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CASE NO.:

Appeal (crl.) 942 of 2007

PETITIONER:

JAPANI SAHOO

RESPONDENT:

CHANDRA SEKHAR MOHANTY

DATE OF JUDGMENT: 27/07/2007

BENCH:

C.K. THAKKER & TARUN CHATTERJEE

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 942 OF 2007

ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 4174 OF 2006

C.K. THAKKER, J.

1. Leave granted.

2. An important and interesting question of law has

been raised by the appellant in the present appeal which

is directed against the judgment and order passed by the

High Court of Orissa on June 20, 2006 in Crl. M. C. No.

5148 of 1998. By the said order, the High Court quashed

criminal proceedings initiated against the respondent-

accused for offences punishable under Sections 294 and

323 of the Indian Penal Code, 1860 (hereinafter referred

to as ’IPC’).

3. Brief facts of the case are that the appellant is a

complainant who is inhabitant of village Damana under

Chandrasekharpur Police Station. He had constructed

many shops on his land on the side of the main road of

Chandrasekharpur Bazar from which he was earning

substantial amount by way of rent. It is alleged by the

complainant that the accused was, at the relevant time,

Inspector of Police at Chandrasekharpur Police Station

and was aware that the complainant was receiving good

amount of income from shop rooms erected by him.

4. According to the complainant, on February 2, 1996,

a Constable of Chandrasekharpur Police Station came to

his house and informed him that he was wanted by

Officer-in-charge of the Police Station (Bada Babu) at 9

p.m. with monthly bounty. It was alleged by the

complainant that even prior to the above incident, he was

repeatedly asked by the accused to pay an amount of

Rs.5,000/- per month as illegal gratification, but he did

not oblige the accused. At about 9.30 p.m. on February

2, 1996, the complainant went to Chandrasekharpur

Police Station where the accused was waiting for him

anxiously to extract money. As soon as the complainant

entered the Police Station, the accused abused him by

using filthy language. The complainant was shocked.

The accused pushed him as a result of which he fell

down and sustained bodily pain. The accused also

threatened the complainant that if the latter would not

pay an amount of Rs.5,000/- by next morning, the

former would book him in serious cases like ’NDPS’ and

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dacoity. The complainant silently returned home. On the

next day, he went to his lawyer and narrated the

incident. His lawyer advised him to lodge a complaint

before a competent Court instead of lodging FIR against

the accused. Accordingly, on February 5, 1996, the

appellant filed a complaint being ICC Case No.45 of 1996

in the Court of Sub Divisional Judicial Magistrate

(SDJM), Bhubaneswar against the respondent-accused

for commission of offences punishable under Sections

161, 294, 323 and 506, IPC.

5. As stated by the appellant, the SDJM examined

witnesses produced by the appellant-complainant

between March 29, 1996 and July 24, 1996. The matter

was adjourned from time to time. Ultimately, on August

8, 1997, the learned Magistrate on the basis of statement

of witnesses, took cognizance of the complaint filed by

the complainant and issued summons fixing December

19, 1997 for appearance of accused observing inter alia

that on the basis of the statements recorded, prima facie

case had been made out for commission of offences

punishable under Sections 294 and 323, IPC.

6. According to the appellant, the summons was

served on the respondent-accused but he did not remain

present. After more than one year of issuance of

summons, non-bailable warrant was issued by the

learned Magistrate on September 23, 1998. The accused

thereafter surrendered on November 23, 1998. He,

however, filed a petition in the High Court of Orissa on

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