1. This application in revision is directed against an order passed on 10-9-1969 by Mr. B. N. Doctor, City Magistrate, 10th Court in Criminal Case No. 1368 of 1969 whereby the complaint came to be dismissed under Section 203 of the Criminal Procedure Code.
2. The opponents Nos. 1 and 2 are the Police Constable and the Police Sub-Inspector respectively and they were attached to the Shaherkotda Police Station, Ahmedabad. The petitioner-complainant has been doing cloth business in Panchkuva Sindhi Market at Ahmedabad. According to him as about 6-00 p.m. on 26-6-69 while he was having a cycle repaired at a cycle shop near Kalupur Gate, the Police Constable opponent No. 1 asked him to accompany him to the police chowkey without giving any cause. He was not then in his police uniform dress. The complainant thereupon inquired from him as to the cause for taking him to the chowkey. As a result thereof, he lost his temper and dragged him to the police chowkey by catching hold of his 'Jhabba'. Several people had collected and they requested the Constable not to behave in that manner with the complainant. His complaint further was that the P.S.I. opponent No. 2 then came up to the police chowkey where he was made to sit. Both of them then started giving foul abuses and searched his pockets without calling the panchas and removed Rs. 85/- from his pocket. He was then handcuffed and tied with a rope. In that manner, he was taken from that place to the Shaherkotda Police Station and a false case under Sections 110 and 117 of the Bombay Police Act was filed against him. Some time after he was released on bail, he had sent an application to the Police Commissioner, Ahmedabad. He also sent similar applications to various authorities and since he received no reply whatever, he filed his complaint in the Court of the City Magistrate on 21-7-1969 in respect of offences under Section 504 of the Indian Penal Code and Section 147(d) and (e) of the Bombay Police Act against both the opponents.
3. The learned Magistrate thereupon passed an order which runs thus: -
'S.P. Sherkotda to inquire and report under Section 202, Criminal Procedure Code'.
After receiving the report, the learned Magistrate heard the complainant's learned advocate and dismissed the complaint under Section 203 of the Criminal Procedure Code. Feeling dissatisfied with that order passed by Mr. B. N. Doctor, City Magistrate 10th Court, Ahmedabad, the complainant has come in revision before this Court.
4. The contention made out by Mr. Patel, the learned Advocate for the complainant, is that the order passed by the learned Magistrate directing the Superintendent of Police, Shaherkotda Police Station, to make an inquiry under Section 202 of the Criminal Procedure Code in respect of his complaint was illegal inasmuch as it discloses no reasons as required in law. He further contended that apart from the order being illegal, it was highly improper to direct the police officer attached to the same police station to make any such inquiry when the complaint was against the two police officers attached to the same police station. It was also said that the learned Magistrate has hardly applied his mind to the statements recorded by the inquiry officer and that without any proper justification his complaint had come to be dismissed under Section 203 of the Indian Penal Code.
5. Now the first two points raised by Mr. Patel find support from the decision of this very Court in the case of Ramanlal Chhaganlal Bhavsar v. P. M. Desai, in Criminal Revn. Appln. No. 289 of 1969 (Guj) the judgment whereof was delivered by this Court on 1-8-1969. In that case the accused were police officers attached to the same Shaherkotda Police Station and the Superintendent of Police was directed to inquire and report under Section 202 of the Criminal Procedure Code in respect of the complaint filed by the complainant for the offences under Sections 341 and 504 of the Indian Penal Code. That order was also made by the same learned Magistrate whose order has been questioned in this case. The wording of the order in both the cases has been exactly similar. In that case the effect of Section 202 was considered and it was held as under: -
'It was imperative for the learned City Magistrate to give some reasons which indicate application of his mind to the facts of the case in respect of which he considered inquiry necessary before issuing process against him. The order should speak as to what led him to postpone issuing process and for what reason inquiry was at all necessary to be made by some other person. Merely directing a police officer to inquire and report under Section 202 of the Criminal Procedure Code is, in my view, not enough and cannot be said to have complied with Section 202 (1) of the Code'.
In that very case, I had the occasion to consider the propriety or otherwise of the order inasmuch as the Superintendent of Police attached to the same police station was directed to make inquiry against the police officers who were the accused persons. While considering that aspect of the case, the following observations were made: -
'The Magistrate on receiving any such complaint for an offence of which he is authorised to take cognizance has therefore to think in the first place whether any inquiry or investigation is at all essential to be made in regard to the facts disclosed in the complaint. Then he should also, if he does so think and desires to postpone the issue of process for compelling the attendance of the person complained against, set down his reasons for so doing. He should then consider as to who should make inquiry, whether it should be done by himself or that it should be sent to the police officer or such other person as he thinks fit'.
Then it is observed: -
'It is true that the Superintendent of Police is a superior officer. However, he is also attached to the same Sherkotda Police Station where the opponent No. 1 accused has been serving as an Inspector of Police. The apprehension in the mind of the complainant would certainly be that when the police officer attached to the said police station were to make an inquiry in respect of his complaint, he may not remain so dispassionate towards the matter and that the complainant might as well reasonably feel that much though an independent police officer was making an inquiry, he would be (sic) towards that police officer who was attached to that very police station. It is in such circumstances that the Magistrate has to take care to apply his mind to the nature and contents of the complaint and the person against whom the complaint is made and think out as to whether he should himself conduct the inquiry before issuing any process against any such officer. The discretion has, in our view, not been properly exercised in directing an inquiry to be made by a police officer attached to the same police station where accused in working as an Inspector of Police'.
A little later, it has been observed: -
' However, when the Magistrate is given an authority and power to exercise his jurisdiction, we have no desire to fetter the same except saying that whenever any such power or authority is exercised, it should be so done keeping proper eye at the provisions of law and at the same time with a desire not only to do justice but to see that the justice is felt to have been done to the parties affected in the litigation'.
It would, thus, follow that the initial order passed under Section 202 of the Criminal Procedure Code was both illegal and improper and any such inquiry made in pursuance thereof need not be acted upon in the case. It is essential to point out that the complaints filed against such police officers are very rare. Sometimes people hardly take courage to lodge such complaints against such police officers and even a feeling may well run in their minds that they would be put to considerable harassment in the event of their raising heads against them. At the same time it is equally necessary to carefully examine the complaints against police officers to avoid putting them to any harassment by false and frivolous complaints. But whenever any police officers are sought to be prosecuted, by being required to file a private complaint before a Magistrate, the duty of the Magistrate, is, as it should be in all cases, and more particularly in such cases, to be careful and a feeling should not be allowed to be created in the minds of such persons that they would not get proper justice against such officers. In this connection reference was made to some decisions which I may briefly refer to. In Queen-Empress v. Kanappa Pillai, (1897) ILR 20 Mad 387, it was held that Magistrate can send a case for enquiry by the Police under Criminal Procedure Code, Section 202, only when for reasons stated by him he distrusts the truth of the complaint. Then it has been observed that in cases where the accused is a member of the Police Force, it is generally better that the enquiry should be prosecuted by a Magistrate. In fact the Division Bench expressed the opinion that great caution should be shown in sending, for investigation by the Police, charges against members of that force and then they said that in such cases it would generally be better that the enquiry should be prosecuted by a Magistrate. In another case of Harihar Prasad v. Emperor, AIR 1920 All 77, it was observed as under: -
'In dealing with a complaint against a police officer a Magistrate does not exercise a proper discretion in dismissing it under Section 203, Criminal Procedure Code, on the mere report of a local investigation by a superior officer of police; he should himself hear the witnesses on whom the complainant relies to establish the truth of his allegation, and give his best consideration to their statements along with the report of the local investigation'.
Another case on the same lines on the point was also referred to and that is of Mewa Lal v. Emperor, reported in AIR 1920 All 125 (1), where it was similarly observed as follows: -
'Where a complaint is made against an officer of police, it is improper to direct another police officer to conduct the investigation: the investigation should be conducted by the Magistrate receiving the complaint or by some other Magistrate'.
It would, thus, follow that the initial order passed under Section 202 of the Criminal Procedure Code directing an inquiry to be made by the police officer was illegal as pointed out hereabove. It also lacked propriety in the sense that the police officer attached to the same police station was asked to make an inquiry in respect of a complaint made against the police officer attached to the same police station. It would not be too much if this Court were to assume that the decision of this Court referred to hereabove was known to the learned Magistrate for the reason that the judgment of that case must have reached him before he had the opportunity to pass the orders in this case.
6. It was, however, pointed out by the learned Assistant Government Pleader that the earlier order was not challenged and the present application is directed against the order passed after the report has been received from the police officer who was directed to make an inquiry. The challenge is against the order passed under Section 203 of the Criminal Procedure Code and that is based on an inquiry made by police officer in pursuance of an order passed under Section 202 of the Criminal Procedure Code. Now if the order passed under Section 202 suffers both from illegality and impropriety, the report cannot be made the basis for dismissing the complaint. That inquiry is vitiated and a fresh inquiry is essential to be made. In such cases prudence requires that the Magistrate should himself make an inquiry and after considering the material before him, pass adequate orders. Even otherwise, on a perusal of the order passed by the learned Magistrate, it is difficult to think that he had seriously applied his mind to the papers of inquiry made by the police officer. The only ground which appeared to weigh with him in dismissing the complaint against the accused is that the complaint was filed so late as on 21-7-1969 whereas the incident had taken place on 26-6-1969. Now it appears clear that immediately on his being released on bail in respect of the complaint given by those police officers against him, he had sent an application to the Commissioner of Police of the City of Ahmedabad to make inquiry into the matter against them. They were subordinate to him. Naturally he would expect some inquiry to be made by that authority, and if he waited for some time before filing the complaint which he did when he received no response whatever, it would be hardly proper to say that the complaint was false on that ground of delay. In filing a criminal complaint delay is not necessarily and always fatal if properly explained, and the evidence in that regard has to be properly considered by the Court. Then the report shows that as many as six witnesses were examined by the complainant in addition to the complainant himself. While all of them support the complainant in the allegations made against the accused, without any good ground shown, the inquiry officer has stated in his report that they should be disbelieved, and that some of the police officers who came to be examined by him should be believed and the complaint should be dismissed. In such circumstances, it was the duty of the learned Magistrate to scan and consider the evidence to ascertain the truth or otherwise of the incident, for after all, his duty was to see at that stage whether the evidence was such which would justify an issue of process against the accused. The learned Magistrate was, therefore, also in error in acting upon the report without properly applying his mind, and that has resulted in miscarriage of justice requiring an interference by this Court. The order is thus liable to be set aside.
7. In the result, therefore, the order passed by the learned Magistrate dismissing the complaint under Section 203 of the Criminal Procedure Code is set aside. The case shall be sent the learned Chief City Magistrate who shall send it on to the Court other than the one presided over by Mr. Doctor. If the learned Magistrate considers necessary to postpone the process before making the inquiry, it is desirable that he shall do so himself and not act upon the report of the Superintendent of Police who made the inquiry. This will not, however, prevent him from looking into the same as he thinks proper.
8. Petition allowed.