IMPORTANT POINT
An order under section 202 Criminal Procedure Code cannot be passed by Chief Judicial Magistrate entrusting a Judicial Magistrate to conduct an enquiry and report.

JUDGMENT

K.P. Mohapatra, J. - In this petition under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Code') the petitioner has assailed the order passed by the learned Chief Judicial Magistrate, Cuttack, taking cognizance of an offence under section 418 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') and has prayed for quashing the entire criminal proceeding.

2. The petitioner is the Managing Director of Konark Television Limited, whereas, the opposite party is a transport company. The opposite party through its Branch Manager of the branch office at Cuttack filed the complaint petition against the petitioner and alleged that it bad transported and delivered goods to the petitioner vide consignment note No. 4447 dated 4.1.1983 and consignment note Nos. 3694, 3695 and 3696 dated 8.3.1983. The transport charge amounting to Rs. 15,700/- was not immediately paid for delivery of the floods, but the petitioner promised that the amount shall be paid later. But despite requests and correspondence, the petitioner did not make payment of the transport charge, but on the other hand intimated the Opposite Party by letter that the transport charge for the aforesaid consignments had been paid to M/s. Konark Transport Co. which, however, had no authority to receive such payment. On 29.7.1983 another consignment of goods was ready for delivery by the opposite party on payment of the transport charge of Rs. 15,000/-. But the petitioner as on the previous occasion wanted to take delivery of the goods, but deferred payment of the transport charge. The opposite party, earlier having had the bitter experience with the petitioner, did not agree to the proposition, did not deliver the goods and stored the same in its godown at Cuttack. Later the opposite party sent the bill of Ks. 24,000/- which included the transport charge, as well as, godown rent, but the petitioner did not take delivery of the goods on making the payment. On the other hand, he submitted a false report at Madhupatna Police Station against the Branch Manager and an employee of the opposite party for offences under sections 204, 407 and 420 I.P.C. on the basis of which, G.R. Case No. 2391 of 1983 was initiated and got them arrested. He also got the goods released in his favour. For doing so, the petitioner acted fraudulently and dishonestly. He also created false documents and used them as genuine. Therefore, the petitioner had committed offences under sections 195, 209, 211, 403, 405, 415, 417, 418, 420, 424, 453, 464, 468, 470 and 471 I.P.C.

3. On 3.10.1983 the learned Chief Judicial Magistrate examined the Branch Manager of the opposite party and directed a Judicial Magistrate to conduct inquiry under section 202 of the Code. The learned Judicial Magistrate conducted the inquiry and submitted his report to the learned Chief Judicial Magistrate. By the impugned order dated 4.1.1984 the learned Chief Judicial Magistrate, on consideration of the report of the inquiry, took cognizance of an offence under section 418 I.P.C. and directed issuance of process.

4. Mr. Jayant Das, learned counsel appearing for the petitioner, raised the following contentions;

(1) The learned Chief Judicial Magistrate acted in wrongful exercise of jurisdiction in taking cognizance of an offence under section 418 I.P.C. against the petitioner on the basis of an inquiry conducted by a Judicial Magistrate under Section 202 of the Code.

(2) Even assuming that all the allegations made by the opposite party in the complaint petition are true, no offence under section 418 I.P.C. has been made out.

(3) The petitioner being a public servant not removable from his office save by or with the sanction of the Government and is accused of an offence alleged to have been committed by him while acting in discharge of his official duty, cognizance of an offence under section 418 I.P.C. should not have been taken without the previous sanction of the State Government as contemplat