- (1.) M. K. Mittal, J. This writ petition has been filed for quashing the order dated 28. 4. 2006 passed by Addl. Sessions Judge, Court No. 3, Basti whereby he dismissed the criminal revision No. 142 of 2006 which was filed against the order dated 6. 2. 2006 passed by Judicial Magistrate in Criminal complaint whereby he had dismissed the complaint under Section,203, Cr. P. C.
(2.) HEARD learned Counsel for the petitioner, learned A. G. A. and perused the material on record. Brief facts of the case are that petitioner filed a criminal complaint under Section 166, IPC against Ram Vilas Yadav Sub Inspector, Omkar Singh constable and D. S. Tomar, Station Officer In charge Kotwali Basti alleging that on 22. 7. 2004 in the afternoon Ram Ashish Yadav younger brother of Ram Vilas Yadav came to his house in village Chandidiha which is seven kilometers from Khalilabad and at that time he was not at his house and his wife Smt Bhanmati was there. Ram Ashish Yadav inquired from his wife about him and when she told that he was not at the house he told his wife that he was sent by Sub Inspector Ram Vilas Yadav and he was awaiting for him at P. S. Maghar and the matter could be settled if the payment of Rs. 20,000/- was made. When his wife asked as to about what case he was talking and that he might give in writing. Ram Ashish Yadav gave the details of the case. When he came to his house his wife informed the message of Ram Ashish Yadav. On 23. 7. 2004 at about 11 a. m. when he was in market along with his grand son Amit Kumar, Ram Vilas Yadav and constable Omkar Prasad Singh arrested them and took them to Khalilabad. Ram Laut son of Chandra Bhan was present with the Sub Inspector at the time of their arrest and he had identified them. There was Magistrate in Khalilabad but they were not produced before him and thus the provisions of Article 22 (2) of the Constitution were violated. Arresting Office did not prepare any memo of the arrest and in this manner judgment of Hon'ble Apex Court in the case of D. K Basu v. State of West Bengal, 1997 ACR 290 was violated. He and his grand son were handcuffed at the instructions of Ram Vilas by constable Omkar Prasad. They were lodged at the police station Kotwali. Ram Vilash Yadav asked him to pay Rs. 20. 000/- to settle the case but he did not give any reply. On 24. 7 2004 they were taken out of the lock up at 12 in the day and were handcuffed and were taken to the Court of C. J. M. on foot and when they reached in front of the sitting place of Harish chandra Pratap Singh on the Nyaya Marg, they were photographed with handcuffs. On coming to know about the photography D. S. Tomar, Kotwal came there and asked for removal of the handcuffs. By that time they had reached the Court. However when their turn came and when the Magistrate saw them the hapdcuffs had already been removed. On this ground the complainant contended that the accused persons had violated the law and prayed that they be punished. 3. In support of complaint, complainant examined him self and his grand son and his wife as witnesses under Section 200/202, Cr. P. C. Learned Magistrate after considering the evidence on record came to the conclusion that the' accused were witnesses and therefore they could not be relied and that photograph did not show that the accused had handcuffed the complainant and his grand son. He also held that no independent witness was produced and that the record did not show that no memo of arrest was prepared. The complainant and his grand son were alleged to have committed cognizable offence and case was also registered against them and therefore they could be arrested without warrant and under Section 3, Cr. P. C. Magistrate means Judicial Magistrate and there was no Court of Judicial Magistrate in Khalilabad and therefore the complainant and his grand son could not be produced before the Magistrate in Khalilabad and there was no violation in that regard. Consequently, he dismissed the complaint under Section 203, Cr. PC. Feeling aggrieved, the revision was filed but the revisional Court held that the Magistrate had given correct reasons and that even if the evidence was accepted there was no possibility of the accused being convicted. He did not find any jurisdictional error in order passed by Magistrate and dismissed the revision. Feeling aggrieved this writ petition has been filed. Learned Counsel for the petitioner has contended that there was violation of Article 22 (2) of the Constitution as the complainant and his grand son were not produced before the nearest Magistrate. But according to learned A. G. A. under the Criminal Procedure Code. Magistrate refers to the Judicial Magistrate as defined in Section 3 of the Code. Under Section 167 (1), Cr. P. C. it has been provided that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by Section 57, Cr. P. C. and there are grounds for believing that the accusation or information is well founded, Officer Incharge of the Police Station or the Police Officer making investigation if he is not below the rank of Sub Inspector shall forthwith transmit to the nearest Judicial Magistrate the copy of case diary herein after prescribed relating to the case and shall at the same time forward the accused to such Magistrate. Therefore if the investigation was not to be completed in 24 hours the Police Inspector was required to produce the accused before the Judicial Magistrate. Since no Judicial Magistrate was available at Khalilabad there was no illegality committed by the accused in producing the complainant and his grand son before the Judicial Magistrate at Basti. Therefore this objection of the learned Counsel for the petitioner is not tenable.
(3.) LEARNED Counsel for the petitioner has further contended that learned Magistrate has erred in rejecting the evidence of the complainant and his grand son on the ground that they were the accused. This contention has force. Although the complainant and his grand son were accused in the case in which they were arrested but for the purpose of complaint filed by the complainant their testimony could not be rejected on that ground alone. LEARNED Magistrate was required to weigh its veracity and to assess on merits whether it was acceptable and made out any case or not. It is settled position of law that while considering the evidence under Section 200/202, Cr. P. C. it has to be seen whether any prima facie case is made out against the accused to be summoned under Section 204, Cr. P. C. If Magistrate comes to the conclusion that there is sufficient ground to proceed he shall issue summons in summons case and warrant or summons in warrant case. In case learned Magistrate after considering the statement on oath if any of the complainant and of the witnesses and the result of the inquiry or investigation if any under Section 202, Cr. P. C. is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint recording reasons briefly for so doing. Therefore the Magistrate is to see prima facie sufficient ground for proceedings in the matter and if it is not there only then he can dismiss the complaint. In the case of S. N. Palanitkar and others v. State of Bihar and another, AIR 2001 SC 2960 while considering the scope of Section 203, Cr. P. C, Hon'ble Apex Court has held that the term "sufficient grounds" means satisfaction that a prima facie case is made out against the accused and not sufficient grounds for the purpose of conviction. In this case the petitioner had come with definite case that he and his grand son were handcuffed by the accused when they were arrested and again when they were brought from police station to Court and they were also photographed in the way. Learned Magistrate rejected this plea on the ground that the photograph did not show that the complainant and his grand son were handcuffed at the instance of the accused. Although the accused is not in the photograph but the accused were arrested by these persons and were being brought from the Police Station to the Court of CJ. M. and the photograph shows that they are handcuffed. In the circumstances, there can be no other person to direct for handcuffing of these accused persons except the arresting officer or the person who are bringing accused to the Court. Learned Magistrate should have considered this aspect also. Although when the CJ. M. saw the accused in the Court they were not handcuffed but this was not sufficient to reject their pleas and the learned Magistrate should have considered the contention of the complainant and his grand son that they were handcuffed while they were arrested and were brought from the Police Station to the Court next day.;