Bengali Gope vs King-Emperor

Ross, J.—The petitioner has been committed to the Court of Session for trial on a charge of having presented a false complaint before the Sub-Deputy Magistrate of Dinapur. The offence alleged in the complaint was the offence of murder.

The contention on behalf of the petitioner is that the Sub-Deputy Magistrate who exercised 2nd Class powers only, had no authority to take cognizance of the complaint; and that all the proceedings before him were without jurisdiction.

It appears that by an order of the District Magistrate of Patna the Sub-Deputy Magistrate of Dinapur is authorized to entertain complaints during the absence of the Sub divisional Magistrate. The power to make such an order is conferred by Section 190, Clause (2), and is exercisable with regard to cases which the Subordinate Magistrate is competent to try or commit for trial. Section 37 and the fourth schedule of the Code, which also deal with this matter, must be read with Section 190; and there is nothing in these provisions to extend the powers which the District Magistrate can confer. As the complaint made to the Sub-Deputy Magistrate was a complaint that certain persons were guilty of murder, he was not competent to take cognizance of it; and the proper procedure for him to adopt was that laid down in Section 201 which requires him to return the complaint for presentation to the proper Court with an endorsement to that effect. Instead of doing that he sent the complaint to the police for enquiry and, on their reporting the case to be false, he dismissed the complaint u/s 203 without ever having examined the complainant on oath, and then himself complained against him. The orders were throughout irregular and without jurisdiction. Nor are they protected by Section 529(e). That section saves proceedings before a Magistrate taken on a complaint of which cognizance is taken without authority; but this will not have the effect of making the complainant liable for prosecution for a false complaint by reason of the Magistrate''s having taken cognizance of it without power to do so.

In my opinion these proceedings were void ab initio; and there is no basis in law for the present prosecution. I would therefore quash the commitment u/s 213 of the Code and direct that the petitioner be discharged.

Kulwant Sahay, J.

I agree.