D.P. Mohapatra, J.
1. This application under Section 397 read with Section 401, Criminal Procedure Code, 1973 by K. M. Lal, an officer of the Indian Police Service is directed against the order of the Subdivisional Judicial Magistrate, Sambalpur, dated 22.9.1980 taking cognizance against him of an offence under Section 323, I. P. C. after an enquiry under Section 202, Cr. P. C. on a complaint filed by the opposite party.
The incident giving rise to the proceeding is alleged to have taken place on 25. 11. 1978. On that date the petitioner was the Superintendent of Police, Sambalpur. On 27.11. 1978 a complaint was filed before the S. D. J. M., Sambalpur by the opposite party, Ashok Kumar Bisi, alleging inter alia that the complainant who was an accused in G.R. Case No. 2054/78 was remanded by the Court to jail custody on 25. 11. 1978. After the aforesaid remand the complainant was taken from Court to the residence of the petitioner at about 7 P. M. There the petitioner was alleged to have abused the opposite party in filthy language, slapped and kicked him and pulled his hair, as a result of which the latter fell down on the ground. Thereafter, he was removed to Bargarh Jail at about mid-night. On these allegations the opposite party complained that the petitioner had committed an offence under Sections 341, 506, 323,204 and 504, Indian Penal Code.
2. As it appears from the order sheet of the case on receiving the complaint the learned Sub-divisional Judicial Magistrate considered the question whether taking cognizance in the case is barred under Section 197, Criminal Procedure Code, answered the question in negative by his order, dated 11. 1. 1979 and decided to postpone issuance of process to the accused till completion of enquiry under Section 202, Criminal Procedure Code. In the enquiry two witnesses produced by the opposite party were examined. By order, dated 3.3.1979 the learned Sub-divisional Judicial Magistrate held that there was sufficient ground to proceed under Section 204, Criminal Procedure Code against the petitioner. The petitioner moved this Court in Criminal Revision No. 144 of 1979 against the said order. By order, dated 21. 2. 1980 the revision petition was allowed, the order dated 3. 3. 1979 was set aside and the proceeding was directed to go back to the position in which it was on 11. 1. 1979. The Court further directed that the enquiry under Section 202, Criminal Procedure Code would proceed in accordance with law. On receiving the records from this Court the learned Sub-divisional Judicial Magistrate by order, dated 12. 3. 1980 directed as follows :
Send a copy of the complaint petition to Shri A. K. Dutta, Judicial Magistrate, First Class, Sambalpur, for enquiry under Section 202, Criminal Procedure Code and to submit his enquiry report positively by 3. 4. 1980 to which dated the case stands posted.
Ask the complainant to file a copy of the complaint petition by 14. 3. 1980.
'Thereafter, the enquiry under Section 202 Criminal Procedure Code proceeded before Shri A. K. Dutta, Judicial Magistrate, First Class, Sambalpur. The order sheet of the Court reveals that he recorded the statements of two witnesses, G. B. Nanda and B. Satpathy produced by the complainant on 8. 9. 1980. On consideration of the materials by order, dated 24. 9. 1980 Shri B. Tarasia, Judicial Magistrate, First Class, Sambalpur, submitted the report to the effect that there is a strong prime facie case against the accused-petitioner to proceed against him under Sections 323/5G4, Indian Penal Code. On receiving the said report the Sub-divisional Judicial Magistrate passed the impugned order on 22. 9. 1980 which reads as follows :
'Perused the enquiry report under Section 202, Cr. P. C. Gone through the statements of witnesses examined during the enquiry. I am fully agree with the report of the J. M. F. C.
Cognizance taken against the accused under Section 323, I. P. C., Summon the accused fixing 10. 11. 1980. Requisites by 10. 10. 1980.
Sd/- M. Patnaik.
It is worth noting here that the impugned order passed on 22. 9. 1980 states that the Sub-divisional Judicial Magistrate has perused the report under Section 202, Criminal Procedure Code though the said report appears to have been submitted on 24. 9. 1980. This order of the Sub-divisional Judicial Magistrate is in challenge in the present revision petition.
3. The learned counsel for the petitioner has contended that the enquiry under Sec 202, Criminal Procedure Code is invalid and the impugned order taking cognizance and issuing of process against the petitioner on the basis of the report in the said enquiry is unsustainable. He submits that it was not open to the Sub-divisional Judicial Magistrate to entrust the enquiry to another Judicial Magistrate in view of the provisions of Section 202, Criminal Procedure Code. It is further contended by the learned counsel for the petitioner that the impugned order has been passed without due application of mind which is apparent from the fact that it mentions that the Court has perused the report of the enquiry under Section 202, Criminal Procedure Code though the said report had not bean received by the Sub-divisional Judicial Magistrate by that date: The learned counsel has further submitted that an the materials available on record no prima facie case under Sec, 323, Indian Penal Code is made out against the petitioner.
4. Before taking- up the contentions raised by the learned counsel for the petitioner, it would be helpful to quote the provisions of Section 202, Criminal Procedure Code:
'202. Postponement of issue of process-(1) any Magistrate, on receipt of a complaint of an offence, of which he is authorized 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)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 warrent.'
From the aforesaid provision, it is clear that when the Magistrate, on receipt of the complaint, decides to act under Section 202 he has got a discretion either to make the enquiry himself or direct an investigation by a police officer or by such other person he thinks fit. He has to choose one of these alternatives. He cannot have recourse to them all. The section under the, Old Code of 1893 empowered the Magistrate to direct an enquiry by a Magistrate subordinate to him or by a police officer or other person as he thinks fit. The words, 'by any Magistrate subordinate to him' have been omitted in the present section. As such, the question of entrusting the enquiry to a subordinate Magistrate does not arise. Necessarily, the words 'by such other person' excludes a Judicial Magistrate subordinate to the Magistrate directing the enquiry. Entrusting the enquiry under Section 202, Criminal Procedure Code in the present case to Sri A. K. Dutta, Judicial Magistrate, First Class, was not in accordance with the provisions of the Code. Thus, the enquiry under Sac. 202, Criminal Procedure Code and the impugned order passed on the basis of the report in the said enquiry are vitiated. A similar view has been taken by my learned brother B. K. Behera, J. in the case of Omprakash Sahu v. Manmohan Mohanty reported in 1984 (I) OLR 340 : 57 (1984) C. L. T. 355. In the said decision the Court has placed reliance on the decisions of the Calcutta and Patna High Courts reported in I. L. R. LVII (1978) Patna-903,1. L. R. LVII(1979) Patna-79 and 1976 Cr. L. J. 876. Therefore, the first contention raised by the learned counsel for the petitioner succeeds.
Coming to the other contention raised on behalf of the petitioner, it is clear from the impugned order that the Sub-divisional Judicial Magistrate purports to rely on the report in the enquiry under Section 202, Criminal Procedure Code though the said report had not been submitted to him by that date. As noticed earlier, the report was signed on 24.9. 1980, where the impugned order was passed on 22. 9. 1980. I verified these dates from the order sheet of the case and found them to be correct. It is not understood how the report finds mention in the impugned order. To say the minimum it clearly shows non-application of mind by the Sub-divisional Judicial Magistrate and the impugned order is vitiated thereby. The second contention raised on behalf of the petitioner also succeeds.
In view of the aforesaid findings it is not, necessary to examine the statements of witnesses recorded in the said enquiry.
In the result, the application is allowed, the impugned order taking cognizance of the offence on the basis of the report of enquiry made by the Judicial Magistrate and directing issue of process against the petitioner is set aside and the criminal proceeding against him is quashed. The learned Sub-divisional Judicial Magistrate may proceed in accordance with law.