Court No. - 44
Case :- APPLICATION U/S 482 No. - 13732 of 2018 Applicant :- Surendra Bahadur Singh Opposite Party :- State Of U.P. And 3 Otehr Counsel for Applicant :- Virendra Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. V. Singh, learned counsel for the applicant, and the learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed challenging the order dated 15.1.2018, passed by the Judicial Magistrate, Chandauli in Complaint Case No. 173 of 2017 (Surendra Bhadur Singh Vs. Ram Briksha Yadav) P.S. Mugal Sarai, District Chandauli, whereby the complaint filed by the applicant has been rejected by the Magistrate in terms of Section 203 Cr.P.C.
The facts giving rise to the present application are in a narrow nut shell.
The applicant filed a complaint dated 4.5.2016 in the court of the Chief Judicial Magistrate, Chandauli against Ram Briksha Yadav, three Sub-Inspectors and four constables, P.S. Mugal Sarai who were not named and constable Dilip Yadav in respect of an offence alleged to have been committed on 30.3.2016 at 1:00 p.m. The complaint further contains a recital that an offence under Sections 452, 347, 348, 419, 420, 504, 506 IPC has been committed by the accused persons. Subsequent to the filing of the complaint, the statement of the complainant was recorded by the court concerned in terms of Section 200 Cr.P.C. on 22.8.2017, Thereafter the statement of the witness Sunil Tiwari was recorded on 22.11.2017 and on the same date the statement of another witness namely, Baijnath was also recorded both in terms of Section 202 Cr.P.C. Thereafter by means of the impugned order dated 15.1.2018, the Magistrate rejected the complaint, filed by the applicant.
Learned counsel for the applicant submits that the order dated 15.1.2018, passed by the Magistrate is manifestly illegal. Elaborating his submission, he further submits that the complaint was filed by the applicant against two sets of persons and not only against the Police Officers. Therefore, it is urged that the Magistrate ought to have considered firstly the criminality committed by the private person namely Ram Briksha Yadav and thereafter the criminality committed by the Police Officers, and then pass an order. However without undertaking the aforesaid exercise, the Magistrate by means of the impugned order has rejected the complaint. He further submits that the impugned order is without any reason, and contains a bare conclusion that action complained of is in discharge of official duty and therefore, no cognizance can be taken without prior sanction as provided for under section 197 Cr.P.C. As such, the same is liable to be set aside.
A perusal of the impugned order dated 15.1.2018 will go to show that the Magistrate has not even considered the complaint, the statement of the complainant and the statement of the witness referred to above recorded whose statements were recorded under section 200 and 202 Cr.P.C. The Court further finds that the conclusion drawn by the Magistrate under the impugned order is devoid of any reason. How the Magistrate has reached the conclusion as recorded in the impunged order is not explicit from the perusal of the impugned order dated 15.1.2018. The Apex Court in the case of Mohinder Singh Gill vs Chief Election Commissioner reported in AIR 1978 SC 851) has observed as follows in paragraphs 8:-
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
This Court in the case of Mahboob and Ors. Vs. State of U.P. And Anr., reported in 2017 (2) JIC 320 (All)(LB) after considering the various judgements of the Apex Court, observed that the inquiry envisaged under sections 202 Cr.P.C. is not an empty formality but an obligation is cast upon the court to arrive at a correct conclusion. Paragraph 11 of the aforesaid judgement is relevant for the controversy in hand and is reproduced hereunder:-
" In the present case, the learned Magistrate has not conducted any inquiry so as to satisfy himself that the allegations in the complaint constitute an offence and when considered alongwith the statements recorded and the result of such inquiry. There is ground for proceedings against the petitioners under Section 204 Cr.P.C.. There is nothing on record to show that the learned Magistrate has applied his mind to arrive at a prima facie conclusion. It must be recalled that summoning of accused to appear the criminal court is serious matter affecting the dignity self-respect and image in society. A process of criminal Court cannot be made a weapon of harassment"
The Magistrate has rejected the complaint filed by the applicant simply by observing that the action complained of by the applicant is in discharge of official duty and therefore, no action can be taken without prior sanction as provided for under Section 197 Cr.P.C. What was the action in the complaint and what were the allegations made by the complainant in the complaint which stood supported by the statement of the complainant and his witnesses, has also not been stated. How the Magistrate has arrived at the opinion to reject the complaint in its entirety including the complaint against the private persons, is conspicuous by its absence.
For all the reasons stated herein above, the order dated 15.1.2018 is unsustainable in law. Accordingly, the same is set aside. Consequently, the application succeeds and is allowed. The Judicial Magistrate, Chandauli is directed to decide the above mentioned complaint case afresh, in light of the observations made herein above.
With the aforesaid direction the application is allowed.
Order Date :- 24.4.2018 Arshad