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2013 DIGILAW 561 (KAR)

K. S. Ravikumar v. Basavanna

2013-04-25

B.S.Indrakala

body2013
ORDER B.S. Indrakala, J. Under Section 482 of Code of Criminal Procedure the petitioner filed the above petition seeking to revise the order dated 29.9.2012 passed by the X Addl. CMM, Bangalore in PCR No.77/12 and duly confirmed by the order dated 16.11.2012 passed in Crl.R.P.No.25079/2012 on the file of FTC-III, Bangalore. 2. The petitioner herein who is the complainant in PCR No.77/12 filed the said case under Section 200 of Cr. P.C. against the respondent herein who is a police sub-inspector, K.R. Puram Traffic Police Station, Old Madras Road, K.R. Puram, Bangalore. However, the tribunal (sic) oblivious of the fact that the respondent was a police officer, in the normal course referred the matter to the Station House Officer, K.R. Puram Police Station for conducting investigation under Section 156(3) of Cr. P.C. vide its order dated 9.7.2012. 3. Aggrieved by such reference to the Police Officer the complainant preferred Revision in Crl.R.P.No.25079/2012 on the file of FTC-III of Bangalore contending that the said order of reference under Section 156(3) is erroneous and not in accordance with law as the respondent against whom the allegations are made is a Police Officer and referring the investigation to the very same police station will prejudice his interest. Learned Judge of the FTC observing that as the learned Magistrate acted in terms of Section 156(3) of Cr. P.C. for investigation even before taking cognizance, question of learned Magistrate examining the complainant on oath and his witness before the Court would not arise, deemed it fit to dismiss the revision. 4. Being aggrieved by such dismissal of the revision petition, the complainant has preferred the above petition inter alia contending amongst other grounds that both the Courts have erred in passing the impugned orders and the Court of the first instance ought to have taken cognizance of the fact that the complainant had suffered injuries as evidenced by the wound certificate, instead referred the complaint under Section 156(3) of Cr. P.C., which is not proper and hence, is before this Court in a Criminal Petition. 5. Learned Counsel appearing for the petitioner apart from reiterating the contentions raised before the Courts below, relied upon the decision in Ramakrishna @ Babu Bangari Bilgikar Vs. M.K. Patil reported in ILR 1977 (Karnataka) 896. P.C., which is not proper and hence, is before this Court in a Criminal Petition. 5. Learned Counsel appearing for the petitioner apart from reiterating the contentions raised before the Courts below, relied upon the decision in Ramakrishna @ Babu Bangari Bilgikar Vs. M.K. Patil reported in ILR 1977 (Karnataka) 896. Criminal Procedure Code, 1898 (Act 5 of 1898) - Sections 156(3), 190, 200 and 203-Serious allegations made against police officers-Specific request made to the Court to enquire the allegations-Magistrate referring the complaint to the Superior police officers-on receipt of report dismissing the complaint-Request to substantiate case not granted-Not proper. The petitioner-complainant made serious allegations against certain police officials in his complaint and made a specific request to the Court to take cognizance and enquire into the same itself. But the trial Court referred the complaint to the Superintendent of Police and on the submission of the report relying on the decision in Burli's case, dismissed the complaint. Held- When a specific request was made to the Court to enquire the case itself the learned Magistrate should not have dealt with the case in a casual manner in ordering the investigation of the complaint by the police officers. The Trial Court failed to notice that the Superintendent of Police did not examine the remaining witness. Even the statements recorded did show that the petitioner was detained in the police station. It will be rather sad if an impression is created that man subjected to ill-treatment by police men can have no redress in Court of Law. 6. Further he submitted that already a complaint is registered against the complainant/petitioner by the very same Police Station, the Station House Officer of which station is directed to investigate the matter and in the circumstances, the complainant rightly apprehends that there will not be an unbiased investigation. 7. Per contra, the learned Government Pleader submitted that the Magistrate has not committed any error in referring the matter under Section 156(3) of Cr. 7. Per contra, the learned Government Pleader submitted that the Magistrate has not committed any error in referring the matter under Section 156(3) of Cr. PC merely because a case is already registered against the complainant in the very same police station, it cannot be said that the investigation will be tainted and it will affect the interest of the complainant to any extent as the officer, who conducts the investigation though from the very same police station, will be totally a different police officer and by the time the investigation commences, there will not be any personal conflict involved in the case. Further, he submitted that even as per the decision relied upon by the learned Counsel for the petitioner, in case, if the investigation is to end up adverse to the interest of the complainant, the complainant is always at liberty to rely upon the decisions now relied upon and seek rejection of such 'B' report and as such, the impugned order does not call for any revision in the present proceedings. 8. In view of the submissions made, the points that arise for consideration are: i) Whether the impugned orders, dated 9.7.2012 passed in PCR No. 77/2012 on the file of the X Additional Chief Metropolitan Magistrate, Bangalore which is duly confirmed in Crl. R.P. 25079/2012 on the file of the Revisional Court FTC-3, Mayo Hall, Bangalore, by its order dated 16.11.2012 are liable to be revised?; ii) What order? 9. Admittedly, the complaint is lodged against a police officer against the excess of his duty in assaulting the complainant black and blue, the accused, at the time of alleged incident, was working as Police Sub-Inspector in the very same police station to which the Magistrate has referred the case for investigation under Section 156(3) of Cr. P.C. On perusal of the copy of the order of the Magistrate, it is seen that without referring to the prayer sought by the complainant in the said private complaint seeking the Court to take cognizance of the offences committed by the accused for the offences under Sections 120B, 167 and 325 of IPC., in the casual manner after registering a case, has referred the case for investigation to the Station House Officer of K.R. Puram Police Station under Section 156(3) of Cr. P.C. Further it is seen that unmindful of the power vested with the Magistrate to exercise its discretion with regard to certain cases, the impugned order is passed. No doubt under Section 156(3) of Cr. P.C., the Magistrate is empowered to refer any complaint for investigation to the police officer, but nevertheless simultaneously, discretion is also vested to the Magistrate under Section 202 of Cr. P.C., to decide as to whether the facts and circumstances of the case warrants enquiring into the case by the Magistrate himself and as such, such a discretion ought to have been exercised by the Magistrate. 10. Admittedly, the complaint is lodged against the police officer with regard to the alleged offence said to have been committed by him. In the circumstances, the apprehension of the revision petitioner that if another police officer is directed to hold an enquiry against such act of a police officer, fair justice will not be there and there is always possibility of tainted investigation by the concerned investigating officer cannot be ignored. 11. In the circumstances further it is also not as if the Magistrate is not empowered to enquire into the matter by himself/herself and it cannot be said that the impugned order which is passed without going to the contents of the complaint is not liable to be reviewed. Thus, both the impugned orders are liable to be revised. 12. Accordingly, the above petition is allowed setting aside the impugned order, dated 9.7.2012 passed in PCR No.77/2012 passed by the X Additional Chief Metropolitan Magistrate, Bangalore directing the SRO, K.R. Purarn Police Station, Bangalore, to conduct the investigation under Section 156(3) Cr. P.C., and also the order passed by the Revisional Court FTC-3, Bangalore in Criminal Revision Petition No. 25079/2012, Mayo Hall, Bangalore. Consequently, the concerned Magistrate is hereby directed to proceed with the matter by exercising the power vested with it under Section 202 Cr. P.C. by giving opportunity to the concerned.