Ashok Yadavrao Chavhan vs The State Of Maharashtra
2013 Latest Caselaw 411 Bom

                                        1                           Cri.Appln.1494.13.odt


          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD




                                                                      
              CRIMINAL APPLICATION NO. 1494 OF 2013




                                              
     Ashok Yadavrao Chavhan 
     Age : 45 years, Occ : PSI, Bhokardan, 
     R/o Bhokardan, Tq. Bhokardan, 
     Dist. Jalna. 




                                             
                                                                  ..APPLICANT 
           -VERSUS- 

     1.    The State of Maharashtra 




                                 
     2.    Asif Badremunir Tahsildar, 
                   
           Age : 31 years, Occ : CJJD, Bhokardan, 
           R/o Bhokardan, Tq. Bhokardan, 
           Dist. Jalna. 
                  
     3.    Krishna Damodhar Chakke
           Age : Major, Occ : Nil, 
           R/o Dagadwadi, Tq. Bhokardan, 
           Dist. Jalna. 
      


           (Respondent No.3 deleted 
   



           as per liberty granted 
           by Hon'ble Court by order 
           dated 25.10.2013)  
                                                             ..RESPONDENTS 





                       ...
     Advocate for Applicant : Mr. J.J. Patil 
     APP for Respondent No.1: Mr. G.R. Ingole
                       ...





                         CORAM : ABHAY M. THIPSAY, J.
                 JUDGMENT RESERVED :25th October, 2013. 
                 JUDMGENT PRONOUNCED : 23rd December, 2013 

     JUDGMENT : 

The applicant - a policeman - is aggrieved by the filing of

2 Cri.Appln.1494.13.odt

a compliant 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.

2. 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,

3 Cri.Appln.1494.13.odt

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

4 Cri.Appln.1494.13.odt

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-treatement to Krishna Chakke', and

5 Cri.Appln.1494.13.odt

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 :-

आदे श

"Direct the learned Magistrate to launch the

prosecution as per law."

3. 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

6 Cri.Appln.1494.13.odt

respect to the aforesaid offences, which order, as aforesaid, has

been challenged by the present applicant.

4. 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.

5. 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.

6. 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

7 Cri.Appln.1494.13.odt

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.

7. I have carefully considered the matter.

8. 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

8 Cri.Appln.1494.13.odt

accordance with law. The emphasis is only on one aspect, viz :-

'the respondent no.2 himself could not have lodged a complaint.'

9. 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 Cri.Appln.1494.13.odt

10. 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 Cri.Appln.1494.13.odt

11. Any way, the question is, what is the result of such

irregular procedure adopted by the Magistrate.

12. 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

11 Cri.Appln.1494.13.odt

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 V/s R.S. Naik (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.

13. 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

12 Cri.Appln.1494.13.odt

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.'

14. 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

13 Cri.Appln.1494.13.odt

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

14 Cri.Appln.1494.13.odt

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.

15. 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

15 Cri.Appln.1494.13.odt

with law, and therefore, needs to be quashed, irrespective of the

fact that on merits there might be sufficient grounds for

proceeding.

16. 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.

17. Under section 190 of the Code, a Magistrate is

16 Cri.Appln.1494.13.odt

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.

18. It has already been seen that the complaint did

17 Cri.Appln.1494.13.odt

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.

19. 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 sub-section (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

18 Cri.Appln.1494.13.odt

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.

20. 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

19 Cri.Appln.1494.13.odt

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.

21. Looked at from this angle, inspite of holding that

20 Cri.Appln.1494.13.odt

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

21 Cri.Appln.1494.13.odt

complaint is made to take cognizance of the alleged offences on

the basis thereof.

22. 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.

23. 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

22 Cri.Appln.1494.13.odt

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.

24. 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.

25. 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

23 Cri.Appln.1494.13.odt

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 bonafide 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

24 Cri.Appln.1494.13.odt

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.

26. 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.

27. 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

25 Cri.Appln.1494.13.odt

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.

28. 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 inspite 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.

29. No interference in the matter is warranted.

30. The application is dismissed.

Sd/-

(ABHAY M. THIPSAY, J.)

At this stage, after the above order was pronounced, on

the prayer made by the learned counsel for the applicant, it is

26 Cri.Appln.1494.13.odt

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.

Sd/-

(ABHAY M. THIPSAY, J.)

*** sga/-