N.G. Shelat, J.
1. The applicant filed a criminal case No. 1264 of 1969 in the Court of the City Magistrate, Ahmedabad, on 8-7-69 against Mr. P.M. Desai, Inspector of Police, Sherkotda Police Station, Ahmedabad, in respect of offences punishable under Sections 341 and 504 of the Indian Penal Code. The allegations against him are that on 1-7-69 the applicant and some others were arrested by the Gomtipur police in respect of offences punishable under Sections 4 and 5 of the Prevention of Gambling Act and then taken duly hundcuffed at the Sherkotda Police Station. On that night at about 11-15 p. m. one Pravinkumar Manilal and the applicant's brother accompanied by one advocate, had gone to the Sherkotda Police Station for getting him released on bail. Mr. Pravinkumar, who wanted to stand surety for the applicant who was accused in the case, requested Mr. Desai, the Inspector of Police, that he may be released on bail as the offence was a bailable one. The case of the complainant then is that Mr. Desai got enraged and told the surety that he would not be released on bail and that he may go to Court and have him released on bail. He had at that time spoken foul abuses. He was, thus, given threat and driven out of the police station. On the next day, the applicant was produced before the Court and he came to be released on bail. Thereafter on 8-7-69 he filed this complaint directly in the Court against Mr. Desai in respect of offences under Section 341 inasmuch as he had come to be detained in custody and for giving foul abuses punishable under Section 504 of the Indian Penal Code. In that complaint he also made a request that since the complaint was against a police officer, he believes that he would not get justice if his complaint was sent to the police for making inquiry in respect thereof. On that complaint, the learned Magistrate has passed the following order:
S.P. attached to the Sherkotda Police Station to inquire and report u/s. 202, Criminal Procedure Code.
Feeling dissatisfied with order passed on 8-7-69 by Mr. B.N. Doctor, City Magistrate, 10th Court, Ahmedabad, the complainant has come in revision before this Court.
2. The contention made out by Mr. Thakore, the learned advocate for the applicant, was that a complaint of this character against an important police officer attached to such police station, and which was extremely simple in character, should ordinarily have been inquired by the learned Magistrate himself and, at any rate, the discretion exercised by him in sending it to the officer such as Superintendent of Police attached to the same Sherkotda Police Station for making inquiry under Section 202 of the Criminal Procedure Code would hardly create confidence in the mind of the complainant and may as well turn out to be of a biased character. He also pointed out that if the complainant was examined as required under Section 200 of the Code, the simple character of the complaint would have been apparent, and the learned Magistrate may not have considered necessary to send the complaint for inquiry to an officer attached to the same Police Station. He also urged that the order discloses no reasons for postponing to issue process against the accused, and that the order, therefore, cannot be called valid, inasmuch as it does not comply with Section 202(1) of the Code. Now whenever a Magistrate takes cognizance of an offence on a complaint, as contemplated under Section 200 of the Criminal Procedure Code, he shall at once examine the complainant and witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate subject to certain provisos set out there below. But Proviso (b) to that section is relevant for our purpose. It runs thus:
Where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing need not be reduced to writing;
It follows therefrom that where there is a Presidency Magistrate, and here in the city of Ahmedabad, a City Magistrate, such examination of the complainant need not be reduced to writing as the complaint is made in writing and giving of oath to the complainant is discretionary. When the learned Magistrate has stated 'verifide', it can be taken as due compliance of Section 200 of the Criminal Procedure Code. If he had, however, examined him before passing an order for making inquiry, under Section 200. of the Criminal Procedure Code, he could have perhaps realised the simple character of the complaint and about the same being against a responsible officer of a particular police station. Then comes Section 202 of the Code and Sub-section (1) thereof runs thus:
202.(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised 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 truth or falsehood of the complaint:
On a plain reading of this provision, it appears clear that the Magistrate is given discretion of postponing the issue of process against the person | complained against if he so thought fit, but in that event, he has to record his reasons in writing. This postponement of issuing process would arise, if he thought it necessary to inquire before doing so. That inquiry can be done by himself or by a police officer or by some other person thought fit, for ascertaining the truth or falsehood of the complaint. The order passed by him does not disclose any reasons whatever by the learned Magistrate. 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 be 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. This order cannot, therefore, be called valid and requires to be set aside on that ground;
4. While passing any such order directing an inquiry to be made for the purpose of ascertaining the truth or falsehood of the complaint, the Magistrate has to apply his mind and consider as to how the discretion and power given under this provision should be exercised having regard to the facts and circumstances disclosed in the complaint. 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. Now the complaint is one against the head of the police station such as the Inspector of Police attached to the Sherkotda Police Station. Apart from the accused being shown as such, a specific request has been made by the complainant in his complaint that he would not get justice if his complaint were to be sent for inquiry to the police officer since it is a complaint against the officer of the police station. The nature of the compaint was also not of a complicated nature and it appears to be of a very simple character. The simple allegation was that he was detained when in law he was bound to release him on bail when that was offered to him on his behalf. Considering these facts and with a view to create confidence in the mind of the litigating public, one would certainly expect the learned Magistrate to exercise his discretion in a judicious manner in such a matter and more particularly when such an inquiry can well be made by himself, and if that was not possible, he could have done better if the investigation was directed to be made by some higher officer attached to a different police station in the City. 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 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 whon 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 is working as an Inspector of Police. In the present case, we feel inclined to think that it would have done well if the inquiry was done by the learned Magistrate himself if he thought it proper not to issue process against the accused before an inquiry was held in respect of the complaint. 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 a 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.
Since the order does not comply with the requirement contained in Section 202(1) inasmuch as he has given no reasons in writing for postponing the issue of process and directing an inquiry to be made by the police officer, we set aside the same and send the matter back to the learned Magistrate to proceed in accordance with law keeping in mind the observations made hereabove.