A.B. BARMAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this petition the Petitioners, who were accused in I.C.C. Case No. 112 of 1981 of the Court of the Chief Judicial Magistrate, Berhampur, prayed for quashing the order dated 26.7.1982 by which cognizance of an offence punishable under Section 354 I.P.C. was taken against them.

(2.) IN order to appreciate the contention raised in this case, it is necessary to relate a few facts. Opposite party No. 2 was the complainant. She was serving as an Assistant Teacher' in South Eastern Railway M.E. School of Berhampur town. Petitioner No. 1 was the Assistant Engineer of the said Railway and was the Chairman of the School Committee. Petitioner No. 2 was the husband of another Assistant Teacher of the said school. In the complaint petition filed on 21.10.1981, opposite party No. 2 alleged that on 19.10.1981 at about 3.45 p.m. in the presence of the staff of the school and others the Petitioners, as well as three other persons, abused her in obscene language, misbehaved with her and forcibly took her signatures on some papers. She, therefore, stated that they had committed offences under Section 294, 304 and 506 I.P.C. On 28.10.1981 the initial statement of opposite party No. 2 as recorded by the Chief Judicial Magistrate and enquiry under Section 202 of the Code of Criminal Procedure ('Code' for short) and submit his report. The District Inspector of Schools submitted his report of enquiry which was placed before the Chief Judicial Magistrate on 5.1.1982. After consideration thereof, he rejected the report and gave a further direction to the Additional Chief Judicial Magistrate, Berhampur, in conduct a fresh enquiry, in course of which he examined only two witnesses and submitted a report to the effect that there was a prima facie case under Section 354 I.P.C. against the Petitioners atone. This report was considered by the Chief Judicial Magistrate on 28.7.1982 and peculiarly enough he took cognizance of the offence under Section 354 I.P.C. against all the five accused persons mentioned in the complaint petition. It is worth while to note here that revisions were carried and ultimately except the Petitioners, the order of cognizance against the rest was quashed.

(3.) THE decision in the case of Omprakash Sahu v. Manmohan Mohanty and Anr. (supra) is being consistently followed by this Court. It was held therein that an order under Section 202 cannot be passed entrusting a Judicial Magistrate to conduct an enquiry and such an enquiry report made by another Magistrate on the basis of an order passed by the Sub -Divisional Judicial Magistrate is invalid and the accused persons cannot be summoned on the basis thereof and as such, order summoning the accused persons is illegal and against the provisions of the Code. In the present case, as would appear from the order dated 5.1.1982, the Chief Judicial Magistrate entrusted the enquiry under Section 202 to the Additional Chief Judicial Magistrate who actually conducted the enquiry and submitted his report. The order of cognizance was based on such report. The case is, therefore, covered by the principle laid down in the decision of the case of Omprakash Sahu v. Manmohan Mohanty and Anr. (supra) and on the impugned order of cognizance dated 28.7.1982 is liable to be set aside.