O R D E R

02.11.2021 None appears on call for the petitioner.

2. Heard Mr. R.K. Choudhury, learned counsel appearing on behalf of Mr.

H.R.A. Choudhury, learned Senior Counsel for the respondent.

3. This revision petition under Section 397/ 401 of the Code of Criminal Procedure is directed against the order dated 07.01.2009 passed by the learned Chief Judicial Magistrate, Dibrugarh in C.R. Case No. 318/2008 under Section

352 of the IPC, which order is as under:

“Complainant is present. Accused is also present.

The particulars of offence u/s 352 IPC stated to the accused to which accused pleaded not guilty.

Fix on 21.2.09 for evidence.”

4. On 26.08.2008, the respondent had filed a complaint case before the Court of the learned Chief Judicial Magistrate, Dibrugarh, which was registered as C.R. Case No. 318/2008 against the Bata India Ltd. and four others including the present petitioner.

5. The primary allegation made in the complaint case dated 26.08.2008 against the present petitioner has been highlighted in paragraph 9 thereof, which are as follows:

“9. That on 21.08.2008 at about 11.15 A.M. when the complainant was discharging his official duty at the shop of Bata Shoe Stores, R.K.B. Path, Dibrugarh, the accused no. 4, Gaurav Vohra, obstructed the complainant discharging his official works and physically manhandled the complainant by forcefully pushing away the complainant with utmost disrespect and impudence with abusive and offensive words; which caused gathering of adjacent shop owners and passersby in the shop. These wrongful acts of the accused Gaurav Vohra lowered the reputation of the complainant in the eye of the public at large. Caused humiliation of the complainant.

6. It was on the basis of the aforesaid complaint case filed by the respondent on 26.08.2008 that the impugned order dated 07.01.2009 was passed by the learned Chief Judicial Magistrate, Dibrugarh whereby particulars of offence under Section 352 IPC has been stated to the accused to which the accused pleaded not guilty and accordingly, the matter was fixed on 21.02.2009 for evidence. The primary challenge made by the petitioner to the aforesaid impugned order dated 07.01.2009 is that the Chief Judicial Magistrate, Dibrugarh without having recorded the existence of prima facie case in the complaint attracting the offence under Section 352 IPC, the next date has been fixed on 21.02.2009 for evidence.

7. Section 352 of the IPC reads as follows:

“Punishment for assault or criminal force otherwise than on grave provocation.—Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Explanation.—Grave and sudden provocation will not mitigate the punishment for an offence under this section. If the provocation is sought or voluntarily provoked by the offender as an excuse for the offence, or if the provocation is given by anything done in obedience to the law, or by a public servant, in the lawful exercise of the powers of such public servant, or if the provocation is given by anything done in the lawful exercise of the right of private defence. Whether the provocation was grave and sudden enough to mitigate the offence, is a question of fact.

”

8. Section 352 of the IPC as quoted hereinabove provides for punishment with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both to whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person.

9. The complaint dated 26.08.2008 lodged by the respondent makes an allegation that on 21.08.2008 at about 11.15 AM when the complainant was discharging his official duties at the shop of Bata Shoes Store, R.K.B. Path, Dibrugarh, the accused no. 4, Gourav Vohra,