This Criminal Revision has been filed against order passed by the Judicial Magistrate No.1, Dindigul, in Crl.M.P.No.2352 of 2016 in C.C.No.492 of 2012, dated 05.08.2016. http://www.judis.nic.in 2

2.The respondent filed a private complaint in Cr.M.P.No. 368 of 2009 before the Chief Judicial Magistrate, Dindigul under Sections 199 and 200 Cr.P.C against the petitioner and four others persons, who are all police officials stating that on 02.04.2008 at 2.45 pm, the 5th accused picked the complainant and attacked him for no reason and he was taken to the police station and there he was subjected to harassment and inflicted several injuries by all the accused. The learned Chief Judicial Magistrate, Dindigul has taken the complaint on file under Sections 341 , 294(B) , 323 and 506(i) IPC and conducted enquiry under Section 202 Cr.P.C, took cognizance and issued summons under Section 204 Cr.P.C and posted the case for framing charges under Section 246 Cr.P.C. In the meantime, the petitioner and two others filed Crl.M.P.No.2352 of 2016 under Section 245(1) Cr.P.C to discharge them from the case. The learned Judicial Magistrate without appreciating the evidences referred to in Section 244 Cr.P.C and without properly appreciating the grounds raised by the petitioner, dismissed the discharge petition, by its order, dated 05.08.2016 in Crl.M.P.No. 2352 of 2016. Aggrieved by the order of the learned Judicial Magistrate, this revision petition is filed. http://www.judis.nic.in 3

3.The learned counsel for the petitioner submitted that the complaint should not have been taken cognizance without previous sanction of State Government as stated under Section 197 Cr.P.C and the question of discharge of official duty can be decided at any stage of the case, when there is direct evidence on record to prove that the alleged act of the accused was in discharge of official duty and the very purpose of Section 245 Cr.P.C is to discharge the accused on considering the evidence referred to in Section 244 Cr.P.C and the same has been denied to the petitioner in-spite of material evidence and that the learned Judge failed to note that PW1 in his cross examination has specifically admitted that a case in Crime No.247 of 2008 was registered against him by the Dindigul Town West Police Station and also deposed that the private complaint was lodged for the act of the petitioner and others in connection to the case registered against them and there is no evidence to show cause that the accused committed the alleged act in discharge of their official duty and the Court below failed to appreciate the judgment quoted on the side of the petitioner, which reiterates that Section 197 Cr.P.C must be invoked even in cases where the act committed even though not directly in discharge of duties, but it can also be invoked if it is so integrally http://www.judis.nic.in 4 connected with or attached to office as it is inseparable from it. It is further submitted by the learned counsel for the petitioner that the petitioner has already retired from his official capacity and he has not faced or committed act wanting disciplinary action and the present case filed by the complainant initiated only to tarnish the image of the petitioner and also to make suffer the petitioner during his period of retirement. In support of his contention, the learned counsel for the petitioner submitted the following decisions:-

4.The learned counsel appearing for the respondent submitted that the trial court has rightly pointed out that there is sufficient prima facie to frame the charge against the accused persons and posted the case for framing the charges and dismissed the discharge petition filed by the petitioner and prays for dismissal of the revision. In support of his contention, the learned counsel appearing for the respondent submitted the following rulings:-

5.Order made in Crl.O.P(MD)No.4315 of 2006, dated 24.11.2006 (S.Raman and two others Vs. Ayyappan ).

5.Heard both sides and perused the materials available on record.

6.It is seen from the records that the respondent filed a private complaint in Crl.M.P.No.368 of 2009 before the Chief Judicial Magistrate, Dindigul under Sections 199 and 200 Cr.P.C against the petitioner and four others persons, who are all police officials. The allegation of the respondent in the private complaint is that on 02.04.2008 at 2.45 pm, the 5th accused picked the complainant and attacked him for no reason and he was taken to the police station and there, he was subjected to harassment and inflicted several injuries by all the accused. The learned Chief Judicial Magistrate, Dindigul has taken the complaint on file under Sections 341 , 294(b) , 323 and 506(i) IPC and conducted enquiry http://www.judis.nic.in 7 under Section 202 Cr.P.C, took cognizance and issued summons under Section 204 Cr.P.C and posted the case for framing of charges under Section 246 Cr.P.C. In the meantime, the petitioner and two others filed Crl.M.P.No.2352 of 2016 under Section 245(1) Cr.P.C to discharge them from the case. But the learned Judicial Magistrate dismissed the discharge petition by its order, dated 05.08.2016.

7.In this case, it is to be decided that before receiving the report under Section 202 Cr.P.C, whether the Chief Judicial Magistrate is entitled to take cognizance of the case and issued summons to the accused and examined the witnesses.

8.The learned counsel appearing for the petitioner submitted that what are all the power of the Magistrate under Section 202 Cr.P.C and for that, the learned counsel submitted a ruling reported in (2015)6 SCC 439 ( Ramdev Food Products Private Limited vs. State of Gujarat ). In that case, the Hon'ble Apex court has held in para 14, 15 and 16 as follows:-

“14......Postponement of issue of process.-(1)Any Magistrate, receipt of a complaint http://www.judis.nic.in 8 of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192 , may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, 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:

Clause (3) provides that if investigation is by a person other than a police officer, he shall have all the powers of an officer in charge of a police station except the power to arrest.”

9.Further, the view taken in the above judgment, has been taken in Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonkar (AIR 1960 SC1113 : 1960 Crl LJ 1499) and it was observed as follows:-

10.On coming to the case on hand, the learned Chief Judicial Magistrate without receiving the report under Section 202 Cr.P.C, took the cognizance and issued summons to the witnesses and transferred the case to the Judicial Magistrate No.1, Dindigul and the learned Judicial Magistrate No.1, Dindigul dismissed the discharge petition filed by the petitioner. In this case, the learned Chief Judicial Magistrate has not sent any reminder to the Superintendent of Police to send the report under Section 202 Cr.P.C. Once the Magistrate call for the report under Section 202 Cr.P.C, he has to wait for the report under Section 202 Cr.P.C. But the learned Chief Judicial Magistrate without receiving the report under Section 202 Cr.P.C, took the cognizance and issued summons to the witnesses. Hence, it is held that the learned Magistrate is to be directed to dispose of the case on the basis of the report under Section 202 Cr.P.C http://www.judis.nic.in 12

11.Further, on perusal of 202 Cr.P.C report, the learned Chief Judicial Magistrate obtained the report under Section 202 Cr.P.C and took cognizance and transferred the case to the Judicial Magistrate No.3, for disposal. The jurisdictional Judicial Magistrate No.3, Dindigul, received the report under Section 202 Cr.P.C and disposed the private complaint and the accused filed the discharge petition, which was dismissed. Hence, this court is of the considered view that once the Magistrate call for the records under Section 202 Cr.P.C, it is the bounden duty of the Magistrate to receive the report from the concerned police official. In this case, the learned Chief Judicial Magistrate has not sent any communication to the Superintendent of Police, to send the report as quickly as possible. But the learned Chief Judicial Magistrate transferred the case to the Judicial Magistrate No.1, Dindigul for disposal. The petitioner filed discharge petition and the learned Judicial Magistrate No.1, Dindigul dismissed the same. Hence, without obtaining report under Section 202 Cr.P.C , the case was taken on file is not correct. Hence, the impugned order passed by the learned Judicial Magistrate No.1, Dindigul is liable to be set aside and accordingly, it is set aside.

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12.In the result, this criminal revision is allowed. The impugned order passed by the Judicial Magistrate No.1, Dindigul, in Crl.M.P.No.2352 of 2016 in C.C.No.492 of 2012, dated 05.08.2016 is set aside and the case is remitted back to the learned Judicial Magistrate No.1, Dindigul for fresh disposal. The Judicial Magistrate No.1, Dindigul is directed to dispose of the private complaint on the basis of the report received under Section 202 Cr.P.C and in accordance with law, after giving reasonable opportunity to the parties concerned, within a period of two months from the date of receipt of a copy of this order and report the same to the Registry without fail.

19.03.2019 Index:Yes/No Internet:Yes/No er To, The Judicial Magistrate No.1, Dindigul.

http://www.judis.nic.in 14 T.KRISHNAVALLI,J er Judgment made in Crl.R.C(MD)No.583 of 2016 19.03.2019 http://www.judis.nic.in 15 http://www.judis.nic.in