Jony Jacob vs State of Kerala and Another

P.V. Narayanan Nambiar, J.—The complaint filed by the Petitioner, Crl. M.P. No. 8972 of 1997 on the file of the Judicial First Glass Magistrate''s Court, Thiruvalla alleging offence punishable under Sections 323, 324, 341 and 354 read with Section 34 I.P.C. against the Sub Inspector of Police and two Women Head Constables, Thiruvalla Police Station was forwarded to the Deputy Superintendent of Police, Thiruvalla for enquiry u/s 202 Code of Criminal Procedure, The Deputy Superintendent of Police filed a report before the court stating that the allegations in the complaint are not correct and that nothing as alleged in the complaint ever happened. This report was accepted by the court which acted upon the same and dismissed the complaint u/s 203 Criminal recording the finding that there is no sufficient ground to proceed with the complaint. The complainant who is aggrieved by the said order challenges the same in revision.

When a complaint is filed before the Magistrate who is competent to take cognizance of the same, he can do so on examination of the complainant and the witnesses, if any as provided u/s 200 Code of Criminal Procedure He can also postpond the issue of process against the accused and either enquire into the case himself for direct an investigation to be made by a police officer or such other person as he thinks, for the purpose of deciding whether or not there is sufficient ground for proceeding. In the instant case, the Magistrate thought it necessary to cause an investigation to be conducted by the Deputy Superintendent of Police. This procedure is illegal in view of Rule 26 of the Criminal Rules of Practice, Kerala, 1982 (hereinafter referred to as "the Rules") which is extracted hereunder:

Complaints against police officers not to be referred to the police A complaint against a police officer shall not be referred to by a Magistrate u/s 202 of the Code to any person other than a Magistrate subordinate to him.

A Magistrate is competent to refer a complaint against police officers for enquiry to a Magistrate sudordinate to him, if he does not chose to conduct an enquiry by himself. He cannot refer the same to a police officer in view of Rule 26 of the Rules.

The principle behind Rule 26 of the Rules is that the police officers who conduct an enquiry will be very slow in finding fault with their collegues or subordinates. There will also be a feeling in the mind of the complainant that he will not get justice and that the enquiry will not be fair and free. The apprehension in the mind of the complainant is reflected in Rule 26 of the Rules. Even if the enquiry is conducted by a superior police officer, the apprehension in the mind of the complainant cannot be dispelled with. In the decision reported in New a Lal v. Emperor AIR 1920 All. 125 it is observed thus:

Where a complaint is made against an officer of police, it is improper to direct another police officer to conduct the investigation, the investigation should be conducted by the Magistrate receiving the complaint or by some other Magistrate.

In the decision reported in Harihar Prasad Vs. Emperor, it is held as follows:

In dealing with a complaint against a police officer a Magistrate does hot exercise a proper discretion in dismissing it u/s 203, Code of Criminal Procedure, on the mere report of a local investigation by a superior officer of police, he should himself hear the witnesses on whom the complainant relies to establish the truth of his allegation, and give his best consideration to their statements along with the report of the local investigation.

A similar view is taken in the decision reported in Vikyamal Dakumal Vs. Prakashsing Atmasing and Others, in which it is held that the order passed u/s 202 Gr. P.G. directing enquiry to be made by the police officer in a complaint against police officer was illegal. It also lacks propriety.

Similar is the view taken in the decision reported in Ramakrishna v. M.K. Patil and Ors. 1978 Cri. L.J. 45, wherein it is held thus:

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 amanner 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.

In view of what is stated above, the impugned order suffers both from illegality and impropriety. Report of the police officer cannot be made the basis for dismissal of the complaint. Hence, the enquiry conducted u/s 202 Code of Criminal Procedure is vitiated and a fresh enquiry is to be conducted. In the.result, the impugned order is set aside. Crl. M.P. No. 8972 of 1997 will be restored to file and the Magistrate will conduct an enquiry by himself and take a decision as to whether process should be issued or not. The Magistrate shall not act on the report of the Deputy Superintendent of Police.

The Crl.R.P. is allowed as above.