J SHANKARAIH Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This petition is to quash the procedure in Cri.M.P. No. 1175/82 on the file of the 1st Addl. Munsif Magistrate, Proddatur. The petitioner, Sub-Inspector of Police, Proddatur-I Town Police Station, filed Cri.M.P. No. 1351 of 1982 for stopping the enquiry sought to be conducted by the Magistrate for the cognizance of an offence of culpable homicide or murder of a person in I Town Police block on the ground that the said Magistrate had already issued summons to the sub-divisional Magistrate and the Deputy Civil surgeon, Government Hospital, Proddatur and recorded their statements and thereafter 6 number of witnesses were also examined either by issuing summons or on their appearance for which the learned Magistrate had no jurisdiction. However, the learned Magistrate was said to be investigating into the matter. Such enquiries can only be made by an executive Magistrate under Section 176 Cr.P.C. In fact, the said enquiry is pending before the Sub-divisional Magistrate. Jammalamadugu. The summoning and examining of any witness can only be made under Section 202 Cr.P.C. on a private complaint under Section 200 Cr.P.C. and therefore, it is not competent for the Magistrate to enquire under Section 190(1) Cr.P.C. into the cause of the death, nor can be examine any witness, nor conduct any investigation. The procedure so adopted was illegal and unknown to law. It is also further submitted that the learned Magistrate had initiated proceedings on the basis of certain pamphlets issued by some political parties which are inimical to the petitioner. For all these reasons, it was prayed that the proceedings initiated may be quashed.

(2.) The learned Magistrate held in the impugned order that the petitioner had no locus standi to move the said petition, as he is said to be conducting a preliminary inquiry and if at all the same could be challenged only at a time when the cognizance is actually taken, under Section 190(1) (c) Cr.P.C. Yet at the end of his order the learned Magistrate says thus :

(3.) It is this order that is challenged by the learned counsel for the petitioner on the ground that under Section 190(1)(c) Cr.P.C. the procedure that is laid down in it, alone must be adopted. If the cognizance of offence is taken by the Magistrate then he has no alternative but to follow the procedure laid down in Section 190(1)(c) Cr.P.C. according to which, the accused will have to be informed that he was entitled to have the case enquired into or tried and in case of its being objected to, then the same will have to be transferred to another Magistrate. So, no preliminary enquiry can be held as is sought to be done by the learned Magistrate. In so far as the power under Section 190(1)(c) Cr.P.C. which stipulates that the Magistrate if receives a private complaint, should adopt the procedure laid down under Sections 200 & 202 Cr.P.C. (Sic). But in this case, the information, according to the learned Magistrate, is that he received the intimation from the Medical Officer Government Hospital Proddatur, to the effect that one person K. Subbarayudu dies in the hospital and again another intimation was received after 55 minutes of the death intimation sent earlier, related to a person sent to the hospital from police lock-up and therefore in such cases it is contended the nearest Magistrate empowered to hold inquest or any Magistrate so empowered, may hold an enquiry into the cause of death and since the Sub-divisional Magistrate is already holding the enquiry into the cause of the death, it is not competent nor any such preliminary enquiry is envisaged by any of the provisions of the Criminal P.C.