(2.) Petitioner No: 1 was the Tahsildar, Kakatpur, at the relevant point of time and petitioner No. 2 was the sub-Inspector of Police and Officer-in-charge of Kakatpur Police Station. The complainant- filed the complaint petition alleging therein that he had applied for a certified copy of the order of the Additional Tahsildar at Kakatpur Tahsil Office since the same was required to be produced before a consolidation authority. On the date of occurrence, he went to the office and was sitting on the verandah. At that point of time, petitioner No. 1 came and challenged as to why he had come to the office premises before the office hours and directed the complainant to vacate the premises. When the complainant said that he would not leave unless he obtained the certified copy applied for, petitioner No. 1 threatened him to leave forthwith or else he would face the consequences. When the complainant asserted that this was a public premises being a public office and he had the right to receive the certified copy of the order applied for, petitioner No. 1 became furious and immediately gave push to the complainant as a result of which the complainant fell down from the verandah. When he again-tried to go to the verandah, petitioner No. 2 who was passing by that road on being called by petitioner No. 1 came to the spot and gave a blow on the left fore-arm of the complainant by means of a bat on which he was holding as a result of which the Complainant got his bone fractured and there was severe pain. There upon, as directed by petitioner No. 2, another accused took the complainant to Kakatpur Police Station and made him sit till 11.00 a.m. The complainant then went to Kakatpur Hospital where the doctor stitched the textured skin and gave first-aid and referred him to Bhubaneswar Hospital for X-ray and necessary treatment. The complainant then went to Bhubaneswar Hospital and got himself admitted. The Xray report revealed a fracture and the complainant had to remain as an indoor patient till. 10.6.1983. He left Bhubaneswar only on 28.6.1983, under the advice of the doctor and thereafter filed the petition of complaint.

(3.) On receipt of the aforesaid complaint petition, the learned Magistrate recorded the initial statement of the complainant on 18.7.83, but instead of summoning the accused persons directed to hold an inquiry under section 202 of the Code of Criminal Procedure. In the said inquiry, the complainant examined one witness on his behalf and also produced the medical certificate and the X-ray plate on 29.8.1983 and the matter was adjourned to 6.9.1983. On 6.9.1983, the learned Magistrate on being satisfied on the materials on record that a prima facie case has been made out against the accused persons under sections 313/342/325, Indian Penal Code, took cognizance under section 323, Indian Penal Code, against petitioner No. 1, the Tahsildar and under sections 325 and 342, Indian Penal Code, against petitioner No. 2, the Officer-in-charge, but did not take cognizance as against the other accused and issued summons to the accused persons. While taking cognizance, the Magistrate also considered the question of applicability of section 197 of the Code of Criminal Procedure and came to the conclusion that on the allegations made in the complaint petition, section 197 could not be attracted. This order of the Magistrate was challenged by the petitioners before the learned Sessions Judge who disposed of the same by order dated 11.2.1986 by coming to the conclusion that the petitioners were not entitled to the protection of section 197, Code of Criminal Procedure, and hence the present revision.