IMPORTANT POINTS
1. The provisions of Section 210 Cr.P.C. are mandatory in nature. It may be true that non-compliance of the provisions of section 210 Cr.P.C. is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr.P.C., unless error, omission or irregularity has also caused the failure of justice.
2. Excesses committed by the public servant during the performance of official duty are also protected under section 197 of Cr.P.C. It is the duty of the Court to find out whether the act done by the public servant and the official duty are so inter-connected/inter-related that one can postulate reasonably that it was done by the accused in performance of the official duty, though possibly in excess of the needs and requirements of the situation.

JUDGMENT

S.K. Sahoo, J.—The petitioner Biswa Bhanu Patnaik in CRLMC No. 1695 of 2004 was Superintendent, Sub Jail, Champua and petitioners Rajesh Kumar Satpathy @ Rajesh and Kalandi Nayak in CRLMC No. 2755 of 2004 were the Warders, Sub Jail, Champua and they have filed applications under section 482 of the Criminal Procedure Code challenging the impugned order dated 12.03.2004 passed by the learned Sub-divisional Judicial Magistrate, Champua in I.C.C. Case No. 03 of 2004 in taking cognizance of offences under sections 294/326/34 of the Indian Penal Code and section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’) and issuance of process against them.

2. Since both the CRLMC applications arise out of one case in which the common order is under challenge, with the consent of the respective parties, both the applications were heard analogously and disposed of by this common judgment.

3. A complaint petition was filed by the opp. Party Pagal @ Bugula @ Bibhuti Nayak on 19.01.2004 before the learned Sub-divisional Judicial Magistrate, Champua against the petitioners, on the basis of which the I.C.C. Case No. 03 of 2004 was registered. It is the case of the complainant-opposite party that the complainant was in custody in Sub Jail, Champua on 08.12.2003 and while the complainant was returning after taking his day meal, the Warders Rajesh Kumar Satpathy @ Rajesh and Kalandi Nayak obstructed the complainant and abused him in filthy language and when the complainant asked for the reason of such abuse, both the Warders assaulted him and intimated the facts to the petitioner Biswa Bhanu Patnaik who directed the Warders to apply third degree method on the complainant in such a manner that one of his limb would be inactive and accordingly, the Warders with the knowledge and consent of the Superintendent mercilessly assaulted the complainant for which the complainant sustained severe bleeding injuries on his body portion and on his right hand. The petitioners also abused the complainant in the name of his caste. The complainant was medically checked up and the doctor of Champua Sub-divisional Hospital plastered his right hand. It is further alleged that the petitioners tried to patch up the matter and did not allow anybody to meet the complainant and when the complainant’s counsel came to know about the same, he filed a memo before the learned C.J.M.-cum- Assistant Sessions Judge, Keonjhar where the complainant was facing trial in S.T. Case No.45/185 of 2003, for taking necessary action but no action was taken for which the complaint petition was filed.

4. The learned S.D.J.M., Champua on receipt of the complaint petition, recorded the initial statement of the complainant under section 200 Cr.P.C. and conducted inquiry under section 202 of Cr.P.C., during course of which, witnesses Padmalochan Giri and Dr. Narayan Pradhan were examined. On perusal of the complaint petition, initial statement of the complainant, statements of the witnesses, medical documents like O.P.D. register, x-ray plate, the learned Magistrate on 12.03.2004 came to hold that x-ray plate of the complainant indicates that there was hairline fracture on the middle 1/3rd of right radius of the complainant caused to him by the petitioners beyond the authority of them and in view of such injury of the complainant and the allegation of intentional insult to humiliate him for his being a member of Scheduled Tribe in public view, which was intermingled with the occurrence of assault, he found prima facie case under sections 294/326/34 of the Indian Penal Code and section 3(1)(x) of the 1989 Act and accordingly, the learned S.D.J.M., Champua took cognizance of such offences and issued process against the petitioners.

5. Mr. Yeeshan Mohanty, learned Senior Advocate appearing for the petitioners contended that even though the incident alleged to have taken place on 08.12.2003 but for the first time on 22.12.2003, a mem