The Magistrate has the jurisdiction to hold an enquiry under Section 202 Cr. P.C. in respect of the accused persons who are not involved in the police case.

JUDGEMENT

1. On the basis of a first information report lodged by one Bhagabat Mohanti, of village Baliapat within the Fategarh Police Station of Puri district alleging commission of several offences by the accused persons belonging to the adjacent village Sanasahara arising out of claim of using an orchard as graveyard for cremation of dead bodies. G.R. Case No. 34 of 1978 has been instituted and is pending trial in the Court of the Judicial Magistrate at Khandapara. A complaint has also been filed by one Jadumoni Naik of Baliapat several months after the alleged occurrence implicating several persons including some persons accused in the police case which has been registerered as Complaint Case No. 94 of 1978 and is pending in the same court.

In the first information report, it was alleged that the land in dispute is a part of mouza Baliapat and the villagers have tenancy right therein. The villagers of Sanasahar claiming right of cremation of dead bodies of people belonging to their village carried a dead body on the date of occurrence. Apprehending trouble, the informant's party had sought police help and two constables had been deputed to the spot to maintain peace. The Officer-in-charge of the Police Station also came there armed with a revolver. He had succeeded in collecting all the weapons from the two groups and put them in charge of a constable and had managed to keep the groups separated" At this point of time, on account of certain wild remarks made by the villagers of Sahara, dispute started and the police officer who fired blank shots with a view to pacifying the mob was attacked. He fired a shot resulting in the death of a villager of Baliapat. It was further alleged that one Dinabandhu Sahu of Sahara fired a pistol shot at Jadumani Naik of Balipat which hit him in the shoulder and he fell down. The learned Magistrate did not take cognizance of any offence against the police officer for want of the requisite sanction as required Under Section 132 of the Cr. P.C., but by his order dated 27-9-1979 took cognizance of offences under Ss.302, 307, 148, 326, 337/149. I.P.C. read with S.27 of the Arms Act against the rest of the accused persons. Criminal Revision No. 450 of 1979 is by the accused persons and they have asked for a direction that the case should proceed for trial of offences under Ss.147, 148, 149/337, I.P.C. and not for the remaining.

2. As already stated Jadumani filed a complaint against several persons of village Sahara including some of the accused persons in the Police case. The learned Judicial Magistrate by his order dated 27-9-1979 directed that :-

"Stay of further proceeding u/s. 210 Cr. P.C. is vacated as cognizance of offences u/s. 302/307/148/326/337/149 I.P.C. and u/s. 27 of the Arms Act have been taken against Dinabandhu Sahoo, Bhramar Dehury, Baidhar Patnaik, Banshidhar, Patnaik, Sanyasi Parida, Hari alias Harihar Patnaik, Adhikari Parida Bipinabehari Pattnaik Pura Parida, Sudarsan Dehury, Meiechha Jena, Khalli Parida, Gurubari Behera, Muli Biswal, Shyama alias Shyamabandhu Sahoo, Hari Padhan, Kasi Jena, Bidya Lenka, Sudarsan Jena, Naba alias Nabakishore Patnaik, Udayanath Parida, Lokanath Patnaik, Nidhi Padhan, Chhatia Parida, Baidhar Jena, Khali alias Harihara Lenka and, Basu alias Basudev Jena In G.R. 34/78.

It is also held in that case that D. Raipritam, the O.I.C. of Fategarh P.S. cannot be prosecuted except with the sanction of State Government as per the provisions of S.132 Cr. P.C. The case against them shall be tried together with G.R. Case No. 34/78 as if both cases were instituted upon police report as per the provisions of S.210(2) Cr. P.C. The complaint against rest of the persons shall proceed. Put up on 15-10-79 for an inquiry u/s. 202 Cr. P.C."

The enuiry proposed by the order is called in question in Criminal Revision No. 448 of 1979 and it is contended that the splitting up is not permissible. Reliance has been placed on a single Judge decision of the Delhi High Court in the