KANHAI RAUT Vs. BUDHAN MAHTO

JUDGEMENT

(1.) This reference Under Section 438 of the Cr.PC 1898 (hereinafter to be referred to as 'the Code') has been made by Shri Sharda Prasad, Sessions Judge, Bhagalpur. By an order, dated 30-1-1973 S. N. P. Singh, J. as he then was, directed it to be heard by a Division Bench, as he was of the view that there was a conflict between the decision in S.N.Dubey v. Devi Kant Jha and the umreported decision, D.00 26-1-1972, passed in Shital Prasad Singh v. Janeshwar Singh (Criminal Misc. No. 897 of 1970 (Pat)) by Mr. Justice J. Narain. That is how the case is before us.

(2.) On 8th Dec, 1969, the opposite party, Budhan Mahto, filed a complaint petition before the Sub-Divisional Magistrate of Banks alleging offences having been committed Under Sections 144 and 379 of the IPC Shri Surya Narain Sinha, 2nd Officer of Banka examined the complainant on solemn affirmation on the same day and thereafter passed an order for enquiry Under Section 202 of the Code by Shri S. N. Gupta, Magistrate, Banka, who submitted his report on the 30th May, 1970, stating that no prima facie case bad been made out. On 13th June, 1970, the complainant filed a protest petition and the matter was placed, before Shri P. Aind, 3rd Officer, Banka, who passed an order on 17th June, 1970, the relevant portion of which runs as follows:

(3.) During the hearing of this case, we considered it expedient to obtain a report from the District Magistrate of Bhagalpur whether there had been drawn up a distribution list of work of the Gazetted Officers at the Sub-Divisional level as contemplated Under Section 17 (1) of the Code. In such circumstances, the case after being heard, in part, was adjourned.