BIRAJA PRASAD ROY Vs. NAGENDRA NATH DASH

JUDGEMENT

(1.) This application under Sections 397/398 and 401 Criminal Procedure Code is directed against the order dated 26-3-1981 of the Chief Judicial Magistrate, Cuttack refusing to issue process against the opposite party on the complaint filed by petitioner. The petitioner, Biraja Prasad Ray, filed a complaint case bearing I.C.C. No. 238 of 1979 against the opposite party Nagendra Nath Dash, who at the relevant time was the Sub... Inspector of Police, Sadar Police Station, Cuttack. In the petition filed on 11-6-1979 the petitioner stated that he is a well known person enjoying a high status in society as a social worker and an AT class contractor and an Ex-member of the Legislative Assembly, he is also connected with many educational and charitable institution like Salepur etc., his sons are also well placed in life. The petitioner further stated that being a social worker, he used to render help to the people on being approached. According to the petitioner, in December, 1977 one Monorama Mishra wife of Banshidhar Mishra complained before him that she and her family members Were being harassed frequently by the opposite party and the police. The lady with her family wanted to take shelter in the house of the petitioner. Though the petitioner was initially reluctant to accede to her request he ultimately gave in due to her repeated entreaties. Accordingly, Monorama and her two daughters lived in the out house of the residence of the petitioner at Jobra in Cuttack town. The petitioner thereafter continues to narrate that when he was the M.L.A. from Mahanga constituency he had occasion to complaint against one N.P. Singh, Officer-in-charge, Mahanga P.S. about the atrocities committed by the said Police Officer against the villagers for this the police had been harhouring a revengeful attitude against the petitioner. On 16-12-1917 when the petitioner was away at Andhra Pradesh rendering relief to the cyclone affected people, a false news flash was given in the daily news paper, the Samaj, containing certain insinuation against him. On his return, when the petitioner came to know about the news he sent an open letter to the S.P. Cuttack on 19-12-1977 making allegations against Sadar police and demanded an enquiry. This was yet another reason to arouse anger of the police against the petitioner. The Sadar police had registered G.R. case No. 2964/1977, G.R. 2962/71 and G.R. 2963/17 against one Banshidhar Mishra and others, which were pending in the court of the Sub-divisional Judicial Magistrate, Cuttack. N.P. Singh, Officer-in-charge, Mahanga Police Station gave a false report under section 110 Criminal Procedure Code against the petitioner and arrested him on 29-1-1978. The petitioner was produced before the Sub-divisional Judicial Magistrate, Cuttack. in Non F.I.R. case No. 9 of 1978 under section 110 Criminal Procedure Code and was released on bail on 30-1-1978 inspite of the objection by the said N.P. Singh for the petitioners release. The petitioner further alleges that since the opposite party note a grudge against him, he wanted that some how or other the petitioner should be retained in custody. Though, the opposite party know that the petitioner was in no way involved in the above mentioned three G.R. Case he incorrectly with intent to keep the petitioner in Jail custody filed three separate application on 30- 1-1978 in the said cases praying therein to remand the petitioner to custody. In view of the said reports and the offence alleged being under section 395 Indian Penal Code, the petitioner was not released on bail immediately. Oil 22-7-1978 when charge sheet was placed in the three cases, no prima facie case having been made out against the petitioner, he was not charge sheeted. On the allegations stated above, the petitioner filed a complaint against the opposite party for offence under sections 218 and 219 Indian Penal Code. On the complaint petition an enquiry under section 202 Criminal Procedure Code was held by the court below. In course of the said enquiry, the relevant records in the three G.R. cases were called for and perused by the court and the statement of the complainant was recorded. On consideration of the materials, the court below passed the order dismissing the complaint, holding that no prima facie case was made out against the opposite party for issue of process.

(2.) Sri S.K. Dey, the .learned counsel for the petitioner, contends that the reason given by the court below for dismissing the petition of complaint does not satisfy the requirements of section 203 Criminal Procedure Code and hence the impugned order is liable to be set aside and re-enquiry should be directed as provided under section 398 Criminal Procedure Code. Sri Dey further contends that the records in connected G.R. Cases reveal that there was no material therein to enable the opposite party to form an opinion that the detention of the petitioner was necessary for the purpose of investigation of the case. The opposite party, a public officer entrusted with duty of maintaining records in the said cases committed an offence under sections 218 and 219 Indian Penal Code in submitting an incorrect report on 29-1-1978 and 30-1-1978 opposing the release of the petitioner on bail.

(3.) Sri P.K. Mishra, the learned counsel for the opposite party, on the other hand, submits that the impugned order is correct and justified in the facts and circumstances of the case. According to him, the records reveal that Banshidhar Mishra was arrested from the house of the petitioner. Banshidhar made a statement that he was using the cycle of the petitioner for moving about from place to place. It was also the admitted position that the wife and daughters of the said Banshidhar Mishra were living in the house of the petitioner petitioner. Materials to these effects were found in the case records in the three G.R. cases. In these circumstances, the prima facie, opinion formed by the opposite party that in the interest of investigation of the three G.R. cases the detention of the petitioner was necessary was based on tangible facts. As such, the opposite party committed no offence under sections 218 and 219 Indian Penal Code in submitting the report referred to above.