Jayachandra Reddy, J.
1. The interesting, question which is common in the writ petition as well as in the Criminal Miscellaneous Petition, raised is whether the Collector in his capacity as the District Magistrate (Executive) can order a magisterial enquiry into the alleged torture of a person in police custody.
2. The necessary facts are as follows:- One Sankaramma filed a petition before the Collector and District Magistrate, Rangareddy District, on 28-8-1980 stating that the Sub Inspector of Police, Saroornagar, had forcibly entered her house on the midnight of 25-8-1980 and tortured her and other inmates of the house. The Collector-cum-District Magistrate by his order dated 24-9-1980 directed the Revenue Divisional Officer-cum-Sub Divisional Magistrate, Hyderabad East, to conduct a magisterial enquiry into the alleged torture by the Sub Inspector of Police and the other police personnel of Saroornagar Police Station, and submit a report within 15 days. The Andhra Pradesh Police Officers' Association, Rangareddy District, represented by its President, who is no other than the Sub inspector of Police, Saroornagar, has filed the present writ petition seeking a writ of certiorari to call for the records relating to the proceedings of the Collector-cum-District Magistrate, dated 24-9-1980 ordering magisterial enquiry into the complaint by Sankaramma and quash the same. The same Sub Inspector of Police has also filed Criminal Miscellaneous Petition No. 2709 of 1980 under Section 482 of the Code of Criminal Procedure, to quash the same order of the Collector-cum-District Magistrate.
3.The learned Counsel for the petitioner submits that under Section 190 of the Code of Criminal Procedure, 1973, the Executive Magistrates have no power to take cognizance of any offence and that power is conferred only on the Judicial Magistrates. Similarly the District Magistrate also cannot direct the Sub Divisional Magistrate to hold an enquiry under Section 202 which was also amended and that there is no other provision in the Code of Criminal Procedure for ordering a magisterial enquiry by the District Magistrate.
4.The learned Government Pleader appearing for the respondents, contends that the Police Standing Orders Nos. 55 and 56 which are still in force, conferred powers on the District Magistrate to enquire into the allegations of torture or hurt alleged to have been caused by the police,
5. It is true as contended by the learned Counsel for the petitioner under Section 190 of the new Code of Criminal Procedure, 1973 only Magistrates of the First Class and any Magistrates of the Second Class specially empowered can take cognizance of offences, whereas under Section 190 of the old Criminal Procedure Code the District Magistrates or Sub Divisional Magistrates could also take cognizance. Relying on Section 190 of the new Code of Criminal Procedure it is contended that it is only the Judicial First Class Magistrates that can take cognizance of an offence including one of torture or hurt committed by a police officer and the Judicial Magistrate alone is competent to order investigation under Section 202, Cr. P.C. and the Police Standing Orders which were issued at a time when the old Code of Criminal Procedure was in force, have no force of law after the new Code came into existence.
6. Before proceeding to examine these contentions, it is useful to refer to the relevant Police Standing Orders. Police Standing Order No. 55 provides for enquiries into the cases of death or injury caused by the police, or suffered in police custody; and Police Standing Order No. 56 lays down the procedure. Under Police Standing Order No. 56 a Sub Divisional Magistrate can conduct enquiries into the offences. Police Standing Order No. 56 is as follows:
56. The following procedure is prescribed in respect of charges against the police of torture or of causing death or grievous hurt.
(1) (a) A gazetted police officer to whom complaint of such an offence is made or who otherwise hears of the occurrence should immediately start an informal investigation into the occurrence and should also report the case at once to the Sub Divisional Magistrate. Any such investigation made is subject to the instructions in sub-order (2) below.
(b) When information of the commission of any such offence is received by a police officer below the rank of Assistant or Deputy Superintendent, he should not make any regular investigation himself but should at once report the case to the Sub Divisional Magistrate and the Superintendent of Police.
(c) Subordinate Magistrates have been instructed to report promptly to the Sub Divisional Magistrate every complaint which they may receive of the offences specified,
(d) Sub Divisional Magistrates have been instructed to forward to the District Magistrate without delay a copy of every report received from the police or a subordinate Magistrate under Clauses (a) to (c) above.
(2) An inquiry into the offences will be conducted by Sub Divisional Magistrate, There is no objection to a gazetted police officer being associated with such an inquiry. There should, however, be no parallel investigation by the police and any information gathered by a gazetted police officer should at once be reported to the Sub Divisional Magistrate.
(3) Instructions have been issued that a Sub Divisional Magistrate conducting the inquiry under sub-order (2) above should instead of making a preliminary inquiry and reporting the matter to the District Magistrate to enable the latter to take judicial cognizance of the case, observe the following procedure:
(a) If there is a formal complaint, the Sub Divisional Magistrate will take cognizance of the case himself under Section 190(1)(a) of the Code of Criminal Procedure and proceed with the inquiry after a preliminary inquiry under Section 202 of the Code of Criminal Procedure, if necessary, or dismiss the complaint under Section 203 of the Code of Criminal Procedure, if in his judgment there is no sufficient ground for proceeding with the complaint.
(b) If the Sub Divisional Magistrate is acting on the report of police officers - vide Clauses (a) and (b) of sub-order (1) above, he will at once enter upon the inquiry unless he is of the opinion that the charges do not constitute one of the offences specified above, in which case he will send an endorsement to that effect to the police officer who reported to him and leave him to proceed with the investigation, if an investigation is necessary.
(c) If the Sub Divisional Magistrate is acting merely on information under Section 190(1)(c) of the Code of Criminal Procedure, he will make a preliminary inquiry and decide whether there is a prima facie case. If there is a prima facie case, he should inform the accused that he is entitled to have the case tried by another court and, if the accused does not wish to have the case tried by another court proceed with the inquiry. If there is no prima facie case, the Sub Divisional Magistrate will drop the case.
(4) (a) The District Magistrate may, in any case, direct any First Class Magistrate in the district other than Sub Divisional Magistrate to undertake the preliminary inquiry and he may also direct any gazetted police officer to assist such Magistrate,
(b) The Magistrate holding the preliminary inquiry will not himself employ any police officer in the inquiry, but may employ any Subordinate Magistrate.
(c) The Magistrate holding the preliminary inquiry will report to the Dist-trict Magistrate from time to time the progress of the inquiry and District Magistrate will in cases falling under Clauses (3)(b) and (c) above issue instructions as to the Magistrate who should take judicial cognizance of the case if the inquiry justifies judicial proceedings being taken.
7. A perusal of these Police Standing Orders shows that there are three courses open when an offence of police torture is complained of. The Sub Divisional Magistrate under P. S. O. 56 (2) can conduct an enquiry. If there is a formal complaint he can also take cognizance of an offence under Section 190(1) of the old Code of Criminal Procedure as provided under P. S. O. 56 (3). The third course is the District Magistrate may direct any First Class Magistrate to undertake the preliminary inquiry in any such case. When under P. S. O. 56 (2) a Sub Divisional Magistrate is authorised to conduct an inquiry, the District Magistrate being his superior, can also direct him to conduct an inquiry. The present impugned order can be construed to be such a direction by him directing the Sub Divisional Magistrate to conduct an enquiry as provided under P. S. O. 56 (2).
8. The learned Counsel may be right to the extent that as provided under P. S. O. 56 (3) the Sub Divisional Magistrate can no more take cognizance and order further investigation under Section 202, Cr. P.C. since it is inconsistent with Section 190(1)(a) of the new Code of Criminal Procedure, but what we have to see is whether P. S. O. 56 (1) and (2) are in any manner inconsistent with the provisions of the new Code of Criminal Procedure, It must be mentioned here that under the Police Standing Orders the officers are invested with the powers conferred by the Cr. P.C. I. P. C, and other Central and State laws. If subsequently there is any amendment to any one of the Acts and if any part of any Police Standing Order becomes inconsistent after such amendment, to that extent only it can be said to be inoperative. In that view, P. S. O. No. 56 (3) can be inoperative as it is inconsistent with Section 190(1) of the new Code of Criminal Procedure; but the same cannot be said about P. S. Os. Nos. 56 (1) and (2). Therefore, the Police Standing Orders which as a matter of fact are being followed even now to the extent they are not inconsistent with the new Code of Criminal Procedure, should be held to be in force. Hence under P. S. O. 55 read with Clauses (1) and (2) of P. S. 0. 56, the Sub Divisional Magistrate can hold such an enquiry and there is nothing wrong in the District Magistrate, who is the higher authority, directing the Sub Divisional Magistrate to conduct such an enquiry.
9. Even assuming for arguments sake that the Police Standing Orders are no more said to be in force, still there are other provisions of law which after a combined reading would show that the District Magistrate has such power. Sub-section (4) of Section 3 of the new Code of Criminal Procedure reads thus -
Section 3(4). Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matter-
(a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.
It can, therefore, be seen that the Executive Magistrate can exercise such powers which are administrative or executive in nature and ask a Sub-Divisional Magistrate to hold an enquiry and submit a report. This is certainly an administrative act. By directing an enquiry and by receiving the report of enquiry, the District Magistrate is not straightway finding the Sub Inspector guilty of any offence.
9-A. It may be mentioned here that we are concerned with the Police Laws that are in force in the Telangana area. Section 2(1) of the Andhra Pradesh (Telangana Area) District Police Act, defines the word 'Collector' to mean 'the Chief Officer of the District in charge of the administration of a district and exercising the powers of a Collector of a District though the officer be given some other designation'. In the Andhra Pradesh (Telangana Area) General Clauses Act 'Magistrate' is defined as to include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure. It may also be useful to refer to the definition of 'Magistrate of the District' as defined in the Police Act (Act V of 1861). The definition runs thus:
The words 'Magistrate of the District' shall mean the chief officer charged with the executive administration of a district and exercising the powers of a Magistrate, by whatever designation the chief officer charged with such executive administration is styled.' Section 27 of the Andhra Pradesh (Telangana Area) District Police Act reads thus -
27. Saving of general authority of District Magistrate:- Nothing in Sections 23, 24, 25 and 26 shall affect the general authority vested in the District Magistrate with regard to matters referred to in the said sections.
Section 23 deals with regulating public assemblies and processions and granting licences relating to the same. Section 24 deals with powers in respect of assemblies and processions violating conditions of licence. Sections 25 and 26 deal with the powers of police in keeping order on public street, etc., and to impose penalties. Under these Sections 23 to 26, the police officers are conferred with certain powers in regulating public assemblies, etc. But Section 27 saves the general authority of the District Magistrate and these provisions do not affect the general authority vested in him. A combined reading of the above provisions would show that the District Magistrate is the chief executive administrator of the district and enjoys all the executive powers including those for preservation of law and order, That being so, under Section 3(4) of the new Code of Criminal Procedure he can exercise such functions which are executive in nature, like ordering an enquiry into an alleged torture by the police officer. By ordering such an enquiry, it cannot be said that cognizance has been taken under Section 190(1)(a) of the new Code of Criminal Procedure; nor investigation under Section 202, Cr. P.C. is being carried on.
10. The learned Counsel however submits that the District Magistrate has no power to order 'magisterial inquiry' which contemplates a regular judicial proceeding which can only be done by a First Class Magistrate. By merely adding the words 'magisterial inquiry' it does not mean that it is a full-fledged enquiry or a trial as contemplated under any of the provisions of the Cr. P.C. It is only an administrative act and there is no difficulty in understanding the effect of the same by the concerned parties. It cannot be said that the District Magistrate has no such power to direct his subordinate, viz., the Sub Divisional Magistrate, to enquire, which is only a fact finding enquiry. In what manner such an enquiry should be held cannot be the subject matter of investigation in this writ petition. In the impugned order it is not mentioned that the Sub Divisional Magistrate should conduct an enquiry as contemplated under Police Standing Order 56(3). It must, therefore, be understood that the enquiry directed is only by way of an administrative act and the Sub Divisional Magistrate who is an Executive Magistrate can conduct such an enquiry in the manner provided under Police Standing Order 56(2), as the impugned order does not show that a judicial enquiry has been ordered. The Sub Divisional Magistrate is also an Executive Magistrate and in that sense an enquiry by him can also be a 'magisterial enquiry,' but that does not mean it is a judicial enquiry.
11. In the result, the writ petition and the criminal miscellaneous petition are dismissed. There shall be no costs in the writ petition Advocate's fee Rs. 160/-.