GIRIDHARI MOHAPATRA Vs. PARBATI DEI

JUDGEMENT

(1.) PETITIONER No. 1 is the sub -Inspector and petitioners Nos. 2 to 4 are constables. On 19 -2 -65, one Jagabandhu Sahu of Manjuri Road lodged an F. I. R. alleging that a dacoity was committed at his house on the night of 18 -2 -65, Opp. party filed a complaint before the S. D. M., Bhadrak on 24 -2 -65 alleging that in connection with the aforementioned report of dacoity, her husband Chandramoni Jena as well as his brother and brother's son were taken to the house of Jagabandhu where they were brutally assaulted, as a result of which, Chandramoni died. Thereafter, petitioners secretly carried the dead body and put it on the railway track to make it appear that death resulted due to falling under a moving train. This complaint was sent by the S. D. M., Bhadrak to the Magistrate, 1st Class (Executive) for enquiry under Section 202, Criminal Procedure Code The enquiring Magistrate submitted his report on 19 -6 -65 expressing the opinion that the complaint was malicious and did not warrant taking cognizance. After receipt of the report, the learned S. D. M. made further enquiries, finally accepted the report and dismissed the complaint petition under Section 203 Criminal Procedure Code on 15 -1 -66. Against the said order of dismissal, opp. party filed a criminal revision. The learned Additional Sessions Judge by his order dated 10 -2 -67 set aside the order of dismissal and directed further enquiry. It is against this order that the present revision petition has been filed by the petitioners.

(2.) THE only point urged by learned counsel for petitioners is that the learned Additional Sessions Judge has erred in setting aside the order of dismissal and directing further enquiry on sufficient grounds. According to him, the learned Additional Sessions Judge passed the aforementioned order mainly on the ground that the order of the S. D. M. is vitiated as in the enquiry under Section 202, Criminal Procedure Code police officers were permitted to participate. For opposite party, on the other hand, it is contended that from the record it is patent that two serious illegalities were committed during the enquiry under Section 202, Criminal Procedure Code, and as such, the learned Additional Sessions Judge was right in setting aside the order of dismissal and directing further enquiry.

(3.) THE point for consideration in this case is whether applying the aforesaid tests, the impugned order passed by the learned Additional Sessions Judge can be said to be invalid or passed on insufficient grounds. In the present case, it is not disputed that the Executive Magistrate 1st Class received the complaint for enquiry under Section 202, Criminal Procedure Code on 2.3.65. Notice was given to the police authorities and repeated adjournments appear to have been taken by them on applications expressing difficulty to attend on some ground or other to watch the proceedings. In all, five witnesses have been examined by the complainant. A perusal of the depositions shows that each of these witnesses has been cross -examined at length and except in the case of witness No. 2 where the cross -examination is noted as if it was by the Court, the rest of the depositions show that they were simply cross -examined as in a regular trial. No doubt, as has been observed by the Supreme Court, the Magistrate himself is free to put such questions to witnesses produced before him by the complainant as he may thick proper in the interests of justice, but it is not permissible for the Magistrate to put any question at the instance of the person named as accused nor can the opposite party be permitted to cross -examine. In the case of at least four of the witnesses, the record shows that the cross -examination does not purport to be in the nature of answers elicited to questions put by the Court. The learned S.D.M., who passed the order under Section 203, Criminal Procedure Code, while dismissing the complaint has himself observed: