EMPEROR Vs. BHIKA HOSSEIN

JUDGEMENT

(1.) This was a Reference made by the learned Sessions Judge of Dinajpur recommending that the order passed by the Deputy Magistrate at head-quarters under Section 476, Criminal Procedure Code, directing the trial of the complainant under Section 211 and sending the case to the District Magistrate for orders should be set aside. At the same time, he informed us that there was a motion before him to order further inquiry into the matter. He did not think it proper to deal with it himself because it might prejudice our order in regard to the matter under Section 476, Criminal Procedure Code. He says it seemed to him that the proper course to take was to submit this Reference for decision before proceeding to dispose of the other motion.

(2.) We need not, therefore, go into the point of necessity for further inquiry under Section 203, as we have dealt with it in a similar case to this in a somewhat lengthy judgment delivered this morning, in which we pointed out that the Government Circular, with regard to. inquiries into complaints against Police officers, has been greatly misunderstood, that that Circular cannot be held to refer to any kind of local investigation under Section 202, Criminal Procedure Cods, and that the local investigation which it mentions is a full and complete judicial inquiry on the spot after process issued and hearing witnesses on both sides and taking the explanation of the accused person.

(3.) It is clear that the accused person cannot be called upon for explanation nor can he be called upon to produce witnesses unless and until there is ground for issuing process against him, and the law says that if upon complaint there is ground for issuing process against him, the Magistrate shall issue summons for the attendance of the accused. That is. Section 204. The idea seems to have been that the Police officer might have an opportunity of defending himself and getting his accused charged with bringing a false case without a trial, that is to say, judicial trial. Now that would be as unfair to the complainant as the converse procedure would be to the accused. We must take it that the Government intended that both sides should have full and free justice, and, therefore, when a complaint is made against a Police officer of a certain offence, under Section 2)2, the Magistrate who entertains the complaint must either go to the spot and make inquiry himself and issue process if he finds it necessary to call upon the accused to answer to. anything, or if he makes it over under Section 192 to any other Magistrate of the first class, that Magistrate must be vested with full seizin of the case and must continue the inquiry up to the necessary order of discharge, acquittal or conviction, as the case may be. But that is hardly the point which the learned Judge has referred to us. This is a point which he will have to deal in the light of the remarks which we have just made.