J.D. Jain, J.
(1) This revision is against order dt. 22.12.83 of Additional C.MM. dismissing Complaint of petitioner which she had instituted against the respondents u/Ss. 452/342/397/506/4/ & 325/34 1PC. The order of dismissal has been made u/s 203, Code of Criminal Procedure ('the Code').
(2) Succinctly the facts germane to the disposal of this revision petition are that the respondents who are police officers, Satinder Singh Grewal-respondent I being Asstt Comm. of Police, L S. Sandhu-respondent 2 also being Asstt Comm. of Police, Joginder Singh respondent 3, Ram Kishan-respondent 4, Madanjit Singh-respondent 5 being Sub Inspectors of police and Ram Mehar-respondent 6 being driver, all attached to Police Station Kamla Market at the relevant time are alleged to have visited the residential premises at 56, Japan Building, G.B. Road, of the petitioner on the night between 12/13th Sep. 1979 and they allegedly assaulted and gave beating to the complainant-petitioner as well as her husband-Din Mohammad. Further respondent 5 allegedly removed a gold chain worth about Rs. 16,000.00 from the person of Din Mohammad and when he protested against the same, respondent I silenced him at the point of pistol saying that it was made of brass and not gold. Thereafter, the accused led the petitioner and her husband to Police Station and gave beating to both of them on the way as well as at the Police Station due to which the petitioner sustained grievous injuries. They were detained at the Police Station till 17.9.79 and on their release from the Police custody the petitioner approached Metropolitan Magistrate and requested for medical examination of both herself and her husband. They were accordingly medically examined in Ram Manohar Lohia Hospital, and the petitioner was kept as an indoor patient for medical treatment because a fracture had been detected. She lodged a complaint with the Commissioner of Police but finding that the local police was reluctant to take any action in the matter she instituted a complaint against respondents on 27.9.79 for their trial for the aforesaid offences.
(3) The learned Magistrate after examining the complainant-petitioner on 28.9.79 postponed the preliminary inquiry. Subsequently, he examined some more witnesses on 1.8.81 and 17.4.82 Thereafter vide order dated 12.5.82 he directed an inquiry to be held by the Deputy Comm. of Police (Crime) with the observation that as the police officers involved, inter alia, included an Asstt. Comm. of Police the inquiry be not held by a police officer below the rank of Assistant Comm. of Police. As would appear from the perusal of aforesaid order the learned Magistrate wanted to assess on receipt of report of inquiry whether the alleged acts were done by the police officers in the colour of their authority/in discharge of their duties as police officers. Accordingly an inquiry was held by Shri N.N. Tuli Asstt. Comm. of police, who submitted his report to the Magistrate in Dec., 1982. On a perusal of the said report, the learned Magistrate found that there was no sufficient evidence to proceed against any of the accused for the offence complained of. Hence, he dismissed the complaint. It may be pertinent to notice here that the learned Magistrate, inter alia, took note of the fact that neither the petitioner nor her husband-Din Mohammad came forward to support their allegations before the Inquiry Officer. He further noticed that the petitioner was already facing trial in a number of cases under Suppression of Immoral Traffic in Women and Girls Act as well as Arms Act as she was allegedly having 5/7 girls for singing and dancing and was running a brothel at her residence,
(4) The learned counsel for the petitioner has assailed the impugned order on two grounds. In the first instance, he has urged that on a perusal of Section 202 it is abundantly clear that if the Magistrate after perusing the statements of the complainant and the witnesses, if any recorded u/s 200 of the Code is not satisfied that a case for summoning the accused is made out and wishes to inquire further into the matter, he has to follow the procedure indicated in the said Section, namely, that he may 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. Howecer, he has to choose one of these alternatives and he cannot have recourse to all of them. Hence, it is submitted that where a Magistrate chooses to inquire into the case himself he cannot direct an investigation by the police. The learned Magistrate, in the instant case, having adopted both the courses open to him, the impugned order must be struck down as bad in law. Reliance in this context has been placed by him on some reported decisions of different High Courts, Viz Sankar Chandra Ghose V. Roopraj , Gunturu Kotaiah V. Radhakrishnamurty 1965 (2) Cr. L.J. 824 (2) (A.P.) and Nagawwa V. Veeranna 1975 Cr. L.J. 1367 The sum and substance of all the decisions is that a Magistrate who embarks upon a preliminary inquiry himself u/s 202 of the Code is debarred from referring the matter to an outside agency for further inquiry, in a divided bent of mind, as a half-way and hybrid measure. In the first of these cases a D.B. of Calcutta held that;
'IF a Magistrate postpones the issue of summons then two courses are open to him. He can either make an enquiry into the case himself or direct that an investigation be made. The Magistrate can direct an investigation to be made either by police officer or by such other person as he thinks fit. If he makes an enquiry himself, he cannot direct investigation. Again, when he directs an investigation he cannot enquire into the matter himself.'
(5) I am in respectful agreement with this view having regard to the plain language of S. 202(1) which expressly uses the disjunctive words 'either or' thus making it abundantly clear that the Magistrate has the option to adopt .any of the courses for satisfying himself 'whether there is sufficient ground for proceeding but he cannot take recourse to all these alternatives one after the other. In other words, he cannot employ two or more alternatives for arriving at a decision whether to proceed further or not on the complaint. Hence, the proceedure adopted in the instant case is certainly not warranted by S. 202 and the impugned order is liable to be set aside on this ground alone.
(6) The next ground of attack against the impugned order is that the complaint being against police officers, one of whom happened to be a senior officer of the rank of Assistant Commissioner of police, the learned Magistrate did not act judiciously in entrusting the inquiry to a police officer and it did not matter whether the inquiry was to be held by the Deputy Commissioner of Police himself or by an Assistant Commissioner of Police. Thus, the procedure adopted by the learned Magistrate is vitiated by grave impropriety if not illegality In support of this contention too, he has alluded to various decisions of different High Courts, viz. Harihar Prasad v. Emperor : AIR1920All77 , Mst. Shama v. Ehaz Ahmad : AIR1920All91 , Mewa Lal v. Emperor Air 1920 All. 125 (1), Jaginder Singh v. Agha Safdar Ali Khan Air 1928 Lah 88. Roman Lal v. P.M. Desai (1970) 11 Guj LR. 1967 and Sarat Chandra v. Aghore Nath (1899) 4 Cal. W.N. 221. The gist of'all these decisions is that where a complaint is made against an officer of police the Magistrate should himself conduct the preliminary inquiry and not refer the matter for investigation to a police officer even though such officer happens to be a superior officer of the police. The rationale behind this view is quite apparent. It is that apprehension in the mind of the complainant would certainly be that when a police officer were to make an inquiry in respect of his complaint, he i.e. the inquiry officer, may not remain so dispassionate towards the matter and may not be able to bring a detached mind to bear upon the inquiry. Thus, to remove any misapprehension on the part of the complainant with regard to impartiality and disinterestedness of the forum of inquiry it was imperative in a case like the present not to refer the complaint for inquiry to another police officer. Looked at the matter from this angle too, the procedure adopted by the learned Magistrate cannot be said to be just and fair.