1984 Supreme(Ori) 47

ORISSA HIGH COURT
B. K. BEHERA, J.
OMPRAKASH SAHA
VERSUS
MANMOHAN MOHANTY AND ANOTHER
Criminal Misc. Case No. 781 of 1981,
Decided on : 21 -3 -1984.

An inquiry into a complaint under Section 202 of the Criminal Procedure Code, 1973 cannot be entrusted to a Judicial Magistrate.

Headnote:

CRIMINAL PROCEDURE CODE, 1973 - SECTION 202 - INVESTIGATION - BY JUDICIAL MAGISTRATE - NOT PERMITTED - INQUIRY BY JUDICIAL MAGISTRATE - NOT PERMITTED - INQUIRY BY JUDICIAL MAGISTRATE - ILLEGAL AND INVALID.

Fact of the Case:

A petition of complaint was made before the Sub-divisional Judicial Magistrate, Baripada, by the opposite party No. 1, against the petitioner and Smt. Ginidevi Saha for commission of offences punishable under Secs. 341, 366 and 498 of the Penal Code. The learned Sub-divisional Judicial Magistrate recorded the initial statement of the opposite party No. 1 and fixed a date for inquiry under S. 202 of the Criminal P. C., 1973 (Act No. 2 of 1974), with a direction to the opposite party No. 1 to produce all his witnesses. On the date fixed for inquiry, the learned Sub-divisional Judicial Magistrate made a direction to send copies of the complaint and the initial statement of the opposite party No. 1 to the court of Mr. G. P. Rao, Judicial Magistrate, First Class, to hold the inquiry under Section 202 of the Code and submit his report. On October 24, 1981, the learned Sub-divisional Judicial Magistrate, on the basis of the report of inquiry of the Judicial Magistrate, dismissed the complaint against the accused Smt. Ginidevi Saha, took cognisance of the offences punishable under Secs. 341, 356 and 498 of the Penal Code against the petitioner and the opposite party No. 2 and issued processes against him. The petitioner filed an application under Section 482 of the Code, assailing the order taking cognisance and the order directing issue of processes against the petitioner and the opposite party No. 2 as being illegal and invalid in law.

Finding of the Court:

The Court held that the impugned orders taking cognisance and directing the issue of processes to the accused persons on the basis of a report of inquiry by a Judicial Magistrate are illegal, having been passed in violation of Section 202 of the Code. The Court further held that the learned Sub-divisional Judicial Magistrate had also violated the mandatory provision of law by not calling upon the complainant to produce all his witnesses and to examine them, as required under Section 202 (2) of the Code.

Issues: 1. Whether an inquiry into a complaint under Section 202 of the Criminal Procedure Code, 1973 can be entrusted to a Judicial Magistrate? 2. Whether the expression "such other person" occurring in sub-sec. (1) of Section 202 of the Code to whom a direction can be issued for investigation includes a Judicial Magistrate?

Ratio Decidendi: 1. The Court held that under Section 202 of the Criminal Procedure Code, 1973, an investigation can be made by a police officer or by any person other than a Magistrate who is authorised in that behalf. The term 'investigation' includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. 2. The Court further held that the reference to a Magistrate in Sec. 202 is to be construed as reference to a Judicial Magistrate. On receipt of a complaint, if the Judicial Magistrate thinks fit to postpone the issue of process, he may himself inquire into the complaint. If a case has been made over to him under Section 192, he may also inquire into the case himself. However, the Magistrate may direct an investigation to be made by a police officer or such other person as he thinks fit to find out as to whether there is a prima facie case against an accused person before the issue of process against him. Section 202 thus provides that investigation can be made by a police officer or by any other person, not being a Judicial Magistrate, who is thought fit and is so authorised by a Magistrate in that behalf.

Final Decision: The Court allowed the application, set aside the impugned orders taking cognisance of the offences on the basis of a report of inquiry made by a Judicial Magistrate and directing issue of processes against the petitioner and the opposite party No. 2 and quashed the criminal proceeding against them.