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Judgment
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. Tirupattur, in Crl.M.P. No. 1272 of 1984 dated 21st September, 1984, dismissing the Petitioner's complaint.
It is necessary to state a few facts of the case for the appreciation of the point in dispute. The Petitioner herein filed a complaint against the Respondent who is the Sub Inspector of Police, Law and Order, Jolarpet 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 committed various offences. The complainant reported the matter to the Respondent who is said to have neglected or refused to take any action against the accused. Thereupon, 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 Criminal Procedure Code. It is alleged that even then the Respondent would not register a case nor investigate into the complaint, thereby 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 complaint to the Superintendent of Police, North Arcot. Vellore for appropriate action, but even then the Respondent was supinely inactive. This inaction on 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 (filed by the Petitioner herein) on file or disposing of the same according to law, registered it as Criminal M.P. 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 Pet itioner/complainant was asked to be present on all the hearings without any progress in the enquiry. Ultimately, the lower court sent a notice to the Respondent/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 hearings 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 Criminal Procedure Code. The Petitioner's counsel filed a detailed written argument 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 wilfully disobeyed the order of the Court and there is no Prima facie 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/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 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 Petitioners and disposing it of according to law, has curiously treated the complaint as a Criminal Miscellaneous Petition, numbered it as Crl M.P. 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 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 this 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 Magistrate should have hauled up the Respondent for his non-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 received 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 any communication addressed to the court by the Respondent/accused, and he should have followed the procedure laid down in the Criminal Procedure Code.
The next impropriety of the lower court is that the proceedings in Crl. M.P. No. 1272 of 1984 was adjourned for 14 hearings from 22nd February, 1984 to 24th September, 1984. Obviously, the Respondent/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 ununderstandable. 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 Assis tance 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 duly taken on file. For another, it is 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/accused was committed by him while acting in the discharge of his official duties or otherwise.
Lastly, yet another impropriety committed by the Magistrate is 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 Criminal Procedure Code. Further, the complaint was not even registered by the Respondent, and set 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/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 Crl. M.P. No. 1272 of 1984 has to be and is hereby quashed unreservedly. The only course now open 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.