R.K. Das, J.
1. Two private complaints (Nos. Clause 3 and 4 of 1966) were filed under Sections 830 and 331, Indian Penal Code, against the A.S.I. and two constables of Larimore outpost under the police station, Deogarh on 28.1.66 and 2.2.66, respectively in the Court of the Sub-divisional Magistrate, Deogarh, District Sambalpur. The said Magistrate examined both the complainant as required under Section 200, Criminal P.C. and posted both the cases to 28.2.66 for an enquiry to be made by him under Section 202, Criminal P.C. (hereinafter referred to as the 'Code').
2. In the meanwhile a petition was filed by the Court Sub-Inspector saying that the enquiry under Section 202, Criminal P.C. relating to such misconduct against a police officer has, under the scheme of the separation of Judiciary from the Executive, to be conducted by an executive Magistrate. He referred to the Executive in striation issued at the time of separation of the Judiciary from the Executive for the guidance of the Magistrate and the police. He also drew the attention of the Court to letter No. 4742 dated 21.9.61 (General letters - Criminal) issued by the High Court. He accordingly requested the Magistrate to send the complaint petition to the 8ub.divisional Officer, Deogarh, who is an executive Magistrate for making the aforesaid judicial enquiry.
3. The learned Sub-divisional Magistrate took the stand that under the provisions of Section 202 Criminal P.C. he wag quite competent to make the enquiry and it wag not obligatory on his part to send the complaint to any executive Magistrate. He also painted out certain difficulties in obtaining the services of an executive Magistrate., However, in view of the fact that his jurisdiction to make the enquiry under Section 202, Criminal P.C. was challenged lie thought that the point should be clarified by this Court and has accordingly made a reference to this Court under Section 482 of the Code on the following points:
(i) Whether the judicial Magistrate before whom any complaint is filed against a police officer alleging some serious offences under the Indian Penal Code, should invariably send the same to an executive Magistrate for an enquiry under Section 202, Criminal P.C.; (ii) whether a judicial Magistrate has no jurisdiction to hold such an enquiry after the scheme of separation of judiciary from executive was introduced in the district. Though the two questions may not come strictly within the ambit of Section 432, I shall proceed to answer the questions as they involve a question of jurisdiction of a Magistrate arising out of the exhume of separation of the judiciary from the executive. I shall first proceed to examine the general powers of a Magistrate while exercising jurisdiction under the provisions of the Code.
4. Section 190(1) of the Code prescribes, three modes for taking cognizance of offence by the Magistrate. They are:
(a) Upon receiving a complaint of facts which constitute the offence;
(b) upon a report in writing of such facts made by any police officer; and
(c) upon information received from any person other than a police-officer or upon his own knowledge or suspicion, that such an offence has, been committed.
5. In the present case obviously the cognizance was to be taken under (a) above, as it was based upon some complaints. Under Section 200 of the Code, a Magistrate taking cognizance of an complaint, shall at once examine the complainant, and the witnesses present if any upon oath and substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. There are several courses open to the Magistrate before whom a complaint is made. He may straightway dismiss the complaint under Section 203, Criminal P.C. or he may under Section 204 direct issue of process against the accused or he may postpone the issue of the process against the accused and to ascertain the truth or falsity of the complaint, make an enquiry as contemplated under Section 202 of the Code. Section 202 runs as follows:
Any Magistrate, on receipt of a complaint of an offense of which he is authorized to take cognizance, or which has been transferred to him under Section 192 may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him or by a police officer or by such other person as he thinks fit, for the purpose of ascertaining the ruth or falsehood of the complaint.
(2A) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.
6. The object of the enquiry is obviously to satisfy the Magistrate about the truth or falsity of the allegation made against the accused before he issues process under Section 204. The Magistrate is not bound to make an enquiry. The provision is only an enabling one. Under the express provision of Section 202, it is open to the Magistrate himself to conduct the enquiry or he may entrust the same to such other persons as is provided under Section 202. The question is whether the express power conferred upon a Magistrate has been taken away by the executive instructions issued on the separation of judiciary from the executive.
7. The scheme of separation was first introduced in some districts like Cuttack, Puri and Balasore on the 1st May 1960, and on the 1st May 1961, in the Districts of Sambalpur, Dhenkanal and Mayurbhanj. On 25th October 1961 it was introduced in the districts of Ganjam, Sundargarh and Keonjhar, on 1st May 1967 in the Districts of Bolangir and Kalahandi and on 1st June 1967 in the District of Koraput. At the time of separation in 1960, some executive in striations were issued for the guidance of the Magistrate and the police and the Magistrates were broadly classified as Judicial and Executive Magistrates as appears from the said executive instructions. It was then decided that the scheme shall be brought about without amending the Criminal Procedure Code. Thus, no amendment of Sections 190 and 202 of the Code was brought about by the State of Orissa.
Under the allocation of powers between the judicial and executive Magistrates, the power to take cognizance on private complaints under Section 190(1)(a) vested both in the executive and judicial Magistrates. Allocation was made in respect of functions exercisable under the Criminal P.C. as also under authorized manuals, such as the Police Manual. In Schedule II, annexed to the said instructions, the allocation of functions in respect of the rules in the police manual, 1940, Vol. I has been described. With regard to some of the rules, concurrent jurisdiction has been conferred on both the categories of Magistrates. The procedure to be followed in an enquiry into serious misconducts on the part of police officers has been dealt with in Rule 50(a) of the said Manual which contemplates three classes of such misconduct:
A. The allegation is contained in a complaint made before a Magistrate under Chap. XVI, Criminal P.C.
B. The allegation is contained in an information lodged before a police officer under Chap. XIV, Criminal P.C.
C. The misdemeanor has been brought to light otherwise as for instance in the judgment of a Court, or on the knowledge or suspicion of a superior officer.
In the executive instructions referred to above, the relevant entry relating to A and B has been made in Schedule II thereof which is as follows:Chap- Sub- Judi- Execu- Conour- Remarks.ter. ject. Cial tive rentMagic- Magic- jurisdi-trate. trate. ction.IV Enquiry . . 50(A) As in theinto 50(B) case of anyserious other in-mis- vestigationconduct but ismade clearthat theenquirycontempla-ted herewill be byexecutive.
Thus, it has been mentioned in the remarks column that 'but is made clear that the enquiry contemplated here will be by executive'. It is on the basis of the entry in the remarks column it was contended that this present case being based on a complaint under Section 190(1)(a) of the Coda about serious misconduct of a Police Officer, the enquiry under Section 202 should exclusively be made by the executive Magistrate and the Judicial Magistrate baa no jurisdiction to make such enquiry.
8. At this stage, it may be relevant to refer to the procedure laid down in Rule 50(a) quoted above in respect of enquiries contemplated under Class A as it relates to cases arising out of a complaint as in the present case.
CASES FALLING UNDEE CLASS 'A'
(b) In the case of an allegation made in a complaint, the decision as to whether there should be a preliminary enquiry under Section 202, Criminal P.C., must rest with the Magistrate who takes cognizance. Bat Government direct that wherever possible the following procedure should be followed:
When a complaint is laid against a polios officer, charging him with having committed a cognizable offence or having demanded or accepted a bribe, the Magistrate must regulate his proceedings by the provisions of the Criminal P.C. It is for him to form his own judgment whether or not there is sufficient ground for proceeding and consequently whether it is incumbent on him to issue process to compel the attendance of the accused under Section 204, Criminal P.C. or to dismiss the complaint under S3ection 203. It is competent for him however, before coming to any such decision, to take preliminary action under Section 202, and be may also without forming any opinion, transfer the complaint under Section 192 to Another specified magistrate who is competent to try the accu3ed or to commit him for trial, The following points of procedure are important.
(i) If the magistrate receiving the complaint transfers it to another magistrate, he baa no concern with the case unless it is retrain erred to his file in due process of law. It is for the magistrate to whom the case is transferred to form his own opinion whether process should be issued under Section 201 or whether action should be taken under Section 202 or whether the complaint should be dismissed under Section 203, Criminal P.C. a section which requires the reasons for so doing to be stated.
(ii) Issue of process can only be postponed, whether by the magistrate was receives a com. plaint or by a magistrate to whom it is transferred, after examination of the complaint (except in the rare event of the complaint bier made by a court), for reasons to be recorded definitely in writing. Thereafter the magistrate may either enquire into the cause himself or direct an enquiry or investigation to be made by any magistrate subordinate to him or by a police officer. The accused officer cannot be required to appear in such enquiries, nor should be invited to take any part in the proceedings. An enquiry under Section 202, 'Criminal P.C. is not intended to be a full-dress rehearsal of the trial but is held in order that the magistrate may satisfy himself whether there is, or is not, a prim a facie case, which the accused should be called upon to answer.
(iii) The magistrate who receives the complaint, on receipt of the report of enquiry or investigation, may, if he considers it necessary direct after recording his reasons, that a further investigation should be made by a police officer. The provisions of the police manual so make it absolutely clear that in case of an allegation made in a complaint against a police officer, the decision as to whether there should be a preliminary enquiry under Section 202, Criminal P.C. rests with the magistrate who takes cognizance and it is open to the magistrate to enquire into the case himself or direct an enquiry to be made by any magistrate subordinate to him. It is only in the Executive Instructions, it was stated that such enquiries should be made by an executive magistrate as appears from the note in the re. marks column.
It was also pointed out on behalf of the police authorities that in a letter from the Registrar of this Court (No. 4742(2).xxix-40/60 dated 29.9.61) a direction was given that all the judicial magistrates while making enquiry into complaints filed against police officers under the scheme of separation of judiciary from the Executive, should beaker to hold enquiry against the police officers where competent Executive Magistrates are not available for the purpose. On the basis of this letter it was urged that all enquiries under Section 202 must necessarily be by the Executive Magistrate and not by the Judicial Magistrate. In the very letter, however, it is also made clear that the Court taking cognizance of a complaint petition, is not fettered by the instructions issued under the police manual though in ordinary practice those instructions are to be followed in the interest of administration, so that a public servant may not be subjected to harassment of a regular trial without a preliminary enquiry.
An enquiry contemplated under Section 202, Criminal P.C., is a judicial proceeding and at the stage of enquiry it may be necessary to take evidence and such evidence has to be tested to and oat the truth or falsity of the allegations made by the complainant. In para 20(3) of the said Instructions, it is made clear that where a question of appreciation or shifting of evidence is involved which has the effect of sending up an individual for trial before any Court, that can be done only by the Judicial Magistrate. Both the language and the spirit of the Instructions make it clear that in an enquiry under Section 202 where a shifting or appreciation of evidence is involved, is has to be done by the judicial magistrate. Thus, neither Executive Instructions nor the letter of this Court debars the judicial Magistrate from making any enquiry under Section 202 even as against a police officer;
9. The matter may be examined from another standpoint. Under the provisions of Section 202, Criminal P.C. the sub-divisional Magistrate can direct an enquiry to be made by a Magistrate Subordinate to him. The Sub-divisional Officer or any executive Magistrate cannot be said to be subordinate to the judicial Magistrate. It has bean made clear in Part III of the Executive Instructions that 'although under the Criminal P.C. all the Magistrates in a subdivision are deemed to be subordinate to the Sub-divisional Magistrate, the Sub-divisional Magistrate (Judicial) will not exercise any control over the Executive Magistrates in a sub-division except to the extent indicated against several items in the schedule for the allocation of power' There is, however, no such indication in the Schedule. (Thus, an executive Magistrate, under the Executive Instructions, cannot be said to be a sub-ordinate to the Sub-divisional Magistrate (Judicial) for the purpose of Section 202 of the Code.
10. No doubt, it is open to the Magistrate directing an enquiry under Section 202 to send such enquiry to any person as he thinks fit; and he may direct the enquiry to be made by an executive Magistrate, even though the latter is not subordinate to him. This, after all is a matter left to the discretion of the Magistrate who directs the enquiry to be made and it is for him to decide who, in his opinion, is the proper person to conduct such as enquiry. He may as well as choose an executive Magistrate for the purpose. There is, however, no particular reason why a discrimination should be made regarding the procedure to be followed in a case where the complaint is made against a police officer, and the enquiry contemplated under Section 202 is to be made only by an executive Magistrate. There is no juristic principle or policy in the Executive Instructions if it is understood as laying down that all complaints against police officers must inevitably be enquired into only by executive Magistrates. As already said, the Magistrate taking cognizance, is not bound in law, to send a complaint for enquiry under Section 202, as has been held by the Supreme Court in the decision reported in : 3SCR203 , Kanjit Singh v. State of Pepsu.
11. Assuming, however, the enquiry under Section 202, is to be conducted by an executive Magistrate or by such other person who is entrusted with the same, such executive Magistrate or person cannot finally dispose of the complaint under Section 203 or 204 of the Code. All that he has to do is to make an enquiry and submit his report to the Magistrate who took cognizance of the case and it is the latter Magistrate who alone is competent to decide whether to issue process under Section 204 or to dismiss the complaint under Section 203. Thus, a mere enquiry by an executive Magistrate is of no legal consequence.
12. No doubt under the Executive Instructions power of taking cognizance of a private complaint is vested both in the Judicial and Executive Magistrates, but it has also been made clear that the Executive Magistrates will not ordinarily exercise the power except when the com. plaint is made before them while they are on tour or the Judicial Magistrate competent to take cognizance is not available. Thus, the policy behind the Executive Instructions is that ordinarily it is the Judicial Magistrates who are to take cognizance of private complaints. There is nothing in the Executive Instructions to show that the Judicial Magistrate will be debarred from exercising their jurisdiction to take cognizance in respect of private complaints when made against a police officer. On the other hand when cognizance is taken by an Executive Magistrate of a private complaint under Section 190(1)(A), the Additional District Magistrate (Judicial) will withdraw the case under Section 588(2), Criminal P.C., and make it over to a Judicial Magistrate for trial. (See Schedule I, Serial No. 182 of the Executive Instructions).
13. What is meant by the expression 'taking cognizance of an offence' has not been defined in the Code. Whether Magistrate had taken cognizance of an offence depends upon the facts and circumstances of each case. Taking cognizance does cot involve any formal action or indeed action of any kind. It takes place as soon as the Magistrate applies his mind to the suspected commission of the offence: See AIR 1988 SC 765 at p. 766, Ajit Kumar v. State of West Bengal. It is clear from the facts of this case that the: Magistrate while taking cognizance of the case-proceeded to take action in the manner laid down in Chapter XVI of the Code, and directed an enquiry to be made. No doubt, under Section 192, Criminal P.C. it is open to the Sub-divisional Magistrate to transfer any casa of which he has taken cognizance for enquiry or trial to any Magistrate subordinate to him.
Here again, the question as to whether an executive magistrate is subordinate to the Sub-divisional Magistrate (Judicial) comes in for consideration. As I have already indicated, with, in the framework of the Scheme, the executive magistrate is not contemplated to be subordinate' to the Sub-divisional Magistrate (Judicial) within the meaning of the Code. The executive Instructions also make it clear that in matters relating to part IV of the Criminal P.C. that is, preventive offences, the transfer of the cases under Section 192 will be made by the District Magistrate (Executive) and the Executive Magistrates specially empowered for the purpose.
In respect of other oases, it is laid down that the transfers under Section 192 will be ordered by the Additional District Magistrate. (Judicial) or the Sub-divisional Magistrate. Thus, the power to transfer cases only in respect of preventive offences has been retained with, the Executive Magistrate while in respect of all other cases, the power has been vested in the Judicial Magistrate. This aspect of the question though relevant for the purposes of examining respective jurisdiction of the two categories of Magistrates, has no direct bearing on the deviation of the present case as no transfer order under Section 192 has been made in this case.
14. The Executive Instructions which said that the enquiry contemplated under Rule 50(a) A has to be done by an executive Magistrate, cannot also override the express provisions of law as has been observed by the Supreme Court in a case reported in : 3SCR936 . Manalal v. State of Assim. In a case reported in ILR 1932 Cut 386, Kasbinath v. Achutananda Dash, it was bell that the Executive instructions can. not have the effect of amending the provisions of the Criminal Procedure Code and so long the Magistrate functions under the Code. his order cannot be held to be illegal. That was also the view taken by this Court in the case reported in : AIR1965Ori135 , Ratnakar v. Arhit.
True it is that when an enquiry is directed against a public officer, the enquiry should be handled with the greatest care to see that he may not be subjected to any false or vexatious proceeding, but that will not mean that the enquiry will take the place of a trial and the officer as of right wilt take part in the proceedings as in a trial. He, may however, remain present at the enquiry in person or through counsel or agent with a view to be informed of what is going on. Of course, the Magistrate is free to put such questions to the witnesses as he thinks proper in the interest of juice as held by the Supreme Court in the ease reported in : 1SCR639 Chandra Dao v. Prokash Chandra. This decision was followed by this Court in the case reported in : AIR1966Ori64 . Harekrushna v. Adikando Behera.
15. In view of this legal position, it must be held that,
(i) The Magistrate is not bound to send the complaint for an enquiry to be made by an Executive Magistrate; and
(ii) That the Judicial Magistrate has full jurisdiction to hold such enquiry himself.
In the result, the Reference is accepted and answered as above.