Daroga Mahton vs Emperor

Luby, J.—Daroga Mahto has been convicted by the Assistant Sessions Judge of Bhagalpur and sentenced to four years'' rigorous imprisonment under S. 211, Penal Code; and his appeal has been dismissed by the Sessions Judge on 1st May 1934.

The charge against him was that he had laid a false complaint of arson against Tulshi Rai and others at Bihpur station on 27th October 1933.

The proceedings against him were instituted in the following manner. The Sub-Inspector of police after enquiring into the arson case submitted a final report "maliciously false" and prayed for prosecution of the informant under S. 211, Penal Code. That was on 7th November. A week later the Sub-Divisional Magistrate took cognizance of the Sub-Inspector''s complaint and issued a summons to Daroga Mahto, fixing 30th November for his trial under S.211. On 28th November Daroga came to Court and filed a protest petition impugning the police report and asking for an opportunity to prove his arson case. The Magistrate rejected his petition without enquiry and proceeded with the trial and eventually committed Daroga to Sessions, where he was tried and convicted and sentenced as mentioned above.

Now the learned advocate for Daroga Mahto asks this Court to set aside the proceedings as void ab initio, on the ground that the Magistrate was bound to treat the protest petition as a complaint and to enquire into it before proceeding with the trial under S. 211, Penal Code, and was also bound to file a complaint himself against Daroga Mahto under S. 476 Cr. P.C, if he still wished to have Daroga tried under S. 211 after enquiring into his arson case.

Reliance is placed upon the order passed in Ramdhari Gope v. Emperor, (1928) 110 IC 212. In that case Jwala Prasad, J., sitting singly based his order upon the decision made by a Division Bench in Sheikh Muhammad Yassin Vs. Emperor, . But the circumstances of Sheikh Muhammad Yassin Vs. Emperor, were quite different from those of Ramdhari Gope v. Emperor, (1928) 110 IC 212. Possibly the learned Judge was misled by the headnote to Sheikh Muhammad Yassin Vs. Emperor, , which is inaccurately worded. In Sheikh Muhammad Yassin Vs. Emperor, the protest petition was filed in the Magistrate''s Court before the police had submitted their final report. Their Lordships held that:

by making his complaint to the Court the informant baa withdrawn the information from the category of mere police proceedings and raised it to the category of a proceeding in Court.

A similar conclusion was reached under similar circumstances by another Division Bench in Daroga Gope v. Emperor, AIR 1925 Pat 717: 88 IC 1045: 26 CrLJ 1269: 5 Pat 33. But in Ramdhari Gope v. Emperor, (1928) 110 IC 212 the protest petition was not filed till after the Magistrate had summoned Ramdhari on the police complaint under S. 211. The Magistrate took no action on the protest petition but continued his enquiry under S. 211 and committed Ramdhari to Sessions. The commitment was quashed on the ground that Ramdhari could not be tried under S. 211 unless and until the Magistrate himself made a complaint under S. 476, Criminal P. C.

In the following year Macpherson, J., dealt with the same point differently in his judgment found at Parmanand Brahmachari v. Emperor, 1930 Pat 30: 116 IC 46: 30 CrLJ 554. In that case the protest petition was filed after the Magistrate had taken cognizance of the police complaint under S. 211. It was held that when once the Magistrate had taken cognizance of the police complaint nothing that could subsequently happen (such as the filing of a protest petition) and nothing in S. 195(1)(b), Criminal P.C. could operate to deprive him of jurisdiction to proceed thereon according to law. The judgment contains an admirable exposition of the points of law involved, and requires no supplement or comment from, me. The views therein expressed were quoted and approved by a Division Bench (Macpherson and Scroope, JJ.) in Subhag Ahir Vs. Emperor, from which I may quote just one sentence which puts the whole matter in a nutshell-

If cognizance has been taken of the offence under S. 211 on the complaint of the police officer before the informant has by an application to the Magistrate traversed the police report, repeated his charge, and asked for a judicial investigation, S. 195(1)(b) does not become applicable; but where no cognizance has been taken by the Magistrate of the offence under S. 211, the application of the informant, if within the definition of a complaint, does bring S. 195(1)(b) into operation.

Personally, I was under the impression that the law on this point was regarded as settled by the decisions found at Parmanand Brahmachari v. Emperor, 1930 Pat 30: 116 IC 46: 30 CrLJ 554 and Subhag Ahir Vs. Emperor, . But strangely enough neither of those decisions made any reference to the order passed in Ramdhari Gope v. Emperor, (1928) 110 IC 212. So Ramdhari Gope v. Emperor, (1928) 110 IC 212 is still being quoted as not yet overruled. I think the time has come for a pronouncement that the order passed in Ramdhari Gope v. Emperor, (1928) 110 IC 212 was a mistaken order and should be disregarded in future.

The learned advocate for Daroga Mahto has invited our attention to the Full Bench decision of the Calcutta High Court in the case of Queen-Empress v. Sham Lal, (1887) 14 Cal 707 (FB). In that case Sham Lal had laid an information before the police, and the police had reported that his information was false: the District Magistrate passed an order for prosecuting Sham Lal under S. 211; then Sham Lal appeared before the Magistrate, asking that his case might be investigated and his witnesses summoned. This application was refused and the Magistrate sent the case under S. 211 to a Deputy Magistrate for enquiry or trial. On reference to the Full Bench, it was held that the District Magistrate had upon the police report jurisdiction to make his order for prosecuting Sham Lal under S. 211; but that in the peculiar circumstances of the case the District Magistrate had not exercised a sound judicial discretion. I do not consider that this decision helps Daroga Mahto in any way. The quality of judicial discretion has to be estimated on a consideration of the circumstances in each case.

The decision does however show that the District Magistrate had jurisdiction to make his order. It does not help us as regards S. 195 and S. 476, Criminal P.C, because both those sections have been amended since.

It is urged that the police will have an unfair advantage over members of the public, because the Sub Inspector can attach his complaint under S. 211 to his final report and get the Magistrate to take cognizance of the complaint under S. 211, before the informant can ascertain the result of the police enquiry. The argument will not hold water, because it ignores the Magistrate, who plays the chief part in such proceedings. The Magistrates are there to see fair play between the police and the general public; and so far as I am aware, they perform that duty very efficiently. After all, a Magistrate is not bound to issue process at once on any complaint. He can if he thinks fit make a preliminary enquiry under S. 202, Criminal P.C., or have it made by someone else. And in dealing with police complaints the Magistrate as local head of the police has an even freer hand. If he has any doubts about a complaint made under S. 211, Penal Code, by a Sub-Inspector, he can return it to the Sub-Inspector for reconsideration, or send it to some superior police officer for his opinion. I think that the Magistrate can ordinarily be trusted to use their powers with discretion, and not to start prosecutions under S. 211 without good and sufficient cause. If once in a while a Magistrate is too hasty, the person aggrieved can invoke the aid of this Court. But such invocation should be done at once, not after a lapse of several months as has been done in the present case. It is difficult to believe in the genuineness of a grievance which has been kept up the sleeve so long. And how can we hold that the Magistrate has failed to exercise a sound judicial discretion, after the Magistrate''s use of his discretion has been fully justified by the result of the Sessions trial?

In the case which is now under our consideration, Daroga Mahto informant did not lodge his protest petition until after the Magistrate had taken cognizance of the offence under S. 211, Penal Code, on the Sub-Inspector''s complaint. In those circumstances, the Magistrate was not bound to stay his proceedings under S. 211, Penal Code; though he could have done so if he had thought fit. And if he did not think fit to stay his proceedings on the Sub-Inspector''s complaint he was not bound to make a complaint of his own against Daroga under S. 476, Criminal P. C. He had jurisdiction to proceed as he did proceed. And I am of opinion that he used a sound judicial discretion in so proceeding. So there is no call for interference in revision.

It is also argued that the Magistrate was bound to examine Daroga Mahto on oath as soon as the protest petition was filed; and that his omission to do this was a serious illegality. About this I would say that the examination of Daroga on oath would be a mere formality, if the Magistrate had already made up his mind to proceed with the Sub-Inspector''s complaint first. At most it would be an irregularity as observed in the case of Bharat Kishore Lal Singh Deo Vs. Judhistir Modak, .

Lastly the learned advocate asks us to interfere in the matter of sentence. But four years'' rigorous imprisonment cannot be called excessive punishment for bringing a false charge of arson. I would refuse this application.

We desire to acknowledge the assistance which we received from Mr. S. M. Gupta who at our request appeared as amicus curiae, there being no appearance on behalf of the Crown.

Courtney-Terrell, C.J.

I agree.