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Judgment
Hasnain Massodi, Judge
Notice. Mr. R.K. Kotwal, Advocate accepts notice on behalf of the respondent.
The matter because of short controversy involved is, on consensus taken up for final disposal.
Heard and Considered.
Choudhary Nagar Singh ' respondent herein on 04.01.2012 filed a complaint against Shri Basant Rath and four other Police Officers in the
Court of Chief Judicial Magistrate, Jammu alleging commission of offences punishable under Sections 500, 503 RPC and u/s 66A of Information
Technology Act, 2000. The respondent/complainant's case was that the petitioners herein and their three other colleagues constituted a Special
Investigation Team (SIT) for investigation of case FIR No. 247/2009 at Police Station, Gandhi Nagar, Jammu, under Sections 302, 34 RPC read
with Section 3/25 of the Arms Act. The respondent alleged that the petitioners and their colleagues took him into custody and allegedly subjected
him to vulgar, intimidating, abusive and uncivilized interrogation, that the respondent was physically tortured and petitioners and their colleagues
made vulgar imputation and defamatory remarks against his daughter-in-law and not only insulted the respondent but also tortured him to extort a
confessional statement from him. It was further alleged that the other members of the Special Investigation Team, one of whom was a close relative
of the deceased, made a Video Film of the custodial interrogation to which the respondent was subjected and later with a criminal intention to
defame him and all those related to him and injure their feelings, put the Video Film so prepared on the web site accessible to one and all including
the relatives, friends, fellow businessmen of the respondent. The respondent alleged that the petitioners and their colleagues in the Special
Investigation Team, by placing the Video Film on web sites/You Tube, committed offences punishable u/s 500, 503 RPC and u/s 66A of the
Information and Technology Act, 2000. The respondent claims to have himself viewed the video film on 28.11.2010 on cell phone when he was
brought in custody to appear before the Court of 2nd Additional Sessions Judge, Jammu.
Learned Chief Judicial Magistrate recorded the statement of the respondent and that of his witness namely Sonam Deep Singh. However,
learned Chief Judicial Magistrate deferred issuance of process observing that matter deserves a 'thorough probe' and required 'in depth inquiry'.
The issuance of process was accordingly postponed and inquiry directed in terms of Section 202 CrPC to ascertain the truth or falsehood of the
complaint. Special Municipal Magistrate (JMIC), Jammu was asked to conduct the inquiry and submit his report on or before 23.02.2012, fully
elucidating thereunder about the truth or falsehood of the complaint. Learned Special Municipal Magistrate (JMIC), Jammu during course of the
inquiry on 18th May, 2012 passed the following order:
18.5.2012
Certain queries were put to the Ld. Counsel for the complainant. I have thoroughly examined the aim and object of Section 202 Cr.P.C. and
enquiry court is not precluded from conducting limited investigation to testify the allegations alleged in the complaint. Since the matter in hand
involves intricate questions of scientific nature and collection of scientific evidence in the matter in order to test the allegations has become inevitable
and imperative. Before proceeding further and embarking upon the contentious issue regarding the alleged C.D. At the outset I deem it proper to
summon the then S.S.P. Jammu, Basant Rath & S.P. Muddasar Latifi, In-charge SIT in case FIR No. 247/09 of P/S Gandhi Nagar, Jammu, to
appear in the court and tender their explanation regarding alleged C.D. and their stand qua the alleged C.D. wherein interrogation of the accused
has been depicted during his custody in the police lockup. Notice to both S.S.P. Basant Rath & S.P. Muddasar Latifi be sent through I.G.P.
Police, Jammu Zone for service. Notice be handed over to SPO of this court for onward transmission to I.G.P. Jammu, for compliance. Put up on
23.5.2012.
Announced
18.5.2012
Special Municipal Magistrate,
Jammu
The petitioners seek quashment of the above reproduced order of learned Special Municipal Magistrate in exercise of inherent powers u/s
561A Cr.PC on the ground that learned Magistrate in his capacity as Inquiry Officer lacked power to summon the petitioners that too when
cognizance of the offence was yet to be taken by the Magistrate before whom complaint was filed. It is insisted that the petitioners cannot be
asked to make a statement touching the allegations levelled by the respondent or to disclose their defence or tender their explanation and take a
stand in the matter regarding the alleged Compact Disk.
The Chief Judicial Magistrate and any other Judicial Magistrate specially empowered in this behalf may in terms of Section 190 of Cr.PC take
cognizance of any offence inter alia upon receiving a complaint of facts which constitutes such offence. The Chief Judicial Magistrate after taking
cognizance of the offence, as provided u/s 192 of the Code, may transfer the case, for inquiry or trial, to any Magistrate subordinate to him. The
Chief Judicial Magistrate or the Magistrate to whom the case is transferred while taking cognizance of the offence on a complaint is to at once
'examine the complaint' and the witness(es) present, if any, upon oath, reduce substance of examination to writing and get the statements so made
signed by the complainant and the witness(es) and also put his signature on such statements. Once the statements of the complainant and the
witness(es) are recorded, the Magistrate may either proceed ahead and consider the complaint and the statements recorded to decide whether
there is or is not in his opinion any sufficient ground for proceeding in the matter. The other course open to the Magistrate is to defer consideration
and himself make further inquiry into the case or direct an inquiry or investigation, to be made by any Magistrate subordinate to him or by a Police
Officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint.
In such a case, the consideration is to be accorded only after outcome of inquiry or investigation is available to the Magistrate.
Once the Magistrate decides to defer consideration and inquire himself into the matter or direct inquiry or investigation in terms of Section 202
of the Code he is required to consider the statement on oath of the complainant and the witness(es) as also the result of the investigation or inquiry
to decide whether there is or is not in his judgment 'sufficient ground' to proceed in the matter. In case on consideration of such matter, the
Magistrate is of the opinion that there is no sufficient ground for proceedings, the e complaint is to be, for the reasons recorded, dismissed as laid
down in Section 203 Cr.PC, However, in case, in the opinion of the Magistrate taking cognizance of offence there is sufficient ground for
proceedings, the Magistrate is required to be issued process, i.e. summons or warrant depending upon the nature of accusation, to secure
presence of the accused so that the trial commences in accordance with the procedure mapped out in the code.
In the present case, the learned Chief Judicial Magistrate decided to defer consideration of the matter and instead pressed into service Section
202 of the Code and directed inquiry into the matter by Special Municipal Magistrate JMIC, Jammu.
The case set up by the petitioners makes it necessary to deal with the powers of the Magistrate or such other person to whom the inquiry of
investigation is entrusted by the Magistrate u/s 202 Cr.PC.
In order to understand the scope, ambit and extent of powers to be exercised by the Magistrate or such other person to whom the inquiry of
investigation is entrusted, it would be appropriate to give a closer look to Section 202 of the Code. It reads;
Postponement for issue of process
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance, or which has been transferred to him u/s
192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person
complained against, and either inquire into the case himself, or, direct an inquiry or investigation to be made by any Magistrate subordinate to him,
or by a police officer, or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint:
[Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on
oath under the provisions of section 200].
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer, such person shall exercise all the
powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.
(3) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.
The object and purpose of directing the inquiry or investigation before the complaint and statements of the complainant of the witness(es) are
taken up for consideration, is to 'ascertain truth or falsehood' of the complaint before proceeding further in the matter.
The Magistrate or such other person to whom the inquiry of investigation is entrusted, is not to deal with the matter as if he is required to
record conviction against the person who is alleged to have committed the offence stated in the complaint or acquit such person of the accusation
made. The inquiry contemplated by Section 202 of the Code is not to be taken as substitute for regular trial. The Magistrate or such other person
to whom the inquiry of investigation is entrusted, is expected to be conscious of the fact that his report is not to result in consequences other than
contemplated by Sections 203 or 204 of the Code. In other words, even where the Magistrate or such other person to whom the inquiry of
investigation is entrusted, is of the opinion that there is substance in the accusation, the only consequence would be to prompt the Magistrate who
has entrusted inquiry, to issue process u/s 204 of the Code. The trial/criminal proceedings to conclude whether the person against whom process
was issued, has or has not committed the alleged offence, is/are to commence only thereafter. It is only after the complaint, crosses the threshold
stage that the complainant would be asked to adduce evidence in support of the complaint and the accused given opportunity to cross-examine the
witness(es) so produced. It is only after the evidence is recorded and the accused given opportunity to explain the incriminatory material, if any,
appearing in the prosecution evidence against him and to adduce evidence in his defence, that a verdict as regards guilt or otherwise of the accused
would be handed down by the trial Court. What is sought to be emphasized is that the Magistrate or such other person to whom the inquiry of
investigation is entrusted u/s 202 of the Code, is not to ascertain the 'truth or falsehood' of the complaint so as to conclude that the person against
whom accusation is made is guilty of the alleged offence. The purpose is to help the Magistrate to whom complaint is made to arrive at a
conclusion whether there is or is not 'sufficient ground' for proceeding in the matter. It follows that the investigation or inquiry contemplated u/s 202
has a limited purpose and the Magistrate or such other person to whom the inquiry of investigation is entrusted is only to take a prime facie view of
the matter, keeping in mind that the purpose of investigation or inquiry is not to hold the person against whom accusation is made guilty or not guilty
but only to enable the Magistrate who has entrusted the investigation or inquiry to arrive at tentative conclusion whether criminal justice system is to
be set into motion and process issued against the person against whom accusation is made or the complaint deserves to be dismissed at its
threshold.
What emerges from the above discussion is that the investigation or an inquiry contemplated u/s is limited in its scope and not allowed to be
treated as substitute for trial and the Magistrate or such other person to whom the inquiry of investigation is entrusted is to make such inquiry as
would enable him to take prima facie view of the matter and ascertain the truth or falsehood of the complaint to enable the Magistrate who has
entrusted the investigation or inquiry to decide whether there is or is not 'sufficient ground' for proceeding and not to record conviction or acquittal
of the person against whom the accusation is levelled in the complaint.
Having said so, let us shift focus to the order impugned in the petition made by learned Special Municipal Magistrate (JMIC), Jammu to whom
inquiry has been entrusted by learned Chief Judicial Magistrate u/s 202 Cr.PC.
The complaint as already stated, alleged that the petitioners and their colleagues' all members of Special Investigation Team (SIT) constituted
to investigate FIR 247/2009 P.S. Gandhi Nagar, while subjecting the complainant/respondent to vulgar, intimidating, abusive and uncivilized
treatment, during his custodial interrogation made video recording of the custodial interrogation so conducted and put it on Web-Site/You Tube
intending, knowing and having reason to believe that by doing so, they would harm the reputation of the respondent. Learned Chief Judicial
Magistrate even after the statements of complainant/respondent and his witness were recorded on oath did not feel satisfied that there was
'sufficient ground' to proceed in the matter and issue process against the petitioners and their colleagues named in the complaint.
Learned Chief Judicial Magistrate, on the other hand, postponed the issue of process and directed an inquiry in terms of Section 202 Cr.P.C.
by Special Municipal Magistrate (JMIC) Jammu. The observations made by learned Chief Judicial Municipal Magistrate while making order dated
4th January, 2012 that 'the matter deserved through probe' for which an 'in-depth inquiry is imperative' played their part in prompting the Special
Magistrate (JMIC) to go beyond the scope of inquiry u/s 202 Cr.P.C. The expression used were unwarranted and could have been ignored
without diluting the mandate of the order. The Chief Judicial Magistrate, once convinced that the matter was grave, ought to have himself inquired
into the matter, as such option was available to him u/s 202 Cr.P.C. However, once Chief Judicial Magistrate decided not to himself inquire into
the matter, but to get it inquired into by a Magistrate Subordinate to him, the order ought to have been clear in its terms that the Magistrate was to
ascertain the truth or falsehood of the complaint, before the Chief Judicial Magistrate proceeded further to decide whether the complaint was to be
dismissed in terms of Section 203 Cr.PC. or process issued in accordance with Section 202 Cr.P.C. Learned Special Magistrate, Jammu taking
clue from the observations made and expression used by the learned Chief Judicial Magistrate went one step further observing that 'the matter
involved intricate questions of scientific nature and collection of evidence' and issued summons to the petitioners to appear in Court, tender their
explanations and take a stand regarding the C.D. attributed to them. Learned Special Municipal Magistrate failed to realise that he was merely
asked to enquire into the matter so as to ascertain 'truth or falsehood' of the complaint for the purpose of issuance of process and not to behave as
a trial Court and substitute the inquiry by a regular trial. The Special Municipal Magistrate in the process has done what was postponed/avoided by
the Chief judicial Magistrate and issued process against the petitioners, though for a purpose other than one contemplated u/s 204 Cr.PC.
The Special Municipal Magistrate was to realise that the object and purpose of Section 202 is, not to drag a person to the Court in a
complaint devoid of substance and wherever a suspicion is nursed by the Magistrate to whom a complaint is made regarding veracity of the
complaint, to avoid summoning the person named in the complaint unless truth or falsehood of the complaint is ascertained. Learned Special
Magistrate has not stopped there but gone a step further by asking the petitioners, who in case result of the inquiry went in favour of the
respondent, were to be treated as accused and punished if the accusation made in the complaint was proved. Learned Special Municipal
Magistrate was expected to be alive to the legal position that the petitioners could not be forced to disclose their defence and take a stand qua the
allegation made against them. Such a recourse may very well amount to testimonial compulsion and not permissible under law. Learned Special
Municipal Magistrate, therefore, fell in a grave error while issuing the summons to the petitioners and asking them to appear in Court and tender
their explanation and take a stand regarding the alleged C.D.
For the reasons discussed, the petition is allowed and the order of Special Municipal Magistrate, to the extent it calls upon the petitioners to
appear in the Court offer their explanation and take stand regarding the Compact Disc (CD) is set aside. The Special Magistrate shall do well to
conclude the inquiry with proper dispatch, and latest within four weeks from the date of receipt of this order. so as to enable the Chief Judicial
Magistrate to take a decision in the matter mapped out in Section 203/204 Cr.P.C.