The court confirmed that a Magistrate must either personally inquire into a complaint or direct a police investigation, but not both, particularly in complaints involving police officers.

ORDER :

(SHAILENDRA SINGH, J.)

Heard Mr. Krishna Prasad Singh, learned senior counsel appearing for the Petitioner and Mr. Nityanand, learned APP for the State.

2. No one appears on behalf of O.P. No.2 to 6.

3. The instant criminal miscellaneous petition has been filed under Section 482 of the Code of Criminal Procedure (in short ‘Cr.P.C.’) with a prayer to quash the order dated 09.04.2015 passed in Complaint Case No. 262 of 2014 by which the learned S.D.J.M, Daudnagar, Aurangabad has taken cognizance of the offences under Sections 323 and 504 of the INDIAN PENAL CODE (in short ‘IPC’) against the O.P. No. 2 to 6 and has also taken cognizance of the offence under Section 379 of IPC against the O.P. No.2 in addition to the above offences.

4. At the outset, it is submitted by Mr Krishna Prasad Singh, learned senior counsel appearing for the petitioner that though the LCR called for by this Court has not been received but however, the relevant ordersheets of the Complaint Case No. 262 of 2014 have been filed with this petition and the same are sufficient to decide this matter in view of the legal question raised by the petitioner.

5. While assailing the order impugned the learned senior counsel has mainly argued that the petitioner filed a complaint against nine persons including the then S.H.O of Obra P.S. and the then Circle Officer of Obra Circle and the learned Magistrate despite having proceeded under Section 200 of Cr.P.C. on the complaint of the petitioner by order dated 22.10.2014 directed the investigation to be made by a police officer to find out whether the alleged act of the accused Anil Kumar Choudhary, then Circle Officer and Praveen Kumar then S.H.O of Obra police station had been committed in private capacity or in the capacity of a public servant which was not a legal order as it is the settled position of law that on a complaint the Magistrate can either enquire the case himself or direct the police to investigate the matter and anyone of the said two modes has to be chosen by him but he cannot take recourse of both the modes simultaneously. In support of this submission learned senior counsel has placed reliance upon the judgment of this Court passed in the case of Phulena Prasad vs. The State of Bihar & Others reported in (2002) 4 PLJR 232 and paragraph no. 6 and 7 of this judgment upon which reliance has been placed are being reproduced as under:-

“ 6. So it is clear that the learned Magistrate on receipt of complaint which was made over to him under section 192(1) Cr. P.C. chose the mode of enquiring the case himself but after recording the statement of complainant on S.A. and statements of four more witnesses he asked the police to submit a report regarding the alleged occurrence with a direction to search out the affected victim. It means that the learned S.D.J.M. took the recourse of both the modes prescribed under section 202 Cr. P.C. i.e., “either to enquire into the case himself or direct investigation.” In my opinion, the procedure followed by learned S.D.J.M. in taking the recourse of both the modes is not correct and permissible by section 202 Cr. P.C. which clearly lays down that the Magistrate will “either enquire the case himself or direct the investigation to be made by a police officer or by such other person which he thinks fit and proper”. The use of word “Or” makes it clear that any one of the modes out of the two has to be chosen. I am unable to accept the submission made on behalf of opposite parties that the learned Magistrate thought it necessary to make search of the victim boy and, therefore, by directing the police to submit report he has not committed any error. Had the Magistrate taken help of police only in respect of search of the victim the matter would