CRIMINAL MISCELLANIOUS No.1651 OF 2006 (In the matter of an application under Section 438(2) of the Code of Criminal Procedure) * * * * * MD.MOHASIN, S/O Late Hazi Shekh Muslim, Resident of Village Basantpur, P.S. Sadar, District Purnea. ……….Petitioner Versus 1.THE STATE OF BIHAR 2.MUSAFIR PRASAD, S/O name not known to the petitioner, the then Sub-Inspector of Police Sadar, P.S. Purnea, District Purnea 3.ARVIND SINGH, S/O name not known to the petitioner, the then Officer Incharge, Sadar Police Station, P.S. Purnea, District Purnea 4.MD. IBRAHIM, S/O name not known to the petitioner, the then Munsi of Sadar Police Station, Purnea, District Purnea. ……..Opposite Parties For the Petitioner : Mr. B.N.P.Singh & Vikas Kr. Singh, Advocate For the State : Mr. Damodar Pd. Tiwary, A.P.P. * * * * * P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA * * * * * Akhilesh Chandra,J. Heard learned counsel for the petitioner, Additional Public Prosecutor for the State and Sri Ramesh Singh, learned counsel for the opposite parties no. 2 & 3, who are named accused in Complaint Case bearing C.A. No. 1260 of 2001. 2. This is an application seeking quashing of order dated 04.08.2004 passed by Chief Judicial Magistrate, Purnea, dismissing Complaint Case bearing C.A. No. 1260 of 2001 and further order dated 22.10.2005 passed by learned IInd Additional Sessions Judge, Purnea, dismissing Criminal - 2 - Revision No. 270 of 2004 arising out of order of Chief Judicial Magistrate aforementioned. 3. The brief facts of the case is that the petitioner had lodged the complaint before Chief Judicial Magistrate, Purnea on 03.12.2001 alleging that on 22/23.10.2001 while he was sleeping at his house, he was called from outside, on queries he was abused. However, on coming out he could be disclosed that he is wanted in connection with Sadar P.S. Case No. 253 of 2001 and the persons calling him are police personnel headed by opposite party no. 2, who had already apprehended three more persons in spite of demand no warrant of arrest was shown rather petitioner was brought to police station followed by his family members. On their repeated queries and requests a sum of Rs. 10,000/- was demanded to release the petitioner; however negotiation was settled at fifty percent. In the morning the money was paid to the officials, who further demanded a petty amount of Rs. 200/- for the ministerial staff that too was paid to them, thereafter putting signature on a blank sheet, the petitioner was released in the next morning after spending remaining portion of whole night and few hours of morning at police - 3 - hazat due to on going puja vacation of the court the petitioner as said could not locate the details of the case. However, when he could be able to examine the records for his utter surprise at no point of time, he was required or any requisition was either sought or issued against him. He made attempts to lodge complaint with high police officials, but nothing could be done, ultimately complaint was filed where in as it appears from the order of the court below altogether eight witnesses were examined, during enquiry out of whom one single witness, who is brother of the petitioner is an eye- witness of demand and payment, rest are hearse. 4. As it further appears from the order of Chief Judicial Magistrate as well as the Revisional Court that on consideration of powers conferred upon police to arrest any person even without warrant and investigation of a case bearing Sadar P.S. Case No. 154 of 2002 against the petitioner apart from some sort of delay dismissed the complaint. 5. Learned counsel for the petitioner submits that petitioner was unauthorizedly apprehended in the month of October 2001, how and under what circumstances any case - 4 - instituted much thereafter shall be considered as an authority to the police to arrest him. My attention was drawn towards Annexure 2 i.e. F.I.R. of Purnea Sadar P.S. Case No. 154 of 2002. Undoubtedly, petitioner was one of the named accused, but the case itself was instituted on 22.05.2002 i.e. roughly seven months after his unauthorized apprehension. Neither learned Additional Public Prosecutor nor could learned counsel representing rest of the opposite parties be able to justify this portion of the order. Here, it would be not out of place to mention that in spite of entering into appearance much before no counter affidavit has been filed on behalf of rest of the opposite parties to rebut the assertions of the petitioner that at the relevant time there was no case pending against him nor he was even suspected in any case, where in police could have been entitled to apprehend him. 6. Learned counsel for the opposite parties tried to led emphasis that at the enquiry stage it was the complainant, who produced oral and documentary evidence and F.I.R. of such case was just filed to create some confusion. No doubt, at initial stage as per prevailing law proposed accused has no locus standi more than watching the - 5 - criminal proceeding and it is the prosecution side to produce evidences oral and documentary, if any. But, at the same time before passing any order, it is incumbent upon the Court authorized to take cognizance to minutely go through the averments made in the complaint petition, if required. Order for enquiry/investigation even by police officials on limited point as provided under Section 202 of the Code of Criminal Procedure which reads as such:- “202. Postponement of issue of Process:- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he - 6 - shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.” 7. In the case in hand, it would have been proper for the Chief Judicial Magistrate, Purnea to exercise his jurisdictional power and at least obtain a report from the concerned police station, whether there was any case pending against the petitioner or not or any allied point, but in stead of doing so only on basis of pendency of a case instituted much after the relevant period dismissed the complaint case and the Revisional Court also could not properly exercised its jurisdiction. 8. In view of the above, none of the two orders of the courts below are sustainable, accordingly quashed and matter is remitted for further enquiry to the court below in the light of observations made above and in accordance with law. Patna High Court Dated: 21st September, 2010 Praveen/- (Akhilesh Chandra, J.)