JUDGMENT
P.S. Mishra, C.J.
1. Petitioner-appellant was allegedly arrested on 11-4-1997 for the alleged offence under Section 8(b) of the A.P. Prohibition Act, produced before a Magistrate and remanded to police custody for being produced on 15-4-1997. On 15-4-1997, he and other co-accused complained to the Magistrate that they were beaten by S.I. of Police, Nirmal (T). Magistrate in his order recorded as follows :
“…….. A1 to A4 have stated that they have been beaten by S.I. of Police, Nirmal (T). On 11-4-1997, A2, A3, A4 have also stated they have already been treated by the civil Assistant Surgeon, Nirmal Government Civil Hospital. In the circumstances of the case A1, A2, A3 are referred to Government Hospital for treatment. A4 is remanded to judicial custody till 29-4-1997.”
2. Making the grievance that inspite of the above complaint before the Magistrate no case has been registered by the S.I. of Police (respondent No. 3), petitioner-appellant sought for an appropriate direction for registration of a case against the third respondent for the alleged assault by him upon the petitioner-appellant.
3. Third respondent has filed counter-affidavit. He has denied the allegations and stated that when petitioner and others were first produced before the Magistrate they made no complaint of any assault upon them by the police. Subsequently, however, on 15-4-1997 the alleged ‘assault complaint’ is made by the petitioner and other co-accused before the Magistrate. According to the third respondent, petitioner received injury when he tried to escape, and while jumping over a compound wall fell down on hard surface and received injuries on his buttocks.
4. Learned single Judge has not accepted the contention of the petitioner-appellant that it was the duty of the Magistrate to have caused enquiry to be made when the accused were produced before him and they complained that they were beaten by the police while in custody and accepted the contention that since in the State, Human Rights Courts are created, the petitioner-appellant ought to have lodged complaint before the Human Rights Court constituted under Section 30 of the Protection of Human Rights Act, 1993 instead of invoking the jurisdiction of this court under Article 226 of the Constitution of India.
5. It appears that attention of the learned single Judge was not drawn at all to the provisions in Chapter VI of the Act which contains two sections, Section 30 deals in respect of the establishment of a Court of Session for each district as the Human Rights Court and Section 31 speaks for appointment of a Public Prosecutor or any Advocate as a Special Public Prosecutor for the purpose of conducting cases in that Court. Section 30 states as follows :-
“30. HUMAN RIGHTS COURTS-For the purpose of providing for speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences : Provided that nothing in this section shall apply if –
(a) a Court of Session is already specified as a special Court or
(b) a special Court is already constituted, for such offences under any other law for the time being in force.”
Section 31 only provides for appointment of the Special Public Prosecutor by the Government of the State by a notification. It is clear from the provisions aforementioned that the Human Rights Court is created to try the offences arising out of violation of Human Rights, which is defined under Section 2(1)(d) to safe guard the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenant and enforceable by Courts in India. While the Act speaks of the establishment of a National Human Rights Commission and the States’ Human Rights Commissions and inquiries by the Human Rights Commission in the cases of violation of Human Rights, Section 30, which speaks of the creation of Human Rights Courts, does not speak of any power in the said Court to either take cognizance of any offence or proceed before summoning the case or proceeding for trial in inquiry or investigation. Courts by which offences are triable are specifically enumerated and classified under Section 26 of the Criminal Procedure Code, 1973 which include for the trial of offences under the Indian Penal Code the High court, the Court of Session or any other Court by which offence is shown in the First Schedule to be tribal and in respect of any offence under any other law when any Court is mentioned in this behalf in such manner to be tried by such Court and when no Court is so mentioned by the High Court or any other Court by which such offence is shown in the First Schedule to be triable.
6. Chapter XIV of the Code of Criminal Procedure deals with conditions requisite for initiation of proceedings and in Section 190 provides for taking of cognizance of offences by any Magistrate of the First Class and any Magistrate of the second class specifically empowered in this behalf upon receiving a complaint of facts, upon a police report of such facts and upon information received from any person other than a police officer or upon his own knowledge and empowers the Chief Judicial Magistrate to delegate the power, to take cognizance of such offences, as are within the competence to inquire into or try, to a Magistrate of second class.
7. Section 193 in the said Chapter of the Code says,
“193. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”
8. It is not necessary to refer to other provisions, of the Code as the above leave no manner of doubt that the Human Rights Court, being a Court of Session for trial of offences violative of Human Rights, does not have the power to take cognizance of any offence as a Court of original jurisdiction unless the case is committed to it by a Magistrate. A Magistrate of the first class or a Magistrate of the second class, as the case may be, when empowered in this behalf, can take cognizance of any offence upon receiving a complaint of facts, upon a police report or upon information received from any person other than a police officer or upon his own knowledge. Court of Session, however, cannot do so and accordingly Human Rights Courts also cannot take cognizance of the offence as the Court of the first instance. There is, thus an error in the impugned judgment in thinking that petitioner-appellant has the remedy in the Human Rights Court.
9. A complaint of facts has to be understood in the light of the definition of complaint under Section 2(d) of the Code which means any allegation made orally or in writing to a Magistrate, with a view to taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. A complaint can be made to a Magistrate, that is, the Court of the first instance, as contemplated under Section 200 in Chapter XV of the Code which says,
“Section 200 : A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :
Provided that, when the complaint is made in writing, the Magistrate need not examine the complaint and the witnesses –
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192;
……………….”
10. Since the petitioner-appellant has alleged that he was assaulted by a police officer while he was in police custody and is a private person who when making such complaint is required to be examined upon oath before proceeding either to issue process or by postponement of issue of process to inquire or to direct for investigation to be made by a police officer or by such other person as the Magistrate thought fit as contemplated under Section 202 of the Code in Chapter XV, the Magistrate was required to examine the petitioner-appellant upon oath, reduce his statement to writing and obtain signature of the petitioner-appellant and the witnesses, if any, on the statement so made by them. Magistrate obviously has not followed the said procedure.
11. The concerned Magistrate is not impleaded as party-respondent. It will be futile when the petitioner-appellant has made oral complaint before the Magistrate that he has been assaulted by the police to direct the police to register the case and investigate. It is a fit case, in our view, in which opportunity should be given to the petitioner-appellant to make a fresh complaint in respect of the above allegations and to leave it to the discretion of the Magistrate to proceed in accordance with law either to take cognizance and issue process or to postpone the issue of process to the accused and hold inquiry into the allegations before deciding the issue in process.
12. For the reasons aforementioned, the impugned judgment is set aside. The writ appeal is allowed and the writ petition ordered as above.
13. Appeal allowed.