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2013 Supreme(Bom) 2588
In the High Court of Bombay at Aurangabad
ABHAY M. THIPSAY, J.
Ashok Yadavrao Chavhan
Versus
State of Maharashtra & Others
Criminal Application No. 1494 of 2013
Decided On: 23-12-2013
For the Applicant:J.J. Patil, Advocate.
For the Respondents: R1, G.R. Ingole, APP.
Headnote:Criminal Manual (Bombay High Court) - Chapter 1, Para 3 - Ill-treatment of arrested person by police. - When victim, an arrested person, narrated incident of his ill-treatment by police before Magistrate, Magistrate can take cognizance of offence.
Criminal Procedure Code, 1973 - Sections 2(d) and 190 - Scope of complaint. - Complaint filed by one Magistrate, as to assault by Police on arrested person, before another Magistrate, is a complaint under Section 2(d) of CrPC. - 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 one Magistrate 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.
Even if it is assumed only for the sake of arguments that the communication by the first magistrate 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 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 first Magistrate to the 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, there fore, for the Magistrate, who has received such a complaint or information, to proceed further on that basis in accordance with law.
Criminal Procedure Code, 1973 - Sections 200 and 461 - Requirement of examination of complainant on oath. - Since a Magistrate filed a complaint about police ill-treatment before another Magistrate, in discharge of his official duty hence requirement of oath can be dispensed with.
Criminal Procedure Code, 1973 - Section 482 - Quashing of complaint. - Since complaint about assault by police on arrested person filed by one Magistrate before another Magistrate is not barred hence complaint cannot be quashed.
Indian Penal Code, 1860 - Sections 323 and 324 - Assault on arrested person by Police. - Complaint for offence of assault by Police on arrested person, lodged by Magistrate is maintainable.
1. The applicant – a policeman – is aggrieved by the filing of 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, 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:-
“HINDI”
“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 stati
