Patna High Court – Orders
Umeshwar Dubey vs The State Of Bihar And Ors on 10 January, 2025
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.47296 of 2015
Arising Out of PS. Case No.-262 Year-2014 Thana- AURANGABAD COMPLAINT CASE
District- Aurangabad
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Umeshwar Dubey S/o Late Sant Kishore Dubey resident of Kara Tola Dubey
Bigha , P.S. Obra, District - Aurangabad
... ... Petitioner/s
Versus
1. The State of Bihar
2. Krishna Vijay Dubey S/o Late Santranjan Dubey
3. Surendra Singh S/o Indradeo Singh
4. Vinay Singh S/o Indradeo Singh
5. Indradeo Singh S/o Late Baldeo Singh
6. Abhay Singh S/o Digamber Singh All are resident of village - Kara Tola,
Dubey Bigha, P.S. Obra, District - Aurangabad
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Krishna Prasad Singh, Sr. Advocate
Mr. Rakesh Singh, Advocate
For the O.P. No.2 to 6 : None
For the State : Mr. Nityanand, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL ORDER
12 10-01-2025
Heard Mr. Krishna Prasad Singh, learned senior
counsel appearing for the Petitioner and Mr. Nityanand, learned
APP for the State.
2. No one appears on behalf of O.P. No.2 to 6.
3. The instant criminal miscellaneous petition has
been filed under section 482 of the Code of Criminal Procedure
(in short ‘Cr.P.C.’) with a prayer to quash the order dated
09.04.2015 passed in Complaint Case No. 262 of 2014 by which
the learned S.D.J.M, Daudnagar, Aurangabad has taken
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cognizance of the offences under Sections 323 and 504 of the
Indian Penal Code (in short ‘IPC‘) against the O.P. No. 2 to 6
and has also taken cognizance of the offence under Section 379
of IPC against the O.P. No.2 in addition to the above offences.
4. At the outset, it is submitted by Mr Krishna Prasad
Singh, learned senior counsel appearing for the petitioner that
though the LCR called for by this Court has not been received
but however, the relevant ordersheets of the Complaint Case No.
262 of 2014 have been filed with this petition and the same are
sufficient to decide this matter in view of the legal question
raised by the petitioner.
5. While assailing the order impugned the learned
senior counsel has mainly argued that the petitioner filed a
complaint against nine persons including the then S.H.O of
Obra P.S. and the then Circle Officer of Obra Circle and the
learned Magistrate despite having proceeded under Section 200
of Cr.P.C. on the complaint of the petitioner by order dated
22.10.2014 directed the investigation to be made by a police
officer to find out whether the alleged act of the accused Anil
Kumar Choudhary, then Circle Officer and Praveen Kumar then
S.H.O of Obra police station had been committed in private
capacity or in the capacity of a public servant which was not a
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legal order as it is the settled position of law that on a complaint
the Magistrate can either enquire the case himself or direct the
police to investigate the matter and anyone of the said two
modes has to be chosen by him but he cannot take recourse of
both the modes simultaneously. In support of this submission
learned senior counsel has placed reliance upon the judgment of
this Court passed in the case of Phulena Prasad vs. The State
of Bihar & Others reported in (2002) 4 PLJR 232 and
paragraph no. 6 and 7 of this judgment upon which reliance has
been placed are being reproduced as under:-
” 6. So it is clear that the learned Magistrate
on receipt of complaint which was made over to
him under section 192(1) Cr. P.C. chose the mode
of enquiring the case himself but after recording
the statement of complainant on S.A. and
statements of four more witnesses he asked the
police to submit a report regarding the alleged
occurrence with a direction to search out the
affected victim. It means that the learned S.D.J.M.
took the recourse of both the modes prescribed
under section 202 Cr. P.C. i.e., “either to enquire
into the case himself or direct investigation.” In
my opinion, the procedure followed by learned
S.D.J.M. in taking the recourse of both the modes
is not correct and permissible by section 202 Cr.
P.C. which clearly lays down that the Magistrate
will “either enquire the case himself or direct the
investigation to be made by a police officer or by
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The use of word “Or” makes it clear that any one
of the modes out of the two has to be chosen. I am
unable to accept the submission made on behalf of
opposite parties that the learned Magistrate
thought it necessary to make search of the victim
boy and, therefore, by directing the police to
submit report he has not committed any error. Had
the Magistrate taken help of police only in respect
of search of the victim the matter would have
been different but in this case the order
(Annexure-A series of counter-affidavit) of the
Magistrate by which he directed the police to
report clearly shows that he ordered the police for
submitting a report regarding the alleged
occurrence with a direction to search out the
victim. So it is clear that he did not simply asked
the police to search out victim boy but he also
asked the police to submit report regarding the
alleged occurrence. The impugned order dated
7.4.99 passed by the learned S.D.J.M. dismissing
the complaint under section 203 Cr. P.C. which
has been affirmed by the learned 2nd Addl.
Sessions Judge by his order dated 31.7.99 passed
in Cr. Revision No. 106/99 shows that while
dismissing the complaint of petitioner he took into
consideration the report submitted by the police
that the complainant had himself kept his son
secretly and had filed a false case against opposite
parties on account of land dispute. It is true that in
the concluding line of the order the learned
S.D.J.M. has mentioned that considering the facts
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and circumstances of the case, the evidence
adduced by complainant under section 202 Cr.
P.C. and report submitted by police the complaint
is dismissed but then after going through the
entire order it appears that main consideration for
dismissing the complaint was the report submitted
by the police. It is not only that the Magistrate in
dealing with the complaint adopted both
alternatives provided by section 202 Cr. P.C.
against the provision of the law, his order
directing the police to investigate suffers from
another error. In the complaint petition itself the
petitioner has clearly stated that he had gone to
police station to lodge the case but he was not
heard because the police is in collusion with the
accused persons. In such circumstance directing
the police to investigate and submit a report was
not proper.
7. In the present case I find that the
procedure as laid down by section 202 Cr. P.C.
has not been correctly followed and the order
passed by the learned S.D.J.M., Gopalganj
directing investigation by police after enquiring
into the case himself is not in accordance with
law. It is a fit case which requires the exercise of
inherent power by this Court under section 482
Cr. P.C.”
It is further submitted by the learned senior counsel that
when an allegation is made against a police officer by way of
complaint then such complaint should be handled with the
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greatest care and caution and it would be improper to call for a
report from the accused police officer or his superior or giving
an order to investigate by the police and in such type of matter
enquiry should be conducted by the Magistrate himself. In
support of this contention learned senior counsel has placed
reliance upon the judgment of this Court passed in the case of
Rajeshwar Yadav vs. The State of Bihar & Others reported in
(2004) 2 PLJR 699.
6. Mr. Nityanand, learned APP for the State has
opposed this petition and submits that the order impugned has
been rightly passed though after starting the proceeding under
Section 200 of Cr.P.C. the learned Magistrate directed the
investigation to be made in respect of the allegation levelled
against the then Circle Officer and then S.H.O. of Obra police
station but while passing the order impugned, the learned
Magistrate mainly placed reliance upon the complaint as well as
statements of enquiry witnesses, so, there is no illegality in the
order impugned and there is no merit in this petition.
7. Heard both the sides and perused the order
impugned. This Court finds no substance in the first ground
taken by the petitioner’s counsel with regard to the investigation
which was directed by the learned Magistrate vide order dated
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22.10.2014 as the proviso of sub-Section (1) of Section 202 of
Cr.P.C. clearly says that where the complaint has not been made
by a court no direction for investigation shall be made unless the
complainant and the witnesses, present if any, have been
examined on oath under Section 200 of Cr.P.C. and in the
present matter, it is an admitted position that the complaint was
not filed by the court rather the same was filed by a private
person and the learned Magistrate passed the order as to
directing the investigation in respect of the accusation levelled
against two accused after the examination of four enquiry
witnesses who were present including the complainant, so, in
view of the said position, the principle laid down by this Court
in the judgment of Phulena Prasad (supra) does not help the
petitioners as it is mandatory for the Magistrate to examine the
complainant and his present witnesses where the complaint has
not been made by a court before passing a direction under
Section 202 of Cr.P.C. for investigation by a police officer or by
any other person. But however, the learned Magistrate
committed a serious error by ordering the investigation to be
made by a police officer against a police officer who was made
accused by the petitioner in his complaint and the same was in
violation of the principle laid down by this Court in the case of
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Rajeshwar Yadav (supra) and before passing the order
impugned a letter was received by trial court from the office of
Dy. S.P., Aurangabad, Daudnagar which might have affected the
learned Magistrate while passing the impugned order and owing
to this reason, the order impugned is not sustainable in the eye
of law, so, it stands set aside and the learned Magistrate is
directed to pass a fresh order under Chapter XV of Cr.P.C.
according to merit and in accordance with law without being
prejudiced with this order.
8. In the result, the instant criminal miscellaneous
petition stands allowed.
(Shailendra Singh, J)
maynaz/-
U T A.F.R.