Tung Nath Ojha vs Haji Nasiruddin Khan

S.H.S. Abidi, J.—Petitioner-Tung Nath Ojha has come to this Court against the order dated 17.2.1984 passed by the learned Chief Judicial Magistrate, Bhagalpur, taking cognizance of the offences under Sections 347, 386 and 389 of the Indian Penal Code.

A complaint is said to have been filed on 24.10.1983 in the court of the learned Chief Judicial Magistrate, by one Haji Nasiruddin Khan (opposite-party) that the petitioner while posted- as Sub-Inspector of Police at Pirpaiti police-station came to the shop of the complainant and asked him to accompany to his godown of leather in connection with certain enquiry; that when he came out he found seven persons in the custody of the police including the servant of his nephew Badrul Hassan and then went to the leather godown of one Haji Jallaluddin, brother of the complainant; that thereafter the petitioner asked the complainant and his brother to accompany him to the police-station; that while the complainant''s brother was on the way to the police-station, the petitioner demanded one lakh rupees from them and threatened that on failure to do so, they would be roped and handcuffed, that the complainant could anyhow arrange with great difficulty and paid a sum of Rs. 55,000.00 whereupon they were let off. It was further said that on 5.10.1983 the Superintendent of Police called him and then on his assurance he disclosed this incident to him whereupon the statement of the complainant was recorded and he asked the complainant to tell the petitioner that in case the petitioner did not return the money to him, he (complainant) would file complaint against him (petitioner). The complainant asked the petitioner to refund his amount but the petitioner did not return the money inspite of the requests made by him. Thereafter the complainant filed the complaint.

The complainant was examined on 1.11.83 and then his complainant was also sent to the Superintendent of Police, Bhagalpur, for enquiry and submission of report. The order-sheet dated 13.2.1984 shows that the report of the Superintendent of Police was received and the counsel for the parties were heard and 17.2.1984 was fixed as the next date. On the said fixed date the learned Chief Judicial Magistrate looked into the complaint, statements on solemn affirmation and the enquiry report and thereafter found a prima facie case against the petitioner under Sections 347, 386 and 389 of the Indian Penal Code (for short IPC) and took cognizance of the said offences and transferred the case to the court of the Sub-divisional Judicial Magistrate, Bhagalpur.

Learned Counsel for the petitioner has challenged the order of taking cognizance saying that the report by the Superintendent of Police is not a report but a reproduction of the matter in respect of a case being Police Case No. 200(9) 837 E.C. Act against the complainant in which the complainant was arrested and produced in court on 30.9.1983 and the cognizance was taken by the learned Special Judge. Next, it was argued that when the complainant was produced in the court in connection with the said case No. 200(9) 83 then he had not complained to the learned Special Judge about any torture, harassment or ill treatment by the police, as alleged in the complaint. Thirdly, it was argued that the petitioner being a public servant sanction for prosecution should have been obtained.

For the first contention that the enquiry report submitted by the Superintendent of Police in compliance of the order of the court dated 1.11.1983 in which it was said that the matter was being sent for the enquiry and submission of report and the Superintendent of Police should have enquired the matter himself, learned Counsel further urged that the report of the Superintendent of Police, which has only referred to the earlier u/s 7 E.C. Act and no further enquiry is said to have been by the Superintendent of Police, should have been discarded by the trial court. Looking the report, it appears that the Superintendent of Police has submitted the report with a letter that earlier a case u/s 7 E.C. Act had been filed by the police against the complainant, and that the Superintendent of police had made spot enquiry for report. Whatever the Superintendent of Police thought fit, had sent the same. There is no procedure prescribed for the enquiry when it is ordered by a court and so it remains in the discretion of the inquiring officer to submit his report after inquiry in a manner which Is required under the circumstances. It is not like an investigation u/s 173 of the Code of Criminal Procedure. u/s 202 of the Code of Criminal Procedure the enquiry report by a judicial magistrate can be, not like police investigation. Similarly when a Superintendent of police is directed to submit a report, it is not always an investigation but it can be a report, if directed to do so. In this case the Superintendent of Police was not directed to make an investigation but to submit report, which order he has complied with. An enquiry and the investigation are not synonymous but different. Learned Counsel for the petitioner has referred to a decision in the case of Umakant Dubey v. Bhunnu Bhuiyan 1975 BBCJ 388 wherein the learned Single Judge of this Court has observed that the words ''inquiry'' and ''investigation'' have been separately defined in the Code and after referring to the definition, referred in Section 2(g) and 2(h) about the enquiry and investigation, it was held

From a bare reference to the definition of investigation ''it is obvious that it includes all the proceedings for collection of evidence conducted by a police officer or by any person other than a Magistrate. As such a Magistrate cannot be deemed to have investigated into the case while submitting his inquiry report.

Learned Counsel referred to another decision reported in 1980 BBCJ 467 : 1980 PLJR 419 Ram Prabesh Rai and Ors. v. Bishnu Mandal wherein it has been observed at page 470:

Section 202 of the new Code further provides that the Judicial Magistrate may direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of finding out a prima facie case. An enquiry means every enquiry other than a trial the Magistrate, in order to satisfy himself, may hold an enquiry to find out a prima facie case. The word ''investigation'' is defined is Section 2(k) of the new Code. It includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It may be relevant here to state that word "Magistrate" has been used in Section 2(h) also without any qualifying words. Reference to the word ''Magistrate'' in Section 2(h) shall have to be construed as reference to a Judicial Magistrate. This means that an investigation cannot be made by a Judicial Magistrate. The collection of evidence can be made by a police officer or by any other person who is thought fit and is authorised by a Judicial Magistrate in that behalf. An Executive Magistrate is not authorised to take cognizance or to hold any trial under the new Code. In our opinion there does not appear to be any bar in directing an investigation to be made by an Executive Magistrate u/s 202 of the new code in order to collect evidence. An Executive Magistrate is include amongst "such other person" referred to in Section 202.

Considering those arguments it is quite apparent that the Judicial Magistrate can take cognizance, call for a police report even from any other person or by a police officer and that a Magistrate cannot make Investigation. The police officer is to make investigation but if the police officer is asked to submit a report then it does not mean that it is always like an investigation u/s 173 Cr. PC He can submit a report when specially it has been mentioned in the order Janch Pratibedan Ke Waste Bheja Jata Hai" i.e. for enquiry. It was not mentioned for Anusandhan (investigation). So the police officer was well within his jurisdiction to submit a report after enquiry which he though fit in the manner. He submitted his endorsement letter referring that previously a case has been instituted by the police against these persons. So it cannot be said that the police officer has not complied with the order or has submitted a report contrary to the order of the court i.e. the Magistrate might have asked him to investigate, but he submitted only a report. If the learned Magistrate''s Intention in the order had not been complied with, then definitely he would have asked the police official to submit further report: by way of investigation. The learned Magistrate after getting the report and considering the other material, as stated above, passed the Impugned order. So it cannot be said that there is non-compliance of the section.

Learned Counsel for the petitioner further urged that the report submitted by the police was an investigation and it could not have been looked into by the learned Magistrate and in relation to this contention he has referred to two decisions, namely, (1) Chandra Deo Singh Vs. Prokash Chandra Bose and Another, and (2) Ram Kumar Pandey v. State of Bihar and Anr. 1979 BBCJ 293 : 1979 PLJR 502. In the case of Chandra Deo Singh, the facts were that a first Information report was lodged by one Panchanan Roy in respect of a murder case in which the police after investigation submitted final form. Thereafter a complaint was filed by one Mahendra Singh by which the Sub-divisional Judicial Magistrate ordered another Magistrate to make enquiry and submit report. Then again a third person named Chandra Deo Singh filed a complaint on which also the learned Magistrate ordered the same Magistrate, who was entrused to submit enquiry report on the complaint of Mahendra Singh, to submit his inquiry report. The learned Magistrate entrusted with the enquiry had submitted his report stating that a prima facie case was made out against some persons on the complaint of Mahendra Singh and on the same day he submitted another report In regard to complaint of Chandra Deo Singh that no prima facie case was made out against some other persons. So on the basis of the first report the Magistrate ordered summons to be issued against three persons and seeing the second report dismissed the complaint. In doing so the Magistrate had also considered the enquiry report in connection with complaint of Mahendra Singh. The Supreme Court observed that the Magistrate was not right in taking into consideration the enquiry report of the first case (Mahendra Singh''s complaint) or the final report submitted by the police on the basis of first information of Panchanan Roy. The court should have confined itself to the complaint of Chandra Deo Singh, statement of witnesses and also to the enquiry report of the case of Chandra Deo Singh alone in which enquiry had been sought for. In case of Ram kumar Pandey (supra) a Division Bench of this Court referring to Chandra Deo Singh''s case (supra) has held that the Magistrate cannot look into the police papers for the purpose of summoning the accused or dismissing the complaint. He has to confine to the material produced before him in the case.

In the present case the learned Magistrate has to consider the complaint, statement of the witnesses and the report submitted by the Superintendent of Police in accordance with the direction of the Court and not by way of any investigation u/s 173 Cr. PC on the basis of any first information report or any direction to the Superintendent of Police to submit his report like an investigation. As such these two above mentioned decisions are not applicable to the petition rather the law laid down in these cases has been followed by the learned Magistrate.

Looking to the order taking cognizance itself it appears that the court has applied its mind and so it is not mechanical issue of the process. For this reason also the order cannot be said to be bad in law.

In the result, this application has got no force and it is dismissed. It is, however, made clear that any observation made in this case will not affect the interest of either of the parties to this. In case the petitioner appears before the court below and places his contention of law and fact other than those on which findings have been given by this Court, then the court will consider the same and pass suitable order in accordance with law. If no case for proceeding is made out, then the court will discharge the petitioner. But if the fact is otherwise, then the law will take its own course. The stay order granted by this Court is vacated.