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1980 DIGILAW 307 (KER)

HAMEED v. SUGATHAN

1980-11-20

KADER

body1980
Judgment :- 1. This revision petition is filed by the complainant in a private complaint, S. T. No. 1762/78, on the tile of the Addl. Judicial Magistrate of 1 Class, Quilon, seeking to revise an order passed by that court dismissing the complaint against the 5th accused in the case and issuing summons to accused 1 to 4 only under S.323 read with S.34 I.P.C. 2. The complainant was said to be at the material time working as a pharmacist at the E. S. I. Dispensary, Chathanoor. The 5th accused is the Additional Insurance Medical Officer who was in charge of the dispensary and the 1st accused is the Sub Inspector of Police, Chathanoor. The second accused is the Head Constable and accused 3 and 4 are constables attached to the Chathannoor Police Station. 3. It is said that on a complaint made by the 5th accused alleging theft of medicine from the dispensary with the connivance and instigation of the revision petitioner herein, the revision petitioner was arrested on 10-7-1978 from the dispensary. 4. The allegations in the complaint filed by the revision petitioner are that on 10-7-78 at about 9 a. m. in pursuance of phone call by the 5th accused, accused 1 to 4 came to the dispensary in a taxi car, abused the revision petitioner in obscene language and also caught hold of him and belaboured him. It is alleged that he was beaten, fisted and kicked and subjected to various other tortures and that all these were done at the instance of the 5th accused who was present there, it is also alleged that the revision petitioner was dragged to the taxi car and then taken to the police station and while in the car also he was tortured like anything and after reaching the police station he was kicked and beaten successively by the constables in the presence of the Sub Inspector of Police. There are other allegations also in the complaint. After taking the sworn statement of the revision petitioner, as the Magistrate found that the complaint tiled before him contained an additional accused who was not mentioned or implicated by the complainant in his statement given before the judicial Magistrate of Second Class, directed the complainant to produce witnesses 1 and 2 mentioned in the schedule of witnesses to ascertain the veracity of the complaint. After examining these two witnesses, the learned Magistrate proceeded to issue summons only against accused 1 to 4 under S.323 read with S.34 I. P. C. It is this order that is assailed before this Court in revision. 5. Attacking this order, the learned advocate appearing for the petitioner submitted that the learned Magistrate has exceeded his jurisdiction by meticulously cross-examining the complainant while taking his sworn statement, that this is a serious illegality and that in any view, the order impugned being not a speaking order without giving reason or ground for dismissing the complaint against the 5th accused and proceeding against accused 1 to 4 alone and that too under S.323 read with S.34 I. P. C., is clearly illegal and cannot be sustained. The counsel for the petitioner also submitted that the complainant was in the hospital for more than 21 days and during this period, he was unable to pursue his ordinary avocations and that it is clear from the sworn statement of the revision petitioner that he was unable to do work for two months and therefore the offence disclosed was clearly one under S.325 I.P.0 and not under S.323 I. P. C. 6. The learned advocate appearing for the first accused submitted that there is no illegality committed by the learned Magistrate while recording the sworn statement of the complainant; that a reading of the sworn statement will show that there was no meticulous cross-examination as alleged and therefore on that ground the order in question cannot be interfered with. The counsel further submitted that the exaggerated versions in the complaint itself are sufficient to show or indicate that the complaint is false; that this complaint is filed as a counter-blast to the theft case registered against the revision petitioner and that none of the witnesses examined implicated the fifth accused in the case. The counsel also submitted that there is nothing on record to show that during the 21 days the complainant was said to be in the hospital he was unable to pursue his ordinary avocations and therefore the offence disclosed is only one under S.323 IPC. 7. I have been taken through the sworn statement of the revision petitioner. Although certain questions are seen put to him by the Magistrate, it cannot be characterised as a cross-examination of the complainant. 7. I have been taken through the sworn statement of the revision petitioner. Although certain questions are seen put to him by the Magistrate, it cannot be characterised as a cross-examination of the complainant. In an enquiry under S.200, it is the bounden duty of the Magistrate to elicit all facts not merely with a view to protect the interests of an absent accused but also with a view to bring to book a person or persons against whom grave allegations are made. In other words, the object of an enquiry under this Section is two-fold: one of the objects is to carefully scrutinise the allegations and averments made in the complaint with a view to prevent an accused from being called upon to face an obviously frivolous complaint and the other object which is also equally important is to find out what material there is to support the allegations in the complaint. In order to achieve these objects, a Magistrate in an enquiry of this nature is entitled to put such questions as are necessary to bring out all the facts but it should not take the shape of a meticulous cross-examination. There has been no such meticulous cross-examination in this case and it cannot be said that the Magistrate has exceeded his jurisdiction in this respect. The counsel for the revision petitioner submitted that the impugned order which is laconic should be set aside in the light of the decision of the Supreme Court reported in AIR. 1963 SC 1430 - Chandra Deo v. Prakash Chandra. It is not for the purpose of finding out whether there is a prima facie case made out against the accused or whether there is a probability of securing conviction that an enquiry under S.202 is conducted. 1963 SC 1430 - Chandra Deo v. Prakash Chandra. It is not for the purpose of finding out whether there is a prima facie case made out against the accused or whether there is a probability of securing conviction that an enquiry under S.202 is conducted. It is clear from sub-section (1) of S.202 that the very object of the enquiry is to find out whether the allegations made in the complaint are intrinsically true and for that, the Magistrate has to satisfy himself whether there was sufficient ground for proceeding, on a due consideration of the complaint and the sworn statement taken by him or statements recorded in an enquiry under S.202 or the statement or statements made in an investigation, as the case may be It is necessary that the Magistrate should give reasons for the dismissal of a complaint under S.203 and at least his order should indicate that he has considered the evidence taken by him or the statement recorded as the case maybe. Dismissal of a complaint under S.203 Cr. P. C. without giving reasons as required thereunder is an error of a kind which goes to the root of the matter. The complainant is entitled to know why his complaint was dismissed as it would enable him to consider whether he should approach the revisional court. The order under attack suffers from the infirmity pointed out by the Supreme Court The order is not a speaking order and it is not clear from the order what is the ground or reason on which the complaint against the 5th accused was dismissed and why the complaint was taken on file only under S.323 read with S.34 IPC Therefore this order cannot be sustained, the same is hereby set aside and the learned Magistrate is directed to dispose of the matter afresh in accordance with law and pass appropriate orders. The Magistrate is also directed to dispose of the case as expeditiously as possible.