Ravanaiya Reddy vs Balaiya

Singaravelu, J.—This is a revision petition filed by the complainant u/s 401 of the Code of Criminal Procedure against the order of the Sub-

Divisional Judicial Magistrate, Tirpattur, in Criminal Miscellaneous Petition No. 1272 of 1984 dated 21st September, 1984, dismissing the

Petitioner is complain.

It is necessary to state a few facts of the case for the approbation of the point in dispute. The Petitioner herein filed a compliant against the

Respondent who is the Sub-Inspector of police, Law and Order, jo arpet police Station, u/s 166 of the Indian Penal Code alleging that the

Respondent, a public servant, disobeyed the law intending to cause injury to the Petitioner. In his complaint, the Petitioner has alleged that one

Radha and 13 others formed themselves into an unlawful assembly on 13th September, 1982 at 7:30 A.M. and armed themselves with dangerous

weapons, trespassed into the house of the Petitioner and committee various offences The complainant reported he matter to the Respondent who

is said to have neglected or refused to take any action against the accused. There upon, the complainant filed a private complaint on the file of the

Sub-Divisional Judicial Magistrate, Tirupattur, who referred it to the same Sub-Inspector, namely, the Respondent herein, for enquiry u/s 156(3) of

the Code of Criminal Procedure. It is alleged that even then the Respondent would, not register a case nor investigate into the complaint, there by

disobeying the law. In spite of several reminders from the Court to the Respondent, he did not discharge his official duty of investigating into the

complaint. The Petitioner, as a last resort, had to file a complaint against the Respondent before the Sub-Divisional judicial Magistrate, on 9th

November, 1982. The Sub-Divisional Judicial Magistrate sent a copy of the compliant to the Superintendent of police, North Arcot, Veliore for

appropriate action, but even then the Respondent was supinely inactive. This inaction one the part of the Sub-Inspector of police (Respondent)

who is in charge of Law and Order, emboldened the accused to commit further acts of aggression on the complainant on 12th January, 1984.

The Sub-Divisional Judicial Magistrate, instead of taking the complaint (filled by the Petitioner herein) on file or disposing of the same according

to law, registered it at as Criminal Miscellaneous Petition No. 1272 of 1984 after a long delay. Then the lower Court instructed the Assistant

Public Prosecutor to defend the Respondent Sub-Inspector of police and to argue on his behalf. The Sub-Inspector of police was not even

summoned to appear before the Court, though the Petitioner complainant was asked to be present on all the hearing without any progress in the

enquiry. Ultimately, the lower Court sent a notice to the Respondent 1 accused to appear before the Court on 15th February, 1984. The

Respondent would not appear in Court, but sent a letter to the Court in reply to the summons. The trial Court, ignoring the absence and

disobedience of the Respondent to appear before the Court, simply adjourned the case by making an entry on the notes paper as Reply received-

Call on 22nd February, 1984. Thereafter, the petition was adjourned for 14 hearing till 21st September, 1984 and the Respondent never cared to

appear in Court, nor was any petition filed for excusing his absence for the 14 hearings. As already stated, the trial Court directed the Assistant

Public Prosecutor to argue on behalf of the accused on the maintainability of the complaint u/s 166 of the Indian Penal Code and Section 197 of

the Code of Criminal Procedure. The Petitioner''s Counsel filed a detailed written arguments in support of his case pointing out that no sanction

was necessary in the case of a Sub-Inspector of police who is a rank-promoted Officer. Ultimately, the lower Court dismissed the complaint

holding that the Respondent accused had not willfully disobeyed the order of Court and there is no prima face case against the Respondent for the

alleged offences. Hence the revision petition by the complainant.

I have heard learned Counsel for the Petitioner and also the learned Counsel for the Respondent who appears to have been engaged privately

by the Respondent 1 accused and I have perused the papers on record and I am satisfied at the end that the entire proceedings of the lower Court

are vitiated by gross illegalities and improprieties by committed by the trial Magistrate. I shall list out the irregularities and the illegalities of the lower

Court one by one.

The first and the foremost impropriety is that the Magistrate instead of taking cognizance of the complaint preferred by the Petitioner and

disposing of according to law, has curiously treated the complaint as a criminal miscellaneous petition, numbered it as Criminal Miscellaneous

Petition No. 1272 of 1984 and sent a memo to the accused and asked him to appear before the Court on 15th February, 1984. It is not known

under what provision of law or procedure, a complaint u/s 166 of the Indian Penal Code was treated as a criminal miscellaneous petition and

intimation sent to the accused to appear before him This memo sent to the Respondent to appear before the Court was ignored by him, and he

sent a letter in reply to the memo which itself is highly irregular. The Respondent should have appeared before the court and made his

representations either in person or through a Counsel, and without even appearing, he sent a letter to the Court in reply to the direction to appear

before the Court. The trial Magistrates should have healed up the Respondent for his no appearance either in person or through a counsel, but he

quietly ignored his absence and did not take any notice of the conduct of the Respondent in disobeying the direction to appear before the Court.

Very strangely the Magistrate has made an entry on the notes paper as Reply receivable and adjourned the case as if it was a departmental or non-

judicial enquiry. The Magistrate, and for that matter, any Court need not take into consideration communication addressed to the Court by the

Respondent 1 accused, and he should have followed the procedure laid down in the Code of Criminal procedure.

The next impropriety of the lower Court is that proceedings in Criminal miscellanies Petition No. 1270 of 1984 was adjourned for 14 hearing

from 22nd February, 1984 to 24th September, 1984. Obviously, the Respondent I accused never appeared before the lower Court during the 14

hearings and the lower Court never took note of the absence of the accused on all the hearings from February, 1984 onwards. This conduct of the

Magistrate is again understandable. What is more shocking is, that the Magistrate suo motu appears to have directed the Assistant Public

Prosecutor of his Court to appear on behalf of the accused and argue the matter. In other words, the lower Court engaged the Assistant Public

prosecutor to defend the accused when he himself did not choose to contest or defend the case. The Magistrate had no business to call upon the

Assistant Public Prosecutor to argue the case on behalf of the Respondent accused who himself had not chosen to engage a Counsel of his own or

obtained suitable direction to have the assistance of the Assistant Public Prosecutor, especially when the petition is a private complaint preferred by

the Petitioner against the Respondent.

It would appear that the Assistant Public Prosecutor contended on behalf of the Respondent accused that the complaint u/s 166 of the Indian

penal Code was not maintainable without sanction. For one thing the alleged want of sanction cannot be considered in a separate Criminal

Miscellaneous petition and it can be raised only when the complaint itself is duty taken on file. For another, its doubtful whether sanction to

prosecute is at all necessary u/s 197 of the Code of Criminal Procedure in respect of a rank-promoted Sub-Inspector of Police who is liable to be

removed from service by the head of the Department and not by the Government. It is again debatable whether the alleged offence against the

Respondent 1 accused was committed by him while acting in the discharge of his official duties or otherwise.

Lastly, yet another impropriety committed by the Magistrates that when the private complaint has been filed by the Petitioner herein alleging

inaction on the part of the accused, the Magistrate has chosen to forward the complaint to the very same Sub-Inspector (accused), namely the

Respondent herein, for enquiry u/s 156(3) of the Code of Criminal Procedure. Further, the complaint was not even registered by the Respondent,

and yet the Magistrate appears to have kept quiet over the matter till a complaint u/s 166 of the Indian Penal Code was filed against the Sub-

Inspector 1 Respondent.

The result of my discussion is that the trial Court has committed illegalities and improprieties from one to another throughout and, therefore, the

order of the lower Court in Criminal Miscellaneous Petition No. 1272 of 1584 has to be and is hereby quashed unreservedly. The only course

now upon is the Magistrate has to take the complaint on file and dispose it of according to law. Now that the Sub-Divisional Judicial Magistrate,

Tirupattur has formed an opinion about the complaint against the Respondent u/s 166 of the Indian Penal Code, it is not just or expedient to allow

him to try the case. Consequently, the complaint will be taken on file by the Chief Judicial Magistrate, North Arcot at Vellore who will dispose it of

himself according to law expeditiously. The petition is allowed with these observations.