Decided on December 01,1978

Gokulananda Mohanty And Ors. Appellant
Muralidhar Mallik Respondents


R.N.Misra, J. - (1.) THIS application under Section 482 of the Code of Criminal Procedure of 1973 seeks to quash the proceeding in a complaint case from the stage of issue of process on 1 -10 -1977 and asks for a direction to the trial Court to proceed with the matter from the stage of holding an enquiry as contemplated by the proviso to Section 202(2) of the Code.
(2.) THE short facts are these: The opposite party filed a petition of complaint in the Court of the learned Sub -Divisional Judicial Magistrate of Cuttack on 1 -10 -1977 alleging commission of offences punishable under Sections 147, 323, 379 and 504 of the Indian Penal Code. The learned Magistrate took cognisance of the offences, examined the complainant as provided under Section 200 of the Code and recorded the following order: ... Heard learned advocates. They submit that it is properly a case under Section 395, Indian Penal Code as the congregation was for purposes of snatching away the money and wrist -watch. Considered. Cognisance under Sections 395, 323 and 504, Indian Penal Code taken against accused persons. Case to Sri B.B. Mohanty, M. F. C. for committal enquiry and disposal as per Hon'ble High Court's letter No. 903 dated 31 -5 -1975. Complainant to appear there. On the same day, the transferee Magistrate made the following order: Case is received on transfer and taken to my file. Complainant is present. Issue N. B. W. against the accused persons fixing 4 -1l -1977 for appearance. On 2 -11 -1977, the accused persons except accused Kalandi surrendered in Court and applied for bail. On 4 -11 -1977, an application on their behalf was made for their discharge contending that before process was issued against them, the proviso to Section 202(2) of the Code of Criminal Procedure should have been complied with and as long as there was no such compliance, process could not have been ordered to issue. They, therefore, required the learned Magistrate to recall the order of Issue of non -bailable warrant against them and to examine the complainant's witnesses as required by the proviso. The learned Magistrate by a reasoned order and relying on some observations of this Court in the case of The State v. Kastu Behera : 41 (1975) C.L.T. 487 came to reject the application. This revision petition has been carried against that order. When the application was listed for admission and hearing before a learned Single Judge, on behalf of the Petitioners it was contended that the observations of this Court in the decision relied upon by the learned Magistrate require reconsideration and the matter was, therefore, directed to be heard by a Division Bench where the correctness of the decision of the Single Judge could be considered. That is how the revision application has been placed before us for hearing.
(3.) MR . Patnaik for the Petitioners contends that the learned Sub -Divisional Judicial Magistrate having been empowered by the Chief Judicial Magistrate as provided in Section 192(2) of the Code on was certainly entitled to take cognisance of the offences and though in the petition of complaint it has been alleged that offences triable by a competent Magistrate had been committed, on application of his judicial mind, the learned Sub -Divisional Judicial Magistrate was of opinion that an offence triable exclusively by the Court of Sessions had been committed. Therefore, he was required to comply with the requirements of Section 202(2), proviso and until the said mandatory provision had been satisfied, no process under Section 204 of the Code could issue. It is further contended that the learned Sub -Divisional Judicial Magistrate clearly went wrong in directing a committal enquiry, inasmuch as such enquiries had been abolished under the new Code. There is no dispute that committal enquiry has been done away with and the direction given on 1 -10 -1977 while transferring the case to another Magistrate to hold committal enquiry was incompetent.;

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