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Deena Nath Acharya Vs. Daitari Charan Patra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1975CriLJ1931
AppellantDeena Nath Acharya
RespondentDaitari Charan Patra and ors.
Cases Referred(Ramachandra Puja Panda Samant v. Jambeswar Patra
Excerpt:
.....- government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - provided that no such direction for investigation shall be made,-(a) where it appears to the magistrate that the offence complained of is triable exclusively by the court of session; provided that if it appears to the magistrate that the offence complained of is triable exclusively by the court of session he shall call upon the complainant to produce all his witnesses and examine..........the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:provided that no such direction for investigation shall be made,-(a) where it appears to the magistrate that the offence complained of is triable exclusively by the court of session; or(b) where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.(2) in an inquiry under sub-section (1), the magistrate may, if he thinks fit, take evidence of witnesses on oath:provided that if it appears to the magistrate that the offence complained of is triable exclusively.....
Judgment:

G.K. Misra, C.J.

1. Facts may be stated in short. The petitioner is an Assistant Settlement Officer and was in charge of the Baripada Town Settlement Camp on the date of occurrence. The accused were working as Amin, Inspector, Draftsman etc. in the same Settlement Camp on purely contract basis. Some days prior to the date of occurrence opposite parties were agitating for service benefits and resorted to strike. On 5-3-1974 the petitioner was not able to deposit undisbursed money as it was late after his attending to a staff meeting. He carried with him Government money amounting to Rs. 881.50 p, with challans and other papers in a bag to deposit the same next day. While he was coming from the office on a cycle the accused came from behind, caught hold of and assaulted him. They took away the cash and threw away the papers kept in the bag. The petitioner was rescued after the intervention of the police. When he came to his sense he found that the bag was lying on the ground and the money was missing. F. I. R. was lodged on the spot. After registering the case under Sections 379 and 147, I. P. C. the police started investigation. Finally charge-sheet was submitted only against three out of twelve accused under Sections 323, 341 and 504/34, I. P. C. The petitioner filed a protest petition as no charge-sheet was submitted against nine of the accused persons and as the investigation under Sections 147 and 379, I. P. C. had been dropped. A complaint was made against the inaction of the investigating officer. The petition was rejected by the Subdivisional Judicial Magistrate, Baripada, on 4-9-1974. A revision application before the Sessions Judge is pending.

On 6-9-1974 the petitioner instituted a regular complaint case (T, C. C. Case No. 78 of 1974) against the opposite parties under Sections 147, 379, 341, 323 and 504 read with Section 34, I. P. C. before the Subdivisional Judicial Magistrate, Baripada. Therein he made serious allegations against the investigating officer. On 9-9-1974 initial statement of the petitioner was recorded but three witnesses on his behalf present in Court were not examined and the case was posted to 19-10-1974. On that day the Magistrate did not examine the other three witnesses who were present in Court but directed investigation under Section 202, Cri. P. C. by police. As the order of the Magistrate was contrary to proviso (b) to Section 202(1), Cri. P. C. 1973 (hereinafter to be referred to as the new Code) Criminal Revision No. 30-M of 1974 was filed before the learned Sessions Judge who rejected the same as the impugned order was interlocutory. This application has been filed against the order of the Magistrate dated 19-10-1974.

2. Mr. Mohanty for the petitioner contended that the impugned order is without jurisdiction as it is contrary to proviso (b) to Section 202(1), Cri. P. C.

Mr. M. N. Das, on the other hand, contends that a second criminal revision at the instance of the petitioner does not lie.

Both the contentions require careful examination.

3. Section 202 runs thus:

202(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

It would thus be seen that the Magistrate has jurisdiction to direct an investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient ground for proceeding provided that no such direction for investigation shall be made unless the complainant and his witnesses present in Court have been examined on oath under Section 200. The exception is where the complaint has been made by a Court.

In this case the complaint was not made by any Court. It was obligatory on the Magistrate to examine the complainant and his three witnesses present in Court before he could direct an investigation to be made by a police officer as was done by him in the impugned order. Mr. Mohanty is, therefore, right that the Magistrate had no jurisdiction to pass the impugned order.

4. We have discussed at length in Cri. Misc. Case No. 221 of 1974, (Bhima Naik v. State in which judgment was delivered on 16-5-1975 : 1975 Cri LJ 1923 (Orissa) that an interlocutory order without jurisdiction is a nullity and it can be interfered with in revision. Such an interlocutory order being no order at all in the eye of law Section 397(2) is not a bar and is revisable under Section 401. The learned Sessions Judge failed to exercise the jurisdiction vested in him in not quashing the impugned order.

5. The further question for consideration, however, is whether a second revision to the High Court lies after the Sessions Judge rejected a revision filed by the petitioner. We have fully discussed this matter in Cri. Revision No. 16 of 1975 : Reported in 1975 Cri LJ 1921 (Orissa), (Ramachandra Puja Panda Samant v. Jambeswar Patra alias Jamuna Patra) and have held that at the instance of the party whose criminal revision was dismissed by the Sessions Judge a second revision does not lie. Section 399(3) is a bar. In this case the Sessions Judge dismissed the criminal revision of the petitioner. So at the instance of the petitioner a second revision is not maintainable.

6. To avoid the difficulty that a second criminal revision does not lie, the petitioner has resorted to the subterfuge of styling the application as a criminal misc. case under Section 482, Cri. P. C. which saves the inherent powers of the High Court. This section lays down that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The section does not confer a new jurisdiction on the High Court but merely saves the inherent powers of the High Court, This inherent power can be exercised in appropriate cases only in the exercise of the appellate or revisional jurisdiction of the High Court. The criminal misc. case should have been registered as a criminal revision. The bar of a second revision under Section 399(3) of the Code cannot be obviated by styling the application as a misc. case under Section 482, Cri. P.C. It has already been held by us in the unreported case referred to in paragraph 4 of this judgment that the inherent powers of the High Court under Section 482 cannot be invoked in a case which would conflict with any specific provision of the Code. We do not consider that in the facts and circumstances of this case Section 482 can be invoked.

7. For the foregoing reasons, the criminal misc. case is dismissed.

P.K. Mohanti, J.

8. I agree.


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