S J SINGH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Can a Magistrate who has been genuinely cited as a witness in a complaint, which might ultimately lead to disclosure of an offence triable by Sessions Court, issue process under Sec. 204 of the Code ? This precisely is a question which has been posed in this petition.

(2.) The complaint which has been referred to by the petitioners recites that the deceased Husen Mamad Bhadala was the grand son of the complainant Karimabai Haji Abdeman Sale Bhadala. Although the deceased Husen Mamad Bhadala was innocent, he was apprehended by the petitioners who have been shown to be the accused Nos. 1 and 2 in the complaint, on 15/07/1985 from Mandvi town. It is alleged in the complaint that said Husen Mamad Bhadala was beaten and ill-treated in the manner described in the first paragraph of the complaint. He was also made to move in the streets of Mandvi town in a condition described in the said para. Thereafter, he was taken to Bhuj on 16/07/1985. At that time he was accompanied with one Mr. Anvar Abdulla Sama, who has been cited as a witness in the complaint. Even at Bhuj said Husen Mamad Bhadala was severely beaten both on his head and on whole of his body. The fact that he was apprehended on 15/07/1985 was published in the newspaper 'Kutch Mitra'. As per law he ought to have been produced before the nearest Magistrate within a period of 24 hours of his apprehension. Instead of so acting, the petitioners and the third accused shown in the compiaunt Mr. Bhati, had severely beaten him for the purpose of extracting confession of some offence. At about 5-30 O'clock in the evening on 17/07/1985 the complainant's daughter, i.e., the mother of said Husen Mamad Bhadala had preferred an application under Sec. 97 of the Code, before the learned Chief Judicial Magistrate before whom the complaint in question was filed.

(3.) In para 2 of the complaint in question it is recited that while aforesaid Husen Mamad Bhadala was in custody of the petitioners and third accused shown in the complaint, all the said accused had severely beaten him resulting in serious injuries to him, leaving him in a serious condition. Consequently he was taken to Dr. Arya of village Madhapar of Bhuj Taluka and he was treated with injections, medicines and glucose. However, his condition was so serious that he was ultimately required to be taken to the General Hospital at Bhuj where after examining him the Doctors expressed that the condition of said Husen Mamad Bhadala was extremely serious and it was advisable to remove him to Ahmedabad. Necessary certificate for treatment at Ahmedabad as well as necessary transfer certificate was issued from the General Hospital, Bhuj. Even then the accused persons including the petitioners had forsaken said Husen Mamad Bhadala instead of taking him to Ahmedabad. He therefore, went to Mandvi and had taken treatment in the Government Hospital at Mandvi and thereafter had taken treatment in Gokul Hospital. However, since even there his condition was serious, he was brought to Bhuj where he had lodged a private complaint before the learned Chief Judicial Magistrate before whom the complaint in question was given. That complaint was given Criminal Case No. 780 of 1985. In that complaint also it was stated that as the condition of said Husen Mamad Bhadala was serious he was lifted by four persons for the purpose of producing him before the learned Chief Judicial Magistrate, who recorded his statement on his complaint. At that time he was not able to stand and had to depose to the facts of his complaint by sitting. After giving complaint before the learned Chief Judicial Magistrate, he had gone to the dispensary of Dr. Navlekar for treatment. However, observing his condition to be serious the Doctor transfused blood to him. However, finding that his condition was very serious Dr. Navlekar informed the relatives to take him home. It is finally recited that he had expired on his way home. It is, therafore, alleged that said Husen Mamad Bhadala had died as a result of the beating and torture resorted to by the accused persons including the pstitioners. In the rest of the paragraphs of the complaint various pieces of evidence have been stated. In para 7 list of witnesses is given. At Item Nos. 8 to 11 following witnesses are named : Shri Pathan, peon, Chief Judicial Magistrate Court, Shri Fakirmamad, peon of the Court of Chief Judicial Magistrate, Shri N. R. Pathan, Chief Judicial Magistrate, Kutch-Bhuj (himself) Concerned Clerk for production of the complaint filed by the Husen Mamad Bhadala, who is hereinafter referred to as 'the deceased' including the statement recorded before the learned Chief Judicial Magistrate. 3A. The aforesaid complaint was filed on 31-8-1985 and on the same day the learned Chief Judicial Magistrate had taken the cognizance and stayed further proceedings under Sec. 210(1) of the Code, as the police was investigating the matter with regard to the same facts as are disclosed in the complaint. The learned Chief Judicial Magistrate while staying the further proceedings of the complaint directed the concerned Police Sub-Inspector to submit his report under Sec. 173 of the Code and to remain present before the learned Chief Judicial Magistrate on 15/09/1985. It further appears from the certified copy annexed with the petition that on llth February, 1986 the complainant was examined on oath. It appears that the final report under Criminal Register No. 1-91/85 was received and in that police asked for Class-A Summary (Jdo-y-vtf). It also appears from the order of the learned Chief Judicial Magistrate that such a summary was asked as till that stage it was not fixed as to who had beaten the deceased and as a result of whose beating he had died and for the purpose of keeping the investigation pending, Class-A Summary was sought for by the police. It is doubtful whether the report so received by the learned Chief Judicial Magistrate was a final report or an interim report. However, that is not of much relevance for the purpose of decision in this matter. It is observed by the learned Chief Judicial Magistrate that he thought it fit to further inquire into the matter. He, therefore, proceeded to examine 10 witnesses. The summary of such examination has been noted in para 3 of the order. It does not appear from the order of learned Chief Judicial Magistrate as to what happened to aforesaid four witnesses inclusive of learned Chief Judicial Magistrate himself, who was cited as a witness in the complaint. The ultimate order that was passed on 3/02/1987 by the learned Chief Judicial Magistrate was to issue process of arrest by taking the complaint on record in so far as the petitioners were concerned. He however dismissed the complaint against the accused No. 3-Mr. Bhati, Custom Inspector, Bhuj, as there was no sufficient reason to proceed against him further. It is against this order of 3-2-1987 that the petitioners have approached this Court by way of this petition under Sec. 482 of the Code.