IN THE HIGH COURT OF BOMBAY
Criminal Application No. 1494 of 2013
Decided On: 23.12.2013
Ashok Yadavrao Chavhan
The State of Maharashtra and Ors.
A.M. Thipsay, J.
Citation; 2014 ALLMR (cri) 654,2014(4)BomCR(Cri)689,MANU/MH/2444/2013.
1. The applicant – a policeman – is aggrieved by the filing of a complaint against him and another – one K.H. Sapkal – (also a policeman) by the respondent No. 2 herein – who is a judicial officer, and the order dated 27.12.2012 passed thereon by the learned Judicial Magistrate, First Class, Bhokardan, issuing process requiring the applicant and the said other accused to appear and answer to the charge of offences punishable under section 325 of the Indian Penal Code (IPC), section 324 of IPC, section 323 of IPC read with section 34 of IPC. He has, therefore, approached this Court invoking its jurisdiction under Article 227 of the Constitution of India and the inherent powers, praying that the said complaint and the order issuing process be quashed and set aside. The facts leading to the filing of the complaint and issuance of process which are rather unusual are as under:-
The respondent No. 2 herein is a Judicial Officer. At the material time, he was posted at Bhokardan, Dist. Jalna as a Judicial Magistrate, First Class. One Krishna Damodhar Chakke, who had been arrested by the police in an offence under the Maharashtra Prohibition Act, was produced before the respondent No. 2 on 08.11.2012 for obtaining his remand in police custody. It was claimed in remand application that said Krishna Damodhar Chakke was found in possession of 10 bottles containing country liquor, valued at about Rs. 400/-. A prayer was made in the remand application that the said person be remanded into police custody for three days. When the said Krishna Chakke was produced before the respondent No. 2 and when the question of his remand in police custody was being considered, Krishna Chakke started crying loudly in the Court. He complained to the respondent No. 2 that seven to eight policemen had beaten him by sticks after his arrest at about 1 p.m. on the previous day. He mentioned the name of the applicant, the other accused K.H. Sapkal, as two of the policemen, who had beaten him. Krishna Chakke also stated that because of beating given to him, his tooth was broken and he had sustained injuries on his neck, thigh and face. The respondent No. 2 noted that there were injuries on the person of the said Krishna Chakke. The respondent No. 2 rejected the prayer for remand in police custody. He remanded Krishna Chakke into magisterial custody and further directed that he be sent for medical examination. Krishna Chakke was thereafter produced before the medical officer, Gramin Rugnalaya, Bhokardan. The medical officer examined him and issued certificate indicating that the said Krishna Chakke had sustained a number of injuries by hard and blunt substance, and that, the probable age of the injuries was within 24 to 28 hours.
The respondent No. 2 then reported the matter to the Sessions Judge, Jalna, along with the order passed by him on the remand application and the certificate issued by the medical officer, Bhokardan. Though this letter was sent to the Sessions Judge on 08.11.2012 itself, the reply communication in that regard was sent by the Registrar of the Sessions Court only on 28.11.2012. It was mentioned in the said communication that the respondent No. 2 had not submitted ‘a detailed report about the ill-treatment to Krishna Chakke’, and that, such a detailed report be sent as per sub-para 5 of para 3 of Chapter I of the Criminal Manual issued by the High Court for the guidance of Criminal Courts. The respondent No. 2 then once again reported the matter to the Sessions Judge with a forwarding letter dated 11.12.2012. On this, an order was passed by the Sessions Judge, which was communicated by the Registrar of the Sessions Court to the respondent No. 2. The order reads as under:-
Direct the learned Magistrate to launch the prosecution as per law.
2. After receipt of this communication, the respondent No. 2 drafted a complaint and filed the same before the other Magistrate presiding over the Court at Bhokardan. The respondent No. 2 prayed, by stating the facts in his complaint, that the applicant and the other accused be dealt with and punished in accordance with law. The learned Magistrate before whom the complaint came to be lodged, passed an order issuing process against the applicant and the other accused with respect to the aforesaid offences, which order, as aforesaid, has been challenged by the present applicant.
3. No notice was issued to the respondent No. 2. Initially Krishna Chakke was not made a party – respondent – to the application, but by amending the application, he was added as the respondent No. 3. Thereafter, by again amending the application, the said Krishna Chakke was deleted.
4. I have heard Mr. J.J. Patil, the learned counsel for the applicant. I have heard Mr. G.R. Ingole, the learned Additional Public Prosecutor for the State.
5. The main contention advanced by the learned counsel for the applicant is that, the complaint lodged by the respondent No. 2 is not maintainable. It is contended that the respondent No. 2 has lodged the complaint in his official capacity as a Judicial Magistrate, First Class, which was not permissible. It is submitted that only the said Krishna Chakke could have made a complaint about the alleged ill-treatment and the alleged offences. It is submitted that the respondent No. 2 exceeded his jurisdiction conferred upon him by the Code of Criminal Procedure. It is also submitted that neither the respondent No. 2 nor the medical officer, who examined the said Krishna Chakke, followed the provisions contained in para. 3 of the Criminal Manual.
6. I have carefully considered the matter.
7. That, the Magistrate to whom a complaint is made by an arrested person about police having beaten him and having committed the offences against his body can take cognizance of the alleged offences on the basis of such complaint made by such accused, is not in dispute. Thus, according to the learned counsel for the applicant, had the respondent No. 2 treated the submissions made before him by the said Krishna Chakke as an oral complaint made by him, the Magistrate could have proceeded with the said complaint in accordance with law. The emphasis is only on one aspect. viz.:-‘the respondent No. 2 himself could not have lodged a complaint.’
8. There can be no doubt, that the course adopted by the respondent No. 2 is highly irregular and unusual. Being a Magistrate, he was empowered to take cognizance of the alleged offences on the basis of the complaint made by the said Krishna Chakke to him. In the event of his being satisfied about sufficiency of grounds for proceeding, and about there being no legal bar to take cognizance of the alleged offences, he could have issued process against the applicant and the other accused, on the basis of the complaint of Krishna Chakke. The extraordinary course-of himself lodging a complaint – adopted by the respondent No. 2 seems to be a result of the faulty manner in which the communication sent by the learned Sessions Judge to the respondent No. 2 is worded: i.e.:- ‘launch the prosecution’. Apparently, the respondent No. 2 construed the same as a direction requiring him to file a complaint and thus ‘launch the prosecution’.
9. In this context, a little deviation from the issues involved in the Petition would be justified. It is because it is noticed that the relevant provision in the Criminal Manual viz.: of requiring the matters of ill-treatment of the arrested persons at the hands of the police to be reported by the Magistrate to the Sessions Judge is often misunderstood. In Criminal Application Nos. 1896/2013, 1897/2013 and 1899/2013, decided on 26th August, 2013, I had an occasion to observe that reporting of the matter to the Sessions Judge has not been provided as a substitute for the procedure to be adopted by the Magistrate, on receiving a complaint alleging commission of offences. It seems that the respondent No. 2 was of the view that what is to be done in the matter was to be decided by the Sessions Judge, and that, he could not have proceeded further in the matter till the Sessions Judge would decide what was to be done and inform him accordingly. Perhaps, more clarity is required in the relevant provision.
10. Any way, the question is, what is the result of such irregular procedure adopted by the Magistrate.
11. A ground of challenge has been taken in the application to the effect that only the aggrieved person or a victim of the offence can file a complaint (ground I). A ground is also taken, that the prosecution is the responsibility of the complainant, and that, filing of the complaint by a Magistrate in his official capacity amount to identifying himself with the victim; and that, as such, such a complaint is not maintainable. It is contended that, that it is the choice of the victim to file a private complaint and the respondent No. 2 could not file the complaint by ‘stepping into shoes of the victim’. There is no substance in these grounds. It is well settled that anybody can set criminal law in motion, save and except where the relevant statute provides that a complaint in respect of any specific offence should be made only by a specified person. The complaint in respect of the offences punishable under section 323 of IPC, section 324 of IPC and section 323 of IPC need not be filed by any specified person or the victim. The principle that any one can set criminal law in motion except where there would be a statutory bar, is a proposition so well settled, that it does not require the support of any authoritative pronouncement, but assuming it is required, a reference may be made to the case of A.R. Antule Vs. R.S. Naik (MANU/SC/0082/1984 : AIR 1984 S.C. 718). That, ‘the locus-standi of a complainant is concept foreign to criminal jurisprudence’ – an observation made by Their Lordships in the said case,- has been reproduced in several reported pronouncements of the High Courts. As such, on the ground that the respondent No. 2 himself is not the aggrieved person, the filing of the complaint and the order issuing process cannot be said to be bad-in-law.
12. Though this is true, that a Magistrate ought not to make such a complaint is also true. The Magistrate is a functionary under the Code of Criminal Procedure. The position of the Magistrate is recognized by the Constitution of India also and every person arrested is required to be produced before a Magistrate within 24 hours and further detention of such person in custody can be authorized only by an order of the Magistrate. The Magistrate has several powers over the police at the investigation stage. He also decides criminal cases filed before him, excepting those relating to offences triable exclusively by the Court of Sessions, or by a Special Forum. The Magistrate who has to decide, whether to take cognizance or not on the basis of the complaints lodged by others before him, is not supposed to lodge a complaint himself on somebody reporting the commission of offences to him. Though this position is clear, as aforesaid, the real question is, now ‘whether, because it has been lodged by a Magistrate, the complaint deserves to be quashed.’
13. In the order passed by the respondent No. 2, below the remand application, the statements made by Krishna Chakke are reflected. It shows that Krishna Chakke had a complaint against the applicant, the other accused and some other policemen to the effect that they had demanded money from him. That, they had beaten him and threatened him. I have also gone through the statement of Krishna Chakke recorded by the respondent No. 2 after the direction of the Sessions Judge ‘to launch the prosecution as per law’. In this also, Krishna Chakke has stated about the beating given to him by the applicant and others. He has categorically stated that after his arrest on 07.11.2013 at about 1 p.m., the police had demanded money from him for releasing him. That, the applicant and other policemen threatened him that he would be kept in the Harsul prison for three months. That, the applicant and the other policemen assaulted him with fists, kicks and sticks. That, because of the beating, his one tooth was broken. That, he also sustained the injuries near his eyes, neck and thigh. That, the police did not give any food or even water throughout the night. The whole night he was being beaten by the applicant and other policemen. That, when he was produced in the Court for remand by four policemen, three of them, were standing outside the door of the Court hall and were making signs indicating that he should not state anything in the Court about the beating given to him. The report of the Medical Officer also shows that a number of injuries were sustained by the said Krishna Chakke and the age of injuries was also said to be such, as to indicate that they had been caused after his arrest by the police. Thus, there was indeed a case for proceeding against the applicant and the other accused. In other words, the information given by Krishna Chakke and the material collected from the medical officer, provided sufficient grounds for proceeding against the applicant and the other accused with respect to the aforesaid offences.
14. When this aspect of the matter surfaced in the course of arguments, the learned counsel for the applicant submitted that even if the present complaint is quashed, it would be open for Krishna Chakke to prosecute the applicant and the other accused on a complaint made/to be made by him. The learned counsel for the applicant submitted that this complaint being lodged by a Magistrate is not in accordance with law, and therefore, needs to be quashed, irrespective of the fact that on merits there might be sufficient grounds for proceeding.
15. The filing of the complaint by respondent No. 2 has given rise to a peculiar situation. On one hand, issuance of process against the applicant does not seem to be capable of being challenged successfully on the ground of insufficiency of material for proceeding and on the other hand, the manner in which the matter was brought before the learned Magistrate, who passed the order issuing process, was clearly highly irregular. What this Court should do in such circumstances when it is called upon to exercise its powers under Article 227 of the Constitution and its inherent powers saved by section 482 of the Code, needs to be decided in the light of the scheme of the relevant provisions in the Code relating to cognizance of offences.
16. Under section 190 of the Code, a Magistrate is empowered to take cognizance of an offence:-
(1) upon receiving a complaint of fact which constitute such offences;
(2) upon a police report of such facts;
(3)(i) upon information received from any person other than a police officer, or (ii) upon his own knowledge, that such offence has been committed.
Going by the definition of a ‘complaint’ in clause 2(d) of the Code, it is not possible to hold that what was filed by the respondent No. 2 before the other Magistrate does not qualify as a ‘complaint’. It had all the ingredients of a complaint. Simply because the person making a complaint is a Magistrate, the communication cannot be said to be not a complaint. What is excluded from the category of complaint is only a police report.
17. It has already been seen that the complaint did make out a prima facie case; and as a matter of fact, that there were no sufficient grounds for proceeding against the applicant and the other accused is not the contention of the applicant at all – his contention being only that the respondent No. 2 was not entitled to make a complaint and further no cognizance of any offence on the basis of such a complaint could have been taken.
18. Even if it is assumed only for the sake of arguments that the communication by the respondent No. 2 to the other Magistrate ought not to be treated as a complaint, it is clear that the same can certainly be treated as ‘information received from any person other than a police officer’, as contemplated in clause (c) of subsection (1) of section 190 of the Code. The word ‘information’ is certainly a wider term than ‘complaint’ and would include any communication relating to the commission of an offence. An ‘information’ is a genus of which ‘complaint’ is a species. If the complaint is not a valid complaint, it does not cease to be information and it would be open for the Magistrate, to whom such an invalid complaint is made, to treat it as ‘information’ and act upon it, subject to the statutory bars, if any, on such acting. Only ‘information received from a police officer’ has been excluded from the ambit of clause (c). The communication made by the respondent No. 2 to the learned Magistrate, who passed the order issuing process, was a complaint as defined under the Code, but even assuming just for the sake of arguments that having been made by a Magistrate, who had received the information about the commission of the offences while he was discharging his duties, it did not amount to a complaint, still it would be covered by the term ‘information’ appearing in clause (c) of Section 190 of the Code. It would be open, therefore, for the Magistrate, who has received such a complaint or information, to proceed further on that basis in accordance with law.
19. In the application and also in the oral arguments advanced by the learned counsel for the applicant, there has been much focusing on the aspect of the impropriety or impermissibility of the respondent No. 2 himself filing a complaint. However, on a careful consideration of the matter, it appears that the focus should be on the correctness, legality and propriety of the order taking cognizance of the offences alleged in the complaint and the order issuing process. The impropriety of the respondent No. 2 himself filing a complaint is ultimately relevant only in the context of the question as to whether the cognizance of the alleged offences could have been taken on the basis of the said complaint. The question is whether the order taking cognizance of the alleged offences and issuing process against the applicant (and the other accused) suffers from such an illegality, so as to vitiate the entire proceeding and require quashing of the prosecution. Therefore, it is inevitable that in the ultimate analysis, the focus would be on the legality and propriety of the order issuing process rather than the manner in which the matter was brought before the learned Magistrate, who issued process.
20. Looked at from this angle, inspite of holding that the Magistrate ought not to have filed a complaint himself, I do not think that a case for quashing the proceedings instituted vide the said complaint and the order issuing process is made out. When criminal law can be set in motion by any one and not necessarily by the aggrieved person, and when cognizance of an offence can be taken by a Magistrate, not only on the basis of a police report or a complaint, but also on his own knowledge that such and such offence has been committed, the complaint lodged by the respondent No. 2 cannot be said to be something on the basis of which the prosecution cannot be launched and the cognizance of the alleged offences cannot be taken. The undesirability or impropriety in a Magistrate himself filing a complaint, that someone else has been assaulted, has nothing to do with the power of the Court, to take cognizance of the alleged offences on the basis of such a complaint. In other words, the filing of such complaint by a Magistrate, who came across the alleged offences while he was doing his official duties would be a question only of propriety; and not of ability or authority of the Court to which such a complaint is made to take cognizance of the alleged offences on the basis thereof.
21. One aspect of the matter, which is not canvassed before me, however, may be mentioned here. I have examined the record and proceedings. It appears that the Judicial Magistrate, First Class issued process on the basis of the complaint made by the respondent No. 2, without examining the respondent No. 2. A question would arise whether, the procedure adopted by the Magistrate was proper or legal. This depends on whether the complaint filed by the respondent No. 2 should be treated as one filed by a private individual or whether it should be treated as a complaint filed by the respondent No. 2 in his official capacity. The answer to this question is not easy, but whatever may be the correct legal position, this would not be sufficient to quash the order issuing process.
22. The first proviso to Section 200 permits a Magistrate to dispense with the necessity of examining a complainant on oath, if the public servant acting or purporting to act in discharge of his official duty, or a Court, has made the complaint. The respondent No. 2 acted on the directions given by the Sessions Judge, as understood by him. Therefore, the complaint must be termed/treated as having been made by the respondent No. 2 while acting, or at any rate, purporting to act in discharge of his duties.
23. In any case, the omission to examine the complainant i.e. the respondent No. 2 on oath in such a case would be a curable irregularity and on such a ground, the prosecution cannot be quashed. This irregularity is not covered by section 461 of the Code. Therefore, assuming that the complaint filed by the respondent No. 2 ought to have been treated as a complaint filed by a private individual, and that, therefore, it was necessary for the Magistrate to whom the complaint was made to examine the respondent No. 2 on oath, still the omission to examine the respondent No. 2 on oath cannot be treated as fatal and certainly on that ground, the prosecution cannot be quashed, when the complaint was supported by the relevant documents.
24. The jurisdiction conferred on this Court by Article 227 of the Constitution is of a supervisory nature. The exercise of this jurisdiction is discretionary. It should be used sparingly. Similarly, the inherent powers of the High Court, which are saved by section 482 of the Code, are also required to be used sparingly and not to correct every irregularity or even illegality. The inherent powers are meant to be exercised:-
(i) to give effect to an order under the Code, or,
(ii) to prevent abuse of the process of any Court, or,
(iii) otherwise to secure the ends of justice.
In this case, no failure of justice has occasioned by issuance of process against the applicant and the other accused. Prima facie, it appears that there were sufficient grounds for proceeding against the applicant and there was substance in the allegations leveled by the said Krishna Chakke. The respondent No. 2 has filed the complaint bona-fide and on being satisfied, prima facie, about the correctness of the allegations leveled by the said Krishna Chakke. It must be clearly understood that had process been issued on the complaint of Krishna Chakke itself, the contentions that are now being advanced by the applicant could not have been advanced. No prejudice will be caused to the applicant only by reason of fact that the process came to be issued on the complaint of the respondent No. 2, rather than that of Krishna Chakke. Ultimately, for proving the allegations, the evidence of Krishna Chakke will be necessary. It cannot, therefore, be suggested that a failure of justice would be occasioned, if the applicant is put to trial on the allegations leveled in the complaint.
25. The error and impropriety committed by the respondent No. 2 in lodging the complaint himself may be brought to the notice of the Administrative side of this Court so that appropriate directions in the matter to all the Judicial Magistrates, can be given. However, the applicant, against whom there appears to be prima facie case for proceeding, cannot benefit from such irregularity.
26. To conclude, there was no specific prohibition or bar in law to take cognizance of the alleged offences on the basis of the complaint lodged by the respondent No. 2. There was also no legal bar or prohibition on the lodging of the complaint by the respondent No. 2 and the question would only be of propriety and regularity. In any case, the respondent No. 2 has clearly acted in good faith thinking himself to be acting in his official capacity and as per the directions given by the Sessions Judge to whom he was subordinate. The institution of proceedings against the applicant is not shown to be barred under the provisions of any law. It is not that the complaint does not disclose the ingredients of the alleged offences, or that it is not supported by the material collected by the respondent No. 2.
27. Consequently, under these circumstances, it will not be in the interest of justice to quash the prosecution against the applicant by exercising the supervisory powers of this Court and/or its inherent jurisdiction. Rather, quashing the prosecution in-spite of availability of sufficient material for proceeding against the applicant on the ground that not the respondent No. 2, but Krishna Chakke ought to have lodged a complaint, would be against the interest of justice.
28. No interference in the matter is warranted. The application is dismissed.
At this stage, after the above order was pronounced, on the prayer made by the learned counsel for the applicant, it is directed that the interim order shall continue to remain in force, for a period of four weeks from today, notwithstanding the dismissal of the application.