Heard Mr. BK Goswami, learned counsel appearing for the petitioner complainant. Also heard Mr. DS Bhattacharyya, learned counsel appearing for the opposite parties/accused, namely, Pradip Kumar Talukdar, Sub Inspector of Police and Jantu Nath, a constable.

2. Also perused the previous order dated 6.11.95 which reveals that both side's learned counsel have shown their deserve as to get this matter finally heard and disposed of at this stage.

3. Mr. Goswami, learned counsel submits that it was improper on the part of the learned Judicial Magistrate, Mangaldai, Darrang vide his order dated 29.7.95 marked as Annexure VII in connection with a complaint case so lodged by the petitioner bearing CR Case No.1055 of 1995 under section 323/201IPC finding prima facie material against the accused opposite parties committing offence coming under the purview of section 323/201 read with section 34 IPC and then instead issuing processes for facing the trial under section 204 CrPC, giving a direction as coming from the impugned order of the learned Judicial Magistrate directing the complaint as to procure sanction in this regard withholding the issue of process.

4. Complaint's case in short is that while he was moving on the road on a motor-bike without helmet the accused opposite parties on official duty as the persons from police department deputed and engaged on 19.7.95 at about 10AM for controlling traffic in Mangaldai Town, stopped the complainant and severely assaulted him as detailed in the complaint petition and what was expected of the accused opposite parties was to detain him and forward him to the nearest Magistrate, if any offence is said to have been so committed under the provisions of Motor Vehicles Act for contravention of the provisions for not using the helmet. But after stopping the complainant petitioner as per the complaint petition coming from the mouth of the complainant being supported in his statement on solemn affirmation and also by one of the witnesses so cited and presented before the Magistrate namely Jainur Ali, the accused opposite party members in excess of their official duty manhandled the complainant and also assaulted him as detailed in paragraph 2 and 3 of the complaint petition which need not be repeated. It is pointed out that though the opposite parties/accused happened to be public servants but to the extent of their stopping the complainant and taking him to police station for not using the helmet can well be said to have been the act coming under the purview of discharge of their official duty. But Mr. Goswami has pointed out that overt-acts so committed by them after locating the complainant petitioner manhandling him and inflicted injuries on his person in support of which medical certificate is said to have been filed at the time of lodging of the complaint and again also attempting to cause disappearance of the evidence of offence by forcing to change the blood stained garments etc, on no account can be said to be an act which was so exercised in their official duty and the allegation being with regard to the opposite parties/accused's beating the complaint in that course for which prima facie material was also so found by the Judicial Magistrate, had left no occasion for directing the complainant petitioner as to obtain sanction under the provisions of section 197 CrPC. Mr. Goswami, learned counsel submits that by a plain reading of the complaint petition it will transpire that their act can well be bifurcated in two parts. First by stopping the complainant questioning as to why helmet was not used while found moving on two wheeler and another part with regard to the complainant manhandled as detailed in the complaint petition at paragraph 2 and 3. The first part of the complaint, the learned counsel for the petitioner submits can well be said to be an act committed in exercise of official duty which is quite separable with the other part of the act committed by the opposite parties/accused. For b

Click Here to Read the rest of this document