2002 ALL MR (Cri) 699
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.K. BATTA, J.

Bismilla Shah S/O Of Bhurru Shah Vs. State Of Maharashtra & Anr.

Cri. App. No.1262 of 2001

18th October, 2001


Respondent Counsel: Shri. D.B.YENGAL

Criminal P.C. (1973), Ss.202, 204 - Complaint against Police Station Officer - Sending matter for investigation to the same police station - Not proper.

When a complaint is made against the Police Officer, it should not normally be sent for investigation to the police and of course it should never be sent to the Police Station where the Police Officer concerned against whom complaint has been filed is working. The magistrate should have himself conducted further enquiry under S.202. The order of magistrate directing police to investigate into the complaint is liable to be quashed. [Para 2,19]

Cases Cited:
Haladhar Bhumij Vs. Sub Inspector of Police, 1905 (Vol.2) Cri.L.J. 51 [Para 5]
Ramakrishna Vs. M.K.Patil & ors., 1978 Cri.L.J. NOC 45 [Para 6]
Ramachandra Venkatrama Gowda Vs. S.M.Bandiwad & ors., 1982 Cri.L.J. NOC 41 [Para 7]
Baidya Nath Singh Vs. Muspratt & ors., I.L.R. (Vol.XIV) 1887 Calcutta Series, 141 [Para 9]
Mt. Mahadei Vs. Ram Sahai & ors., AIR 1919 Oudh 395 [Para 10]
Queen - Empress Vs. Kanappa Pillai, 1897(20) Madras 387 [Para 10]
Harihar Prasad Vs. Emperor, AIR 1920 Allahabad 77 [Para 11]
Mt. Shama & anr. Vs. Ejaz Ahmad & ors., AIR 1920 Allahabad 91 [Para 12]
Mewa Lal Vs. Emperor, AIR 1920 Allahabad 125(1) [Para 13]
Harnarain Halwai Vs. Kariman Ahir, AIR 1920 Patna 655 [Para 14]
Jagindar Singh Vs. Agha Safdar Ali Khan, AIR 1928 Lahore 88 [Para 15]
Mahllomal Dansingh Vs. Gianchand Salamatrai., AIR 1933 Sind 339 [Para 16]
Vikyamal Dakumal Vs. Prakashsing Atmasing., AIR 1971 Gujarat 128 [Para 17]
Ramakrishna @ Babu Bangari Bilgikar Vs. M.K.Patil & two others, AIR 1977 (Vol.21) Madras Law Journal Reports (Criminal) 302 [Para 18]


JUDGMENT

JUDGMENT :- Heard learned Additional Public Prosecutor. Admit. With the consent of learned A.P.P., heard forthwith.

2. The applicant has approached this Court on account of order dated 10.7.2001 passed by the J.M.F.C., Ashti, whereby criminal complaint No.245 of 2001 filed by the applicant under Sections 294 and 506 of I.P.C. against Police Station Officer, Police Station, Ashti was sent for investigation to P.S.I., Police station, Arvi. In this complaint, there were allegations against Police Station officer, Police Station, Ashti, who happens to be Police Inspector Shri Latif Najir Tadvi. When a complaint is made against the Police Officer, it should not normally be sent for investigation to the police and of course it should never be sent to the Police Station where the Police Officer concerned against whom complaint has been filed is working. The Magistrate in total disregard of the basic principles of criminal law ordered the complaint to be investigated by the Police Station Officer, Police Station, Ashti against Police Inspector Shri Latif Najir Tadvi who was in fact the Police Station Officer of the said Police Station and the complaint was made against him by the applicant.

3. Learned A.P.P. could not justify this action of the Magistrate, but he submitted that the investigation in the matter was done by Head Constable Shri. Manohar Misal who is working under Shri. Latif Najir Tadvi.

4. Though it is not necessary to quote any rulings on the issue, yet some rulings have been placed before me by learned A.P.P., who was specifically asked by me to look into the matter.

5. In Haladhar Bhumji v. Sub Inspector of Police (reported in 1905 (Vol.2) Cri.L.J. Reports, 51), a complaint had been lodged before the Deputy Magistrate against the Sub Inspector of Police. The Deputy Magistrate, after recording petitioner's/ Complainant's statement put up case before the Deputy Commissioner for orders. The Deputy Commissioner of Police dismissed the complaint which was challenged before the High Court. In this case, it was observed that when there are charges laid against a Sub Inspector, the enquiry into truth of these charges should have been conducted by the Deputy Magistrate than the District Superintendent of Police who, as head of the Police, might not be in as impartial a position for discovering the truth, as an officer, not connected with the Police.

6. In Ramakrishna v. M.K.Patil and others (reported in 1978 Cri.L.J., NOC 45), the complainant had made serious allegations against Sub Inspector and filed a complaint before the Magistrate. In this case, directions were given by the Magistrate to the Superintendent of Police to investigate into the complaint. This was deprecated by the Karnataka High Court and it was observed :-

"A Court whose duty it is to administer justice has to be alert and watchful to see that it is not led away by false pleas and the administration of justice should be conducted in such a manner as to preserve the people's confidence in it. It will be rather sad and if an impression is created that a man subjected to ill treatment by policemen can have no redress in a court of law. Investigation is no doubt directed for the purpose of ascertaining the truth or falsehood of the complaint i.e., for ascertaining whether there is material in support of the complaint so as to justify the issue of process and commencement of proceedings against the persons concerned.

Hence the Magistrate was not justified in asking the Superintendent of Police to enquire into the complaint. (1905) 2 CriLJ 51 (Cal), Followed."

7. In Ramchandra Venkatrama Gowda v. S.M.Bandiwad and others (reported in 1982 Cri.L.J. NOC 41), a private complaint had been filed against Police Officer for offence under Section 468 and other cognizable offences. The Magistrate referred the matter to police for investigation under Section 156 (3) of Cr.P.C. Accordingly, legality and propriety of the order of the Magistrate came up before the High Court and after relying upon Ramakrishna v. M.K.Patil and others (supra), it was observed:-

"Where a complaint is made against Police Officers making serious allegations of cognizable offences committed by them it would not be proper for the Magistrate, when the complainant requests that the Magistrate should try the case himself, to refer the case to the police under S.156(3) of the Criminal Procedure Code, he ought to inquire into the matter himself in the interests of justice and to instil confidence in the minds of the public that the Court would do justice irrespective of the position of the culprits."

8. Besides the rulings placed before me by the learned A.P.P., I have been able to lay my hands on a number of rulings on the issue in question.

9. In Baidya Nath Singh v. Muspratt and others (reported in I.L.R. (Vol.XIV) 1887 Calcutta Series, 141), a complaint had been filed against a Police Officer and after the Magistrate recorded the complainant's statement, he called for report from the police under Section 202 of Cr.P.C. and acting on the said report, dismissed the complaint. The Calcutta High Court held that the Magistrate had acted illegally in calling for a report from the Assistant Superintendent of Police, who was one of the accused persons in the said case. The order of the Magistrate was, therefore, set aside and he was directed to proceed in accordance with the provisions of Cr.P.C.

10. In Mt.Mahadei v. Ram Sahai and another (reported in AIR 1919 Oudh 395), the complainant had charged a police constable and a goldsmith for having embezzled her jewellery. The Magistrate after examining the complainant, ordered the police to make enquiry. It was held by the Judicial Commissioner's Court of Oudh that where a person accused of a criminal offence is a member of the police force, it is desirable that the enquiry should be conduced by the Magistrate himself. Reliance was placed in this case on Queen - Empress v. Kanappa Pillai (reported in 1897 (20) Madras 387), in which it was pointed that where accused is a member of police force, it is generally better that the enquiry should be conducted by the Magistrate himself.

11. In Harihar Prasad v. Emperor (reported in AIR 1920 Allahabad 77), it has been laid down that in dealing with the complaint against a police officer a Magistrate does not exercise a proper discretion in dismissing it under Section 203 of Cr.P.C., on the mere report of a local investigation by a superior officer of police and he should himself hear the witnesses on whom the complainant relies to establish the truth of allegation, and give his best consideration to the statements, along with the report of the local investigation.

12. In Mt.Shama and another. v. Ejaz Ahmad and others (reported in AIR 1920 Allahabad 91), it has been laid down that where a complaint is made against an office of police, the Magistrate should himself conduct the investigation and not refer the matter for investigation to the superior officer of the accused.

13. In Mewa Lal v. Emperor (reported in AIR 1920 Allahabad 125(1)), it has been laid down that where a complaint is made against an officer of police, it is improper to direct another police officer to conduct the investigation and the investigation should be conducted by the Magistrate receiving a complaint of by some other Magistrate.

14. In Harnarain Halwai v. Kariman Ahir (reported in AIR 1920 Patna 655), a complaint was filed against a circle officer and the Sub Divisional Officer called for his report. Upon receipt of the report, the Sub Divisional Officer dismissed the complaint under Section 203 of Cr.P.C. It has been laid down that it is illegal for a Magistrate to call upon a person in the position of an accused person (circle officer) to report as to the truth or falsity of a charge preferred against him. It was further held that the procedure adopted by the Sub Divisional Officer was not only irregular, but it was illegal and the illegality vitiated the order of dismissal as a result of which the order of dismissal was set aside.

15. In Jagindar Singh v. Agha Safdar Ali Khan (reported in AIR 1928 Lahore 88), a complaint was filed against Inspector of Police in respect of various offences. After examining a number of witnesses, the Magistrate referred to Superintendent of Police under Section 202 of Cr.P.C. for investigation. The Superintendent of Police directed the Deputy Superintendent of Police to conduct necessary enquiry. The Deputy Superintendent of Police, after conducting enquiry, sent the report and on receipt of the report, the Magistrate dismissed the complaint. It was pointed out that sending a case to police for investigation is not desirable where a member of police himself is accused.

16. In Mahllomal Dansingh v. Gianchand Salamatrai and another (reported in AIR 1933 Sind 339), a complaint was filed alleging that the accused had acted in collusion with police officer. It was observed that in such cases the Magistrate should himself investigate the matter by taking evidence himself and decide on such evidence whether the process should be issued against accused. The matter was accordingly remanded to the trial Court.

17. In Vikyamal Dakumal v. Prakashsing Atmasing and others (reported in AIR 1971 Gujarat 128), a complaint was filed against police officer. The Magistrate ordered enquiry under Section 202 of Cr.P.C. On receipt of the report from the police, the complaint was dismissed. After relying upon number of rulings to which I have already made reference above, the High Court has observed that the initial order passed under Section 202 of Cr.P.C. directing an inquiry to be made by the Police officer was illegal and 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 officers attached to the same police station. The High Court further observed that the order passed under Section 202 of Cr.P.C. suffers both from illegality and impropriety and the report cannot be made the basis for dismissing the complaint as the inquiry was vitiated and a fresh inquiry was necessary. It was further observed that in such cases prudence requires that the Magistrate should himself make an inquiry and after considering the material before him, pass proper orders.

18. In Ramakrishna alias Babu Bangari Bilgikar v. M.K.Patil and two others (reported in AIR 1977 (Vol.21) Madras Law Journal Reports (Criminal) 302), a complaint was filed against Assistant Sub Inspector of Police and Police Sub Inspector for offences under Sections 325, 352, 447, 341, 342, 506, 109 read with Section 34 of I.P.C., the Magistrate referred the complaint to the Superintendent of Police for investigation under Section 156 (3) of Cr.P.C. Superintendent of Police submitted a report that the allegations were not correct and the Magistrate dismissed the complaint even though the complainant sought an opportunity to produce evidence to prove the truthfulness of the complaint. In the circumstances, the order of dismissal was set aside and the Magistrate was directed to give opportunity to the complainant to prove allegations made in the complaint by taking cognizance of the offence under Section 200 of Cr.P.C. and then proceed in accordance with law.

19. In view of the above, the directions of the Magistrate to investigate into Criminal Case No.245/2001 under Sections 294 and 506 by the police cannot be sustained since the said complaint had been filed against the Police Station Officer, Police Station, Ashti Shri Latif Najir Tadvi and the Magistrate should have himself conducted further enquiry under Section 202 of Cr.P.C. The order of the Magistrate directing the police to investigate into the said criminal case is accordingly set aside. The report of investigation, if any filed by the police, shall not be taken into consideration at all by the Magistrate and the Magistrate shall not in any manner be influenced by the said report while conducting further enquiry into the matter under Section 202 Cr.P.C. The Magistrate may, therefore, ask the complainant to produce further evidence under Section 202 of Cr.P.C.

20. The application is disposed of in aforesaid terms. A copy of this order shall be sent to J.M.F.C., Ashti expeditiously so as to reach by 10th of next month.

Order accordingly.