Dalu Gour and Others vs Moheswar Mahato

Das, J.—This is a reference by the learned Sessions Judge of Manbhum Singhbhum under the provisions of Section 438, Criminal P.C. for quashing, the case against eight persons who have been summoned to stand their trial for an alleged offence u/s 379/109, Penal Code. The main ground which has been given by the learned Sessions Judge in his letter of reference can be best expressed in his own words:

In my opinion, there does not appear to be any material before the Court for prosecuting these petitioners and that being the position, the order of the learned Magistrate issuing process and summoning the petitioners should be set aside and the proceedings so far as these petitioners are concerned should be quashed.

The learned Sessions Judge has also referred to another ground relating to the question of jurisdiction though he has not made that the main ground for his recommendation. Therefore, two points arise for consideration, (1) Whether the Magistrate who issued process against the petitioners was legally competent to do so; and (2) whether there were any materials before the Magistrate on which the petitioners before the learned Sessions judge, could be tried for the offence in question.

In order to appreciate the points raised, it is necessary to set out some of the relevant facts. On 17-11-1915, one Moheswar Mahato filed a petition against 10 persons including the 8 persons whose case has been referred to this Court by the learned Sessions Judge, for action u/s 144, Criminal P.C. as respects an apprehended breach of the peace over the harvesting of the paddy crop on two plots of land (plots 48 and 49).

This petition was sent by the learned Subdivisional Magistrate of Jamshedpur to the Sub-Inspector of Police, Sakchi Police Station, for an enquiry and report. The learned Magistrate also directed the police officer to see that no breach of the peace took place over the harvesting of the paddy crop. On 26-11-1945, the Sub-Inspector of Police, Sakchi Police station, reported that one Jagu Dutta (one of the persons summoned by the learned Magistrate whose case has not been referred to this Court by the learned Sessions Judge) had got the paddy cut with the help of 40-50 labourers from the plots in question on the night of the very day on which the petition was filed by Moheswar Mahato, namely, 17-11-1945. The Sub-Inspector of Police made a prayer in his report that Jagu Dutta and other accused persons mentioned in the petition of 17-11-1945, should be summoned to stand their trial for an offence u/s 379, Penal Code. This report of the Sub-Inspector of Police was put up to the learned Magistrate on 27-11-1945, and on that date the learned Magistrate passed an order to the following effect:

Read police report on the petition filed by Moheswar Mahato. Ask S.I. to institute a case under Sub-section 379 and 379/109, I.P.C. to investigate and to report.

The learned Subdivisional Magistrate also called upon Jagu Dutta to show cause why he should not be asked to execute a bond for keeping the peace. We are not concerned in this case with the latter part of the order of the learned Magistrate. On receipt of the aforesaid order of the learned Magistrate, the Sub-Inspector of Police drew up a formal first information report on the Orginal petition of 17-11-1945, and his own report dated 26-11-1945.

The learned Sessions Judge has proceeded on the footing that the formal first information report drawn up by the Sub-Inspector of Police consisted only of the original petition of 17-11-1945, which was filed before the alleged theft of crops. In the final report submitted by the local police u/s 173, Criminal P.C. it was clearly mentioned that the report which the Sub-Inspector had submitted on 26-11-1945, was part of the first information report, because it was that report which showed the commission of an offence. The case was investigated into by the Sub-Inspector of police and was supervised by the Divisional Inspector. Several petitions were filed against the investigation by the local police details of which need not be given. On 2-1-1946, the Sub-Inspector of police submitted a final report u/s 173, Criminal P.C. as directed by the Divisional Inspector, to the effect that the harvesting of crops was true but the dispute was of a civil nature. This final report was put up to the Sub-divisional Magistrate of 9-1-1946, on which date he passed the following order:

It appears that the police instituted a case and submitted a final report. Put up with the connected records before the City Magistrate tomorrow.

The City Magistrate was one Mr. B.K. Dutta. He dealt with the matter on 11-1-1946, When he recorded the following order:

Perused the Final Report and Supervision note of the Inspector police. Heard the parties. The petitioner prays for a judicial enquiry. This appears to be a fit case for a judicial enquiry. To Mr. G.K. Prosad, Magistrate for favour of a judicial enquiry and report by 27-1-46. After conclusion of the judicial enquiry, Mr. G.K. Prosad, the Magistrate who held the judicial enquiry, submitted his report on 11-3-1946. He recommended that Jagu Dutta and the 8 per-sons whose ease is under consideration here should be summoned for an offence under Sub-Section 379 and 379/109, Penal Code. On 12-3-1946, Mr. B.K. Dutta, the City Magistrate, summoned Jagu Dutta and 9 other persons. Of the 9 persons, one died and the remaining eight are the persona whose case has been referred to this Court by the learned Sessions Judge.

The first question for consideration in the circumstances mentioned above is if Mr. B.K. Dutta was legally competent to summon the accused persons. I am of the opinion that Mr. B.K. Dutta was legally competent to summon the accused persons and put them on trial. My reasons are the following. The Subdivisional Magistrate of Jamshedpur was competent to take cognizance of an offence on a police report, under Clause (b) of Sub-section (1), Section 190, Criminal P.C. The report, which the Sub-Inspector of police submitted u/s 173, Criminal P.C. was a report on which the Subdivisional Magistrate was competent to take cognizance. After taking cognizance, the Sub-divisional Magistrate could transfer the case to any Magistrate subordinate to him, vide Sub-section (1), Section 192, Criminal P.C. It is well settled that when a case is transferred to a subordinate Magistrate u/s 192(1), Criminal P.C., the latter, has the same authority to deal with the case as regards the issuing of process and other matters connected with the enquiry or trial as is vested in the superior Magistrate from whom he receives the case on transfer. It is also clear that the transfer may be made as soon as the transferring Magistrate has taken cognizance of the case; he need not wait for the stage when the accused person appears as a result of the issue of process. It has not been seriously disputed before me that the City Magistrate is subordinate to the Subdivisional Magistrate of Jamshedpur. u/s 17(2), Criminal P.C., every Magistrate (other than a Sub-divisional Magistrate) and every Bench exercising powers in a sub-division shall be subordinate to the Sub-divisional Magistrate The Sub-divisional Magistrate was, therefore, competent to transfer the case to the City Magistrate. I am of the view that the order of the Sub-divisional Magistrate dated 9-1-1946, which I have already quoted, is really an order of transfer u/s 192(1), Criminal P.C. The expression "cognizance" has not been defined in the Code. There are several decisions to the effect that forking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence (vide the observational made in Sourindra Mohan v. Emperor (10) 37 Cal. 412 and Hafizar Rahman Vs. Aminal Hoque, .

The learned Sub-divisional Magistrate had applied his mind to the suspected commission of an offence and on receipt of the final police report he directed that the case be made over to the City Magistrate. I do not think the order, of the learned Sub-divisional Magistrate dated 9-1-1946, can bear any other interpretation. Even if it be conceded that the Subdivisional Magistrate had not taken cognizance when he transferred the case to the City Magistrate, the defect would not be a ground for setting aside the proceedings : vide Section 529, Criminal P.C. For these reasons, I am of the view that the City Magistrate when he received the case from the Sub-divisional Magistrate was legaly competent to deal with the case as regards the issuing of process etc., in the same way as the superior Magistrate from whom the case was received on transfer. He was, therefore, legally competent to issue process against the accused persons.

There has been some argument before me as to whether Mr. B.K. Dutta was competent to order a judicial enquiry by another Magistrate Mr. G.K. Proshad u/s 202, Criminal P.C. The learned Sessions Judge is of the opinion that it was irregular to order a judicial enquiry u/s 202, Criminal P.C. when there was no complaint. There is no doubt that when there is a complaint on which cognizance has been taken and which has been transferred to another Magistrate u/s 192, Criminal P.C. the latter Magistrate is competent to postpone issue of process and direct an enquiry or investigation. The provisions of Section 202, Criminal P.C. make this very clear. The question, however, is if an enquiry can be ordered in a case in which cognizance has been taken not on a complaint but on a police report. I am inclined to agree with the learned Sessions Judge that Section 202 is confined to cases instituted on a complaint. The opening words of the section read as follows:

Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him u/s 192, may, if he thinks fit etc....

The pronoun ''which'' occurring in those words can refer only to the preceding noun ''receipt of a complaint of an offence. If that be the correct interpretation of Section 202, then the Magistrate, who receives the case on transfer can direct an enquiry if the complaint has been received on transfer by him. It is also worthy of note that Section 202 occurs in the chapter dealing with complaints to Magistrates. The power to, issue, process u/s 204, Criminal P.C. occurs in the next chapter dealing with the commencement of proceedings before Magistrates. Though Section 204 says that the Magistrates taking cognizance can issue process, it is now well settled (as stated above) that the Magistrate to whom the case is transferred u/s 192 has the same power which the Magistrate taking cognizance had, to issue process against the accused persons. Accepting therefore, the position that Mr. B.K. Dutta could not have ordered an enquiry u/s 202, Criminal P.C, the question still remains if this irregularity deprived him of jurisdiction to issue process against the accused persons and try them. In any opinion, the irregularity did not deprive Mr. B.K. Dutta of the jurisdiction which he had to deal with the case on transfer to him by the Sub-divisional Magistrate under the provisions of Section 192, Criminal P.C. Mr. B.K. Dutta was competent to issue process on a consideration of the police report itself. My view, therefore, is that the proceedings cannot be quashed on the ground that Mr. B.K. Dutta was not legally competent to issue process and try the accused persons.

Then comes the next question if there were materials before the learned Magistrate for putting the accused persons on trial for an offence u/s 379/109, Penal Code. It is to be noted that the case of Jagu Dutta is not before me, the learned Sessions Judge having referred the case of the other eight persons only. The main reason given by the learned Sessions Judge for his finding that there are no materials against these eight persons is that their names occur in the petition of 17-11-1945, which was filed before the harvesting of the crop, and that their names do not occur in any subsequent document. I have carefully examined the police report dated 26-11-1945, as also the final report dated 2-1-1946. In both those reports, there is a mention of the accused persons, and the reference undoubtedly was to the names mentioned in column 2 of the first information report. In that column the names of all these eight persons were written and in the body of the reports the names were not repeated, but these persons were referred to as the accused persons. I am unable to agree with the learned Sessions Judge that there were no materials before the Magistrate on which he could proceed against these eight persons. The two police reports themselves show that Jagu Dutta along with many other persons, including the eight persons mentioned above had harvested the crop from the two plots in question. On those reports it was open to Mr. B.K. Dutta to issue process. Whether there will be reliable evidence against these persons at the trial is a different question which does not arise for consideration at this stage. All that can be said at this stage is that there were materials before the learned Magistrate which made out a prima facie case for the issue of process against Jagu Dutta as well as the other persons mentioned in column 2 of the first information report.

For the reasons given above, I am unable to accept the recommendation of the learned Sessions Judge that the proceedings should be quashed in this case. The reference, therefore, fails and is rejected.