RAM PRASAD SINGH Vs. UDAY SHANKAR PRASAD

JUDGEMENT

(1.) ORDER :- This is an application in revision under Ss. 397, 398 and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 7-12-1994 passed by Shri Shyam Badan Singh, Chief Judicial Magistrate, Nalanda at Biharsharif in Complaint Case No. 311-C of 1994 whereby he dismissed the petition of complainant under S. 203 of the Code.

(2.) From the record it appears that the petitioner; as a complainant had filed a complaint petition on 16-7-1994 in the Court of the Chief Judicial Magistrate, Nalanda at Biharsharif against opposite party and six others armed police personnel for their prosecution under Ss. 323, 395, 457 read with S. 34 of the Indian Penal Code. In the complaint petition it was alleged that in the night between the 14th and 15th day of July, 1994 while the complainant was away from his house opposite party No. 2 along with six armed police constables came to his house and asked his son Sashi Pal Keshri (P.W. 1) to open the door. He also started hurling abuses on him. When P.W. 1 did not open the door the accused persons started pushing and dashing against it and ultimately P.W. 1 had to open the door. As soon as the door was opened the accused persons including the present opposite party entered into the house. He disclosed his identity that he is the S.I. of Police, Rahui Police Station. All the accused persons enquired from P.W. 1 as to where the licensed rifle of the petitioner was kept. P.W. 1 informed them that it was kept in a Almirah whose key was with his father (petitioner). On this under the orders of the opposite party, the accused persons broke open the lock of the Almirah and took away the rifle without giving any receipt for the same and without disclosing any reason for doing so. On protest P.W. 1 was abused and assaulted by the opposite party. Thereafter, the accused entered into the room of the wife of the present petitioner broken open the lock of the boxes and took away the ornaments, cash and clothes valued at about Rs. 20,000-25,000/-.

(3.) When the present petitioner returned back to his house on 16-7-1994 at about 10 a.m. his son (P.W. 1) narrated the entire incident to him. The petitioner went to Superintendent of Police, Nalanda to complain but he was threatened that he will be put behind the bars since he was lodging the case against a Police Officer. Out of fear the petitioner returned back and filed a complaint petition before the Chief Judicial Magistrate on 16-7-1994 on which he was examined on solemn affirmation. The learned Chief Judicial Magistrate kept this case in his file for an enquiry under S. 202 of the Code. Four witnesses (P.Ws. 1 to 4) were examined before him on behalf of the petitioner in course of the enquiry under S. 202 of the Code. All of them supported the case of the petitioner. From their evidence as also from the statement of the complainant on solemn affirmation the entire occurrence as alleged stood fully proved and strong prima facie case was made out against the opposite party. The Enquiring Officer Shri S. B. Singh, Chief Judicial Magistrate had never called for any report from the Superintendent of Police, Nalanda nor the Superintendent of Police had any occasion to send any such uncalled for report to him in connection with this case. The learned Chief Judicial Magistrate has, however, by his impugned order dismissed the complaint petition taking absolutely an illegal view of the matter and wrongly relying and referring to a so-called report of the Superintendent of Police, Nalanda which was neither called for nor the Superintendent of Police had any occasion to send the same. The learned Chief Judicial Magistrate had even gone to the extent of disbelieving the evidence of P.Ws. 1 to 4 and in fact he held a mini trial which is not within the scope of an enquiry under S. 202 of the Code. The impugned order is based on extraneous matters like the report of the Superintendent of Police which was absolutely uncalled for and which could not have been taken into account while passing an order under S. 203 of the Code. The learned Chief Judicial Magistrate has gone to the extent of critically examining the evidence of P.Ws. 1 and 4 and wrongly disbelieving the same. On these grounds it has been contended that the impugned order be quashed and further enquiry be ordered.