1. This Rule was issued on 15th August 1932 and calls on the District Magistrate of Midnapore and the opposite parties to show cause why the order of the Additional District Magistrate dated 13th June 1932, dismissing the petitioner's complaint under Section 203, Criminal P.C., should not be set aside. The opposite parties are described as:
Rehat Bux Choudhury, Sub-Inspector of Police, and Sheikh Kalu,. Police Constable, and two other Police Constables of Midnapore Thana.
2. On 30th April 1932 Mr. Douglas, the District Magistrate was assassinated at Midnapore. At about 11 p.m. that night the petitioner who describes himself as a 'home internee' was arrested and taken to the Midnapore Thana. It is admitted that he was then to all appearance in good health. He was produced before a Deputy Magistrate on 1st May, and on 2nd May remanded by the Additional District Magistrate to police custody until 5th May. Later in the evening of 3rd May the Civil. Surgeon, Captain Drummond, was summoned to the thana to attend the petitioner. He found the petitioner in a hysterical condition and exhausted. There were also some bruises visible on his person. They were not severe nor did they require treatment, but according to Captain Drummond they must have been due to some sort of violence. The petitioner on that occasion made no complaint against the police. The next morning, 4th May, Captain Drummond saw the petitioner again and found him suffering from fever. At 6 p.m. the petitioner was removed to hospital where he developed pneumonia. He was discharged from hospital on 21st May 1932. On that day he filed a written petition of complaint in Bengali and was examined in support of it on solemn affirmation. He stated that he was severely beaten at the thana on the evening of 3rd May by 'one Daroga known as Choudhury Saheb and three Sepahis.' The Additional District Magistrate referred the complaint under Section 202, Criminal P.C., to the Sub-divisional Officer for inquiry and report. For reasons that are not material the inquiry was eventually held by Mr. Islam, Deputy Magistrate, who submitted his report on 27th May. On 13th June the Additional District Magistrate dismissed the petitioner's complaint under Section 203, Criminal P.C. On 25th June 1932 the Sessions Judge of Midnapore refused to interfere with the order of dismissal.
3. The first ground on which the Rule has been issued is that the Deputy Magistrate acted illegally in examining the first accused and the police witnesses in the absence of the petitioner and his lawyers and in calling for a report from the Superintendent of Police. Mr. Islam's report shows that on 25th May he examined Bhupendra Nath Banerjee, the officer in charge of the Midnapore Police Station, Rehat Bux Choudhury, the Sub-Inspector of Police, Narayangarh, and Kiran Charan Raha, Circle Inspector. It is said that Rahat Bux Choudhury was examined on solemn affirmation but this is denied, I think rightly, by the opposite parties. The story told by those deponents was that Rahat Bux Choudhury was in Midnapore by chance on 3rd May. Bhupendra Nath Banerjee asked him to assist in the investigation into the murder of Mr. Douglas by examining the petitioner. Rahat Bux Choudhury consented, but while he was questioning the petitioner the latter became violent and hysterical and assaulted Rahat Bux, who called to the constables to secure the petitioner. This was done but the petitioner's struggles were so violent that he sustained injuries. Ice was sent for, and the Circle Inspector communicated with the Superintendent of Police, Mr. Evans, who saw the petitioner in the company of the Civil Surgeon. The procedure adopted by the Magistrate has been vigorously criticized by learned Counsel for the petitioner. We have been referred to Baidya Nath Singh v. Muspratt (1887) 14 Cal 141, Bhim Lal Sah v. Emperor (1913) 40 Cal 444, Balai Lal Mukherjee v. Pasupati Chatterjee (1917) 17 Cr LJ 396 and Chandi Charan Mitra v. Manindra Chandra Roy AIR 1923 Cal 198. It is suggested that a Magistrate to whom a complaint is referred for inquiry acts illegally if he examines or questions the person complained against. I cannot agree with this; no such limitation is suggested in the language of the section and I see no reason to dissent from the view expressed in In re Virbhan Bhagaji AIR 1928 Bom 290 that such a procedure is not illegal. It appears to me that to prevent the Magistrate from questioning the person complained against, at any rate for the purpose of ascertaining what is the answer to the charge, if ha has one, would be in many cases to render the inquiry futile. It is easy to imagine cases where information that the accused alone can furnish will conclusively prove the falsity of the complaint.
4. But to hold this is not to hold that it is right for a Magistrate to examine the accused and then after argument to make up his mind which of two rival stories he will accept. I consider that although the Magistrate was justified in examining the three police witnesses including the first accused, he was wrong in permitting the accused to be represented by lawyers and to argue that the complaint should be dismissed. This seems to me to be precisely the course that has been condemned in Bhim Lal Sha v. Emperor (1913) 40 Cal 444, Balai Lal v. Pasupati Chatterjee (1917) 17 Cr LJ 396 and Chandi Charan v. Manindra Chandra AIR 1923 Cal 198. In my opinion the petitioner may justly urge that he is entitled to test the evidence of the two police witnesses, other than the first accused, by cross examination, and this he can only do satisfactorily in a formal trial.
5. The Additional District Magistrate states in his order that he leaves out of his consideration the evidence of the three witnesses to whom I have referred. He however, as appears from the order sheet, permitted a lawyer to address arguments to him on the accused's behalf. The Additional District Magistrate states that the case depends on the uncorroborated statement of the complainant himself. This is true if by that is meant that the complainant is not in a position to produce any eyewitness in support of his story. But the case is one in which from its nature the production of an eyewitness is not to be expected. The failure of the petitioner to name his assailants at an early stage seems significant to the Magistrate. In my opinion little importance should be attached to this, for it is admitted that it was on the orders of the first accused that the constables forcibly restrained the petitioner. Moreover I do not understand that it is denied that Sheikh Kalu was one of those constables. In the proceedings strong comment is very properly made on the fact that neither on 3rd May nor 4th May did the petitioner complain of maltreatment to the Superintendent of Police or to the Civil Surgeon. This is an aspect of the matter that demands the most careful consideration, but in my judgment the petitioner should be given an opportunity of meeting this point and he will have such an opportunity if cross examined in Court. I do not consider that without any explanation on his part his conduct in this respect so clearly demonstrates the falsity of his complaint that he should be refused process. For the reasons I have given I hold that the order of dismissal complained against should be set aside and a further inquiry directed into the petitioner's complaint.
6. The Rule is made absolute. It is desirable that the inquiry should be held by some Magistrate who has not yet been concerned with the ease.
6. I agree.