SARAT KUMAR MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner was serving as a Sub -Inspector of Police and was posted as Officer -in -charge, Kanpur Police Station. On the basis of his own information, he had lodged a report against one Dukhishyam Nayak, son of Madan Nayak and Anr. of village Rusiapada in the district: of Cut tack to the effect that on 10 -1 -1983 at 10.30 A. M., he heard some hullan while he was on duty at Tamara near weavers society. He went to' the spot and found several persons fighting in the public road in front of the society and disturbing public place. He found the accused persons involved in the incident and after registering a case, he took up the investigation and submitted the charge -sheet under Section 160 of the Indian Penal Code.

(2.) BEFORE the learned Magistrate, six witnesses were, examined on behalf of the prosecution and some documents were also exhibited but the defence examined none. After considering the entire materials on record, the learned Magistrate came to the conclusion that the prosecution had miserably failed to establish its case a against the accused persons and there was no reasonable ground for making accusation against the accused persons. After acquitting the accused persons by judgment dated 8 -4 -1985, the learned Magistrate initiated a proceeding against the informant the present Petitioner under Section 250 of the Code of Criminal Procedure and called upon the Petitioner to show cause as to why he should not pay compensation to the accused. Pursuant to the said notice, the Petitioner had filed a show cause and the Magistrate after considering the said show cause passed an order on 2 -5 -1985 to the effect that there was no reasonable cause or ground for accusation against the accused persons and the show cause submitted by the informant was not satisfactory and accordingly he directed the Petitioner to pay a sum of Rs. 100/ - as compensation to said Dukhishyam Nayak under Section 250 (2) of the Code of Criminal Procedure in default, he shall undergo simple imprisonment for a period of three days. The Petitioner not having paid the amount the Magistrate issued Distress warrant as well as Non -bailable warrant against the Petitioner. The Petitioner has, therefore, invoked the inherent jurisdiction at this Court of quashing the order of the Magistrate dated 2 -5 -1985 and the criminal proceedings initiated under Section 250 of the Code of Criminal Procedure as well as the order issuing Distress warrant and Non -bailable warrant. The main contention of Mr. Misra, the learned Counsel appearing for the -Petitioner is that the Petitioner is the officer -in -charge and had the duty to maintain law and order and in discharge at the said duty, he having come to know of certain offence being committed by the accused persons and having lodged the report on his own information pursuant to which a criminal proceeding was initiated against the accused persons, even if the Magistrate acquitted accused persons be cannot initiate a proceeding under Section 250. Code of Criminal Procedure since the case is not one instituted upon a complaint or upon an information given to a Police Officer or to a Magistrate. According to Mr. Misra, Section 250, Code of Criminal Procedure will have no application at all. In support of the aforesaid contention the learned Counsel for the Petitioner placed reliance on the decisions in the case of Mahomad Meera v. Dattatraya Babaji, A.I.R. 1941 Bom. 36. in the case of The Public Prosecutor v. Mulugu Jwala Subrahmanyam, A.I.R. 1951 A.P. 987 and in the case of Muhammad Hashim v. Emperor, A.I.R. 1940 Sind. 134 . In Mohamed Meera's case, A.I.R. 1941 Bom. 36 referred to supra, it was held by Their Lordships that "Section 250 read in conjunction with Section 190 applies to information given by a police officer if that information can come as a complaint under Section 190 (1) but not if it amounts to a report under Section 190 (l) (b). Thus Section 250 does not apply to a case instituted on a police report or on information given by a police officer either to his superior or to a Magistrate regarding a cognizable offence."

(3.) Both these aforesaid decisions proceed on the footing that the police officers are exempted from the operation of Section 250 of the Code as it is their duty to report cognizable offence to their superior officers and the Magistrate and they should not be hampered in the performance of that duty by the fear of action against them under Section 250. In fact in another decision of the Punjab High Court in the case of Phula singh v. The State , 1965 (2) Cri. L. J. 845 it was held by the Punjab High Court that when a police officer draws up an F. I. R. on his own information and after registering a case starts investigation and ultimately submits charge sheet on the basis of which case is registered and cognisance is taken and trial takes place the cognisance is taken obviously under Section 190 (1) (b) and a case is said to be instituted in such a case on the basis of a police report within the meaning of Section 173 of the Code and not a complaint to come within the ambit of Section 191 (1) (a) of the Code. In that view of the matter. Section 250 of the Code will not apply to such a case. I would, therefore, hold that the order of the Magistrate, initiating a proceeding under Section 250, Cr.P.C., the final order of the Magistrate directing the Petitioner to pay compensation of Rs. 100/ - after perusing the show cause of the Petitioner by 2 -8 -1985 as well as the subsequent order of issuance of Distress warrant and Non -bailable warrant against the Petitioner are all wholly without jurisdiction and are hereby quashed and so also the proceeding registered as "Miscellaneous case No. 23/85 is quashed.