FANINDRA KUMAR DAS Vs. RAHAT BUX CHOUDHURY,

JUDGEMENT

(1.) This Rule was issued on 15 August 1932 and calls on the District Magistrate of Midnapore and the opposite parties to show cause why the order of the Additional District Magistrate dated 13 June 1932, dismissing the petitioner's complaint under Section 203, Criminal P.C., should not be set aside. The opposite parties are described as: Rehat Bux Choudhury, Sub-Inspector of Police, and Sheikh Kalu,. Police Constable, and two other Police Constables of Midnapore Thana.

(2.) On 30 April 1932 Mr. Douglas, the District Magistrate was assassinated at Midnapore. At about 11 p.m. that night the petitioner who describes himself as a "home internee" was arrested and taken to the Midnapore Thana. It is admitted that he was then to all appearance in good health. He was produced before a Deputy Magistrate on 1 May, and on 2nd May remanded by the Additional District Magistrate to police custody until 5 May. Later in the evening of 3 May the Civil. Surgeon, Captain Drummond, was summoned to the thana to attend the petitioner. He found the petitioner in a hysterical condition and exhausted. There were also some bruises visible on his person. They were not severe nor did they require treatment, but according to Captain Drummond they must have been due to some sort of violence. The petitioner on that occasion made no complaint against the police. The next morning, 4 May, Captain Drummond saw the petitioner again and found him suffering from fever. At 6 p.m. the petitioner was removed to hospital where he developed pneumonia. He was discharged from hospital on 21 May 1932. On that day he filed a written petition of complaint in Bengali and was examined in support of it on solemn affirmation. He stated that he was severely beaten at the thana on the evening of 3 May by "one Daroga known as Choudhury Saheb and three Sepahis." The Additional District Magistrate referred the complaint under Section 202, Criminal P.C., to the Sub-divisional Officer for inquiry and report. For reasons that are not material the inquiry was eventually held by Mr. Islam, Deputy Magistrate, who submitted his report on 27 May. On 13 June the Additional District Magistrate dismissed the petitioner's complaint under Section 203, Criminal P.C. On 25 June 1932 the Sessions Judge of Midnapore refused to interfere with the order of dismissal.

(3.) The first ground on which the Rule has been issued is that the Deputy Magistrate acted illegally in examining the first accused and the police witnesses in the absence of the petitioner and his lawyers and in calling for a report from the Superintendent of Police. Mr. Islam's report shows that on 25 May he examined Bhupendra Nath Banerjee, the officer in charge of the Midnapore Police Station, Rehat Bux Choudhury, the Sub-Inspector of Police, Narayangarh, and Kiran Charan Raha, Circle Inspector. It is said that Rahat Bux Choudhury was examined on solemn affirmation but this is denied, I think rightly, by the opposite parties. The story told by those deponents was that Rahat Bux Choudhury was in Midnapore by chance on 3 May. Bhupendra Nath Banerjee asked him to assist in the investigation into the murder of Mr. Douglas by examining the petitioner. Rahat Bux Choudhury consented, but while he was questioning the petitioner the latter became violent and hysterical and assaulted Rahat Bux, who called to the constables to secure the petitioner. This was done but the petitioner's struggles were so violent that he sustained injuries. Ice was sent for, and the Circle Inspector communicated with the Superintendent of Police, Mr. Evans, who saw the petitioner in the company of the Civil Surgeon. The procedure adopted by the Magistrate has been vigorously criticized by learned Counsel for the petitioner. We have been referred to Baidya Nath Singh v. Muspratt (1887) 14 Cal 141, Bhim Lal Sah V/s. Emperor (1913) 40 Cal 444, Balai Lal Mukherjee V/s. Pasupati Chatterjee (1917) 17 Cr LJ 396 and Chandi Charan Mitra V/s. Manindra Chandra Roy AIR 1923 Cal 198. It is suggested that a Magistrate to whom a complaint is referred for inquiry acts illegally if he examines or questions the person complained against. I cannot agree with this; no such limitation is suggested in the language of the section and I see no reason to dissent from the view expressed in In re Virbhan Bhagaji AIR 1928 Bom 290 that such a procedure is not illegal. It appears to me that to prevent the Magistrate from questioning the person complained against, at any rate for the purpose of ascertaining what is the answer to the charge, if ha has one, would be in many cases to render the inquiry futile. It is easy to imagine cases where information that the accused alone can furnish will conclusively prove the falsity of the complaint.