Decided on December 12,1988



L.Rath, J. - (1.) A complaint filed by the petitioner having been dismissed under section 203, Cr.P.C. by the S.D.J.M., Bhubaneswar, the petitioner has moved this Court in revision. The petitioner came before the court with the allegation that the opposite parties, all police officers of the Sahidnagar P.S., Bhubaneswar, District Pun, had assaulted his son severely on 24/3/1985 at about 12 OTclock in the night. On the complaint being filed, the learned S.D.I.M. after recording the statement of the complainant and examining two witnesses under section 202, Cr.P.C. and on perusal of the complaint petition, the initial statement as well as the statements of the witnesses rejected the complaint.
(2.) A perusal of the order of the learned Magistrate discloses besides the errors of appreciation of evidence, that he has not kept the provision of law in view. It was observed by the learned Magistrate that from the evidence of P.W. 1 it appeared that the opposite parties bad never assaulted the son of the petitioner, even though no such statement was made by P.W. 1. He is only a witness to the fact of having seen the opposite parties tying up the son of the petitioner and taking him forcibly. The evidence of P.W. 2 was discarded as not inspiring confidence since he had earlier been arrested by the opposite parties and had been remanded to jail arid there was no reason for him to go to the police station at the time of the alleged occurrence. P.W. 2 is a student of the M.S. Law College, Cuttack and had stated that in a previous case he had been bailed out on 22/3/1985, but the police had again taken him to the police station and detained him there till 25/3/1985 at 11 a.m. and that on the night of the occurrence i.e. 24/3/1985 he heard the cries of the petitioners Son, Gouranga Jena, and found the bands of his and another Khokan Jena being tied by the opposite parties and they assaulting them. The statement of the witnesses being such, there was nothing for the learned Magistrate at that stage to reject their evidence and refuse to take cognizance. It has been repeatedly held by the Supreme Court that at the time of issuing process, the accused has no locus standi to participate in the enquiry and that further the case is to be judged exclusively from the point of view of the complainant only. At that stage, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he has only to be prima facie satisfied whether there was sufficient ground for proceeding against the accused. It is not within his province to enter into a detailed discussion about the merits and demerits of the case and that in doing so he has to decide it purely from the point of view of the complainant without adverting to any defence the accused might have-vide Smt. Nagawwa v. Veeranna Shhalingappa Konjalgi and others1. The learned S.D.J.M. has also fallen into further error of law by holding that even if the facts stated in the complaint are correct, yet the opposite parties would be protected under section 197, Cr.P.C. since the acts complained of were in course of discharge of their duty in official capacity and without sanction under section 197, Cr.P.C. the prosecution was not maintainable. The view is wide of the mark of law since it is now well settled by various decisions of this Court and recently in Criminal Revisions Nos. 132 and 135 of 1984 (Sarbeshar Bahera v. Rangadhar Mohanty) decided on 22/7/1980, that assault by a police officer inside the police station even during investigation of a case, or abusing a person is not an action committed in discharge of any duty and that for such action the immunity from prosecution without a sanction of the competent authority is not available. In that view of the matter, it must be held that the order of the Magistrate is not supported in law and is quashed.
(3.) The revision is allowed and the case is remitted back to the court of the learned S.D.I.M., Bhubaneswar for proceeding with it from the stage of cognizance. The records be sent back immediately. Revision allowed.;

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