Gunturu Kotaiah vs Radhakrishnamurty, S.I. of Police Lalapet Guntur and Others

Sharfuddin Ahmed, J.—The grievance in this Criminal Revision Case is that the Additional Ist Class Magistrate, Guntur while discharging the accused Nos. 2 to 5 has referred the case u/s 202, Criminal P. C. to the Additional Judicial II Class Magistrate, Guntur for ascertaining the truth or falsehood of the complaint so fat as. A.1 is concerned. It is urged that once the Magistrate has exercised the discretion vested in him u/s 203, Criminal P. C., in respect of A.2 to A.5, he was not competent to go back to Section 202, Criminal P. C. and refer the matter to the Judicial Second Class Magistrate for ascertaining the truth or falsehood of the complaint in respect of A.1.

The learned Sessions Judge in para 4 of his judgment has found that the order of the 1st Class Magistrate as against A-2 to A.5 is no doubt u/s 203, Criminal P. C., but so far as A-1 was concerned, be committed an irregularity by taking the case on file under Sections 323 and 324, I. P. C. and then referring it to the II Class Magistrate u/s 202, Criminal P. C., but he refused to interfere with the order of the Magistrate on the ground that no prejudice has been caused to the accused.

It appears that the complaint was filed against five persons under various sections of the Indian Penal Code before the Principal Judicial Second Class Magistrate, Guntur. The learned Magistrate having regard to the nature of the offences and Involvement of a Police Officer deemed it fit to refer the matter to the Sub-Divisional Magistrate either to transfer the case to his own file or to direct an enquiry by the Superintendent of Police or by any other Magistrate. On that submission the case was transferred to the Additional Munsif Magistrate, Guntur. The said Magistrate received the case on transfer and took the case on file against A-1 under Sections 323 and 324, I. P. C. and forwarded the same to the Additional Judicial Second Class Magistrate, Guntur u/s 202, Criminal P. C. for enquiry. Aggrieved by this order, the complainant went in revision to the learned Sessions Judge and as observed above, the learned Sessions Judge refused to interfere with the said order.

The main argument advanced on behalf of the petitioner complainant is that once the complaint has been dismissed so far as A.2 to A.5 were concerned with reference to Section 203, Criminal P. C., as held by the learned Sessions Judge the 1st Class Magistrate was not competent to refer the matter u/s 202, Criminal P. C. to the Additional Second Class Magistrate for enquiry. Obviously, the order of the Magistrate, so far as A.2 to A.5 are concerned, was made u/s 203, Criminal P. C, as a result of applying his mind to the facts of the case. Either it was that the complaint bee not revealed any offence against the persons or that there were no sufficient grounds for proceeding against them. The power was exercised u/s 203, Criminal P. C. In those circumstances, the 1st Class Magistrate should have held an enquiry u/s 203, Criminal P. C. himself in regard to the allegations against A.1 without resorting to the procedure contemplated u/s 202, Criminal P. C.

The position arising out of the said order is that in so far as A.2 to A.5 are concerned, the Magistrate has applied his mind and made an order u/s 203, Criminal P. C., but in respect of A.1 he has gone back to the procedure contemplated in Section 202 Criminal P. C. I think, as urged by the learned Counsel for the petitioner, this is not strictly in accordance with law. Further, I find that the 1st Class Magistrate his not recorded the reasons for postponing the issue of process against A.1. The position has been considered in the case of Emperor Vs. Durga Prasad and Others, wherein it has been observed as follows:

Under Section 202. the Magistrate had the option of only one out of two alternatives, viz., either to enquire into the case himself, or direct a previous local investigation. There is nothing in Section 202, which empowered the learned Magistrate to have recourse to Both the alternatives. His order, therefore, directing local investigation is irregular.

In the instant case, the Magistrate while purporting to act u/s 203, Criminal P. C. has also called for an enquiry from the J. S. C. M. u/s 202, Criminal P. C. I think, in cases on transfer the question of taking fresh cognizance does not arise and, therefore, the procedure adopted by the Magistrate is cot in accordance with law. Accordingly the revision case is allowed, setting aside the order of the Magistrate calling for a report from the Additional Judicial Second Class Magistrate.

Further, it is to be noted that on the submission made by the Principal Judicial Second Class Magistrate, Guntur the case was transferred to the 1st Class Magistrate. The Magistrate in his turn has again sent back the case to the Addl. J. S. C. M. which clearly amounts to circumventing the object of referring the case to the 1st Class Magistrate. The 1st Class Magistrate is directed to send for the record and hold an enquiry against A.1 as contemplated, u/s 202, Criminal P. C. (if necessary).