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2000 DIGILAW 1226 (PAT)

Arun Kumar Singh v. State Of Bihar

2000-11-06

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. This petition has been preferred by the Complainant in Complaint Case No. 40 C of the 1995 against the impugned order dated 16.1.1996 by which the then learned Chief Judicial Magistrate, Ara at Bhojpur had dismissed the complaint under Sec. 203 of the Code of Criminal Procedure (the Code, in short). 2. In this matter, the learned Counsel for the petitioner, learned Addl. P.P. and learned Counsel for the Opposite Part No. 2 Amrendra Singh have been heard. No one turned up on behalf of Opposite Part Nos. 3 and 4. 3. The allegation, in brief, as made out in the complaint petition against Amrendra Singh, Inspector of Police, and two other police officers was that on 4.2.1995 they along with a police force had entered into the house of the complainant, searching the rooms and from a box they had taken Rs. 18,000.00 as well Rs. 12,000.00 from the almirah of his father, without giving any seizure-list even on demand and they also took away one Scooter of the brother of the complainant. The allegation was that the accused had taken property belonging to the complainant and his father for causing them financial loss, mental harassment and by non-observance of the provisions of Sec. 100 of the Code, were guilty of offence under Sec. 166 of the Indian Penal Code. 4. It will appear that after examination of the complainant on solemn affirmation, the learned Magistrate preferred to proceed under Sec. 202 of the Code and commenced to inquire into the case by directing the complainant to produce witnesses at which four witnesses were produced. When the matter was taken up by the learned Magistrate for deciding as to whether or not the accused should be summoned, the learned Magistrate, in order dated 23.9.1995, after noting the names of witnesses examined by the complainant, observed that since the prosecution was silent about details of the case in which the alleged search was made by the accused-persons, an inquiry into the matter from a senior Police Officer was essential for ends of justice and, accordingly, directed Sri Rajiv Ranjan, Dy. S.P. at Ara to make an inquiry into the allegation and report to the Court. It will appear that such are port was submitted in which the search and its legality were justified by the Deputy Superintendent of Police. S.P. at Ara to make an inquiry into the allegation and report to the Court. It will appear that such are port was submitted in which the search and its legality were justified by the Deputy Superintendent of Police. The matter again came up before the learned Magistrate for deciding as to whether or not the accused should be summoned. In order dated 16.1.1996, which is the impugned order, the learned Magistrate noted the facts of the case and the fact that four witnesses were examined by the complainant and also noted as to under what circumstances further enquiry was ordered to be conducted by the Deputy Superintendent of Police and then proceeded to discuss the report of the Deputy Superintendent of police. After noting the facts mentioned in the report in detail and also noting that the money allegedly obtained in course of Bank dacoity for which a case was instituted, was recovered in course of aforesaid search which was conducted after observing all the legal formalities, the learned Magistrate ordered that the complaint case be dismissed. 5. Shri Kanhaiya Prasad Singh, learned Counsel for the petitioner in course of arguments has assailed the order of Magistrate on following grounds: (i) that having inquired into the case himself the learned Magistrate, under the provisions of Sec. 202 of the Code, could not have sent the case for enquiry or investigation to a Police Officer, (ii) In any case since, the allegations were against the police officers, the order for inquiry by a superior police officer was not proper, hence on that basis the complaint case could not have been dismissed and, (iii) That the learned Magistrate in the impugned order has relied entirely upon the report of the Deputy Superintendent of Police without in any way taking into consideration the statement of the complainant on solemn affirmation and the evidence adduced by the four witnesses on behalf of the complainant. 6. 6. Learned Additional Public Prosecutor and learned Counsel for opposite Party No. 2 have justified the order on the ground that the Magistrate was not at all helpless if on a particular point he felt that evidence was not brought on the record and in order to satisfy himself as to whether or not there was sufficient ground for proceeding further, and he ordered for further inquiry or investigation on that point by a police Officer, that discretion of the Court could not be assailed and on that ground the impugned order cannot be treated as vitiated. 7. In so-far as the points urged by Shri Singh are concerned, learned Counsel for Opposite Party No. 2 submitted that this complaint-petition had claimed that an offence under Sec. 166 of the I.P.C. was committed but from the complaint petition filed by the complainant and the evidence adduced on his behalf no such offence was made out, hence on that account also the dismissal of a complaint was justified. Sec. 202(i) runs as follows: Postponement of issue of process.-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 Sec. 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 Sessions, 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 Sec. 200. 8. From a perusal of this provision it will appear that the Magistrate 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. On the basis of this Shri Singh has argued that the Magistrate may either decide to inquire into the matter himself or to order an investigation to be conducted by a police officer or by some other persons but he cannot exercise both of the options available under Sec. 202 of the Code. For this Shri Singh has relied upon a decision of Karnataka High Court in the case of Nagawwa V/s. Veeranna Shivalingappa Koujalagi and Ors. 1975 Cri.L.J. 1367. In that case, six witnesses including the complainant were examined and the learned Magistrate opined, under order dated 10.10.1973 that the above set of witnesses had placed sufficient material on record to determine whether the Court should proceed further or not and also observed that the Court did not propose to examine any more witness. Thereafter, by a subsequent order dated 3.12.1973 the same Court directed inquiry and report as against two accused under Sec. 202 of the Code by the Superintendent of Police, Belgaum. His Lordship, noting the order of the Magistrate dated 10.10.1973 about sufficiency of evidence brought on record had observed that the subsequent order made suo motu was wholly unwarranted. 9. It is true that under Sec. 202 of the Code the Magistrate ordinarily is required to exercise one of the options mentioned therein, but to say that thereafter the hands of the Magistrate are tied and in any circumstance he cannot go beyond the option that he has chosen, may sometimes result in miscarriage of justice. For example, if the Magistrate while recording an order under Sec. 202 of the Code sends the complaint petition to be investigated by a police officer or by any persons and receives a cryptic report and finds it difficult to act upon such report either for summoning the accused or for dismissing the complaint, the law will not bar the Magistrate to exercise the other option as well. 10. In order dated 23.9.1995, the learned Magistrate has mentioned that the prosecution evidence was silent only about the details of case in which the alleged search was made. 10. In order dated 23.9.1995, the learned Magistrate has mentioned that the prosecution evidence was silent only about the details of case in which the alleged search was made. It appears that since the complainant had claimed that an offence under Sec. 166 of the Indian Penal Code was committed for non-observance of the provisions of Sec. 100 of the Code, the learned Magistrate thought it imperative to enquire about the facts relating to the search that was made, as complaint petition had stated that search alleged was made by the police officers. Even the witness of the complainant had stated that. For example, evidence of witness Ram Bachan Singh may be referred to. 11. Therefore, in view of the aforesaid, to hold that the hands of a Magistrate were fettered after he had exercised one option under Sec. 202 of the Code may some times result in miscarriage of justice in such exceptional cases in which a Magistrate feels that on a particular point the evidence was wanting, and then he may adopt other option. 12. The learned Counsel for the Opposite Party No. 2 has relied upon a decision of the Delhi High Court in the case of S. Nihal Singh and Ors. V/s. Arjan Das 1983 Cri.LJ 777. In the aforesaid decision his lordship of the Delhi High Court observed that the object of an enquiry of investigation under Sec. 202 of the Code was to ensure that no person was compelled to answer a criminal charge unless that Court was satisfied that there was prima facie case for proceeding and issuing a process against the accused-person and as such the Magistrate while enquiring into the cases himself with a view to decide whether or not there was sufficient ground for proceeding, need not confine himself to the evidence adduced by the complainant and that he was free to hold any kind of inquiry which he deemed fit in order to ascertain the truth/falsehood of the allegations contained in the complaint before acting either under Sec. 203 or under Sec. 204 of the Code. 13. However, having held as aforesaid, it may also be borne in my mind that in a complaint against the police officers it may not be deemed to be a proper untilisation of discretion to order for investigation and call for report from a superior police officer. 13. However, having held as aforesaid, it may also be borne in my mind that in a complaint against the police officers it may not be deemed to be a proper untilisation of discretion to order for investigation and call for report from a superior police officer. In this connection, a decision of the High Court of Gujrat in the case of Vikyamal Dakumal V/s. Prakashsing Atmasing and Ors. 1971 Cri.LJ 702, relied upon by the learned Counsel for the petitioner may be looked into which has deprecated such practice, basing the judgment on precedences. The learned Magistrate under the circumstances could have made further enquiry himself even by calling the record of the case concerned in which the alleged search was made. 14. In any case, I am in agreement with the last arguments of Shri Singh that having obtaining the report of the Dy. S.P., the learned Magistrate should not have dismissed the case merely discussing the facts as made out in that report, totally ignoring the statement of the complainant and the evidence brought by him on the record. 15. Sec. 203 of the Code provides that if the Magistrate is of the opinion that there was not sufficient ground for proceeding, he shall dismiss the complaint but for arriving at such conclusion he has to consider the statement on oath of the complainant and of the witnesses, if any, and the result of the inquiry or investigation, if any, under Sec. 202 of the Code. Therefore, before the Magistrate formed opinion that there was no sufficient ground for proceeding he was bound also to consider the statement of the complainant and the evidence of his witnesses. Not having done that the learned Magistrate has committed impropriety. Learned Counsel for opposite Party No. 2 has argued that, as already stated, no offence under Sec. 166 of the I.P.C. was made out and for that this Court should give a finding by going through the materials on record. Not having done that the learned Magistrate has committed impropriety. Learned Counsel for opposite Party No. 2 has argued that, as already stated, no offence under Sec. 166 of the I.P.C. was made out and for that this Court should give a finding by going through the materials on record. Learned Counsel for the petitioner submitted in that regard that a particular Section of I.P.C. if has been mentioned in the complaint-petition, the Magistrate is not bound to look at the material on record only with a view to find as to whether or not that offence was committed but also should consider if the facts alleged in the complaint-petition and the materials obtained in the inquiry disclosed any other offence, prima facie. 16. In view of the aforesaid findings, this Court is of the opinion that the impugned order dated 16.1.1996 cannot be sustained. 17. In the result, this application is allowed and the impugned order aforesaid is hereby set aside. The case is remanded back to the Court of the Chief Judicial Magistrate, Ara at Bhojpur for further enquiry and for hearing the parties afresh for deciding as to whether or not the accused should be summoned and thereafter to record an order on consideration of the complaint-petition, the statement of the complainant on S.A. as well the materials that have been brought on the record in course of inquiry or investigation. Application allowed.