Emperor vs Lalchand Teli and Another

Macpherson, J.—This is a reference by the Sessions Judge of Bhagalpur under the provisions of Section 438 of the Code of Criminal Procedure recommending that the proceedings of the Sub-Divisional Magistrate of Madhipura in respect of Uchit Dusadh Chaukidar and Harikinkar Jha u/s 211 read with Section 114 of the Indian Penal Code, be set aside on the grounds, first, that he has exceeded his jurisdiction, and secondly, that there is very little likelihood of the prosecution undertaken by him terminating in a conviction.

Mahmood Mian was the complainant in a case tried by the Sub-Deputy Magistrate of Madhipura. The latter acquitted the accused and forwarded a complaint u/s 476 of the Code of Criminal Procedure against Mahmood Mian to the Sub-Divisional Magistrate "for favour of taking cognizance of the case u/s 182 read with Section 211 of the Penal Code and prosecuting the said Mahmood Mian under those sections." Thereon the Sub Divisional Magistrate noted that he took cognizance of the case and issued warrants of arrest against Mahmood Mian u/s 211 and against the petitioners under that section read wit Section 114.

In his explanation the Magistrate stated that he took cognizance of the case against Uchit and Harikinkar in the exercise of the powers vested in him u/s 190(1)(c) of the Code of Criminal Procedure/ He was of opinion that he was entitled to do so, because the Sub-Deputy Magistrate had in his judgment come to a finding that Mahmood Mian had brought a false and malicious charge against the present accused ''in pursuit of vengeance and gratification of spite in order to harass him at the instance of the chaukidar Uchit Dusadh and Harikinkar Jha."

Manifestly Section 195(1)(b) of the Code of Criminal Procedure was a bar to cognizance of an offence u/s 211 alleged to have been committed in or in relation to a proceeding in the Court of the Sub-Deputy Magistrate except on complaint in writing by that Court or some other Court to which that Court is subordinate. There was clearly no such complaint in writing and it was not open to the learned Sub-Divisional Magistrate to take cognizance u/s 180(1)(c) against the petitioners in respect of whom neither the Sub-Deputy Magistrate nor a superior Court had complained in writing,

I accordingly accept the reference on the first ground and direct that the order of the Sub Divisional Magistrate dated the 3rd December, 1929, taking cognizance of an offence u/s 211 read with Section 114 of the Indian Penal Code, against Uchit Dusadh and Harikinkar Jha be set aside.