Firangi Singh vs Durga Singh

Bucknill, J.—This was a reference made to this Court by the District Magistrate of Gaya under the provisions of Section 438 of the Criminal Procedure Code. This reference came before Macpherson, J., on the 2nd of September last and that learned Judge, thinking that a novel point arose in connexion with it, referred the matter to a Bench: the learned Judge also considered that it was desirable that the Crown should appear,

The difficulties which have occasioned this reference arose out of some rather confused criminal proceedings; and to what appear to be some mistakes in procedure made by two Sub-divisional Officers which under the circumstances are rot perhaps surprising. The, position may be thus shortly explained. Last October there was a dispute about irrigation between the inhabitants of two villages called Kunj and Chari in the Gaya district. As a result no less than three cases were started. What is called Case No. 1 was a summons case; the charge was u/s 143 of the Penal Code and was against the men of both the villages. What is called Case No. 2 was a warrant case drawn up against certain persons under the provisions of Sections 148, 323 and 430 of the Penal Code. It was against villagers of Kunj and in connexion with that case a man of Chari village had been injured. What is called the third case was also a warrant case. This was directed against the villagers of Chari. All the cases came before the Sub-divisional Officer. He tried Case No. 2 but kept Cases Nos. 1 and 3 pending until the result of the trial with which he was proceeding. The upshot of Case No. 2 was that he convicted the accused. He then, in respect of the Case No. 1, passed an order (as he was entitled to do) u/s 249 of the Code of Criminal Procedure stopping the proceedings and releasing the accused, In Case No. 3 he also passed a similar order, purporting to act u/s 249; he also directed the case to be entered as false.

No question arose as to the Sub-divisional Officer''s power to deal as he did deal with the first case. But a question does arise whether he had any power to deal with Case No. 3 ( a warrant case ) under the provisions of that section. But in Case No. 2 there was an appeal and the Sessions Judge reversed the decision of the Sub-divisional Officer, and set aside the conviction. The Sub-divisional Officer''s order of conviction took place on the 23rd March last and his two orders relating to Cases Nos. 1 and 3 were made on the same day. The learned Sessions Judge''s decision was on the 6th May last. The next thing which happened was that on the 16th June the person who had been the informant in the Case No. 3 applied to the Sub-divisional Officer (who was not the same individual as the Sub-divisional Officer who had tried Case No. 2) making what purports to be a complaint; at any rate he was examined on oath by the new Sub-divisional Officer; he sent for the connected records and on the 26th of June he passed an order summoning the accused.

The District Magistrate in his reference suggests that both the orders of the Sub-divisional Officers of the 27th March 1925, purporting to stop Case No. 3 under the provisions of Section 249 of the Code of Criminal Procedure and that of his successor of the 26th June summoning the accused on what appears to be a complaint made by the informant in Case No. 3 are wrong and should be set aside. There seems no doubt that both these orders must be set aside. In the first place there appears to be no good authority of any kind for suggesting that Section 249 can be utilized in respect of a warrant case. The heading of Chapter XX of the Code of Criminal Procedure which comprises Sections 241--249 refers to the "trial of summons cases by Magistrate" and, as has been pointed out by the learned Assistant Government Advocate, it is quite clear that, upon a perusal of Sections 247--249, the last-named section is only intended to apply to summons cases instituted otherwise than upon complaint. It is true that Mr. Sohoni on page 614 of his work on the the Code of Criminal Procedure (11th edition) seems to think that the procedure contemplated u/s 249 might be applicable to warrant cases; but it is an old section, and so far as can be ascertained there is no case which lays down such a proposition. Indeed from reading the preceding sections it certainly seems evident that Section 249 only deals with summons cases instituted otherwise than upon complaint. Section 247 relates to summonses issued upon complaint and what the Magistrate''s duties are if the complainant does not appear. Section 248 contemplates the possibility of withdrawal of a complaint by a complainant whilst Section 249 contemplates the powers of a Magistrate as to stopping cases and releasing the accused in any case instituted other than upon complaint. This order therefore thus made by the Sub-divisional Officer on the 23rd March last is obviously one which he could not make, and although it is in effect of no value it is, I think, desirable, in order that, there should be no future difficulty, that we should formally declare that it is illegal and, so far as may be if at all necessary, set it aside.

Now, although it has been suggested that what the complainant in Case No. 3 did when he came up before the new Sub-divisional Officer with his petition on the 16th of June last amounted only really to an informal drawing of the attention of the Sub-divisional Officer to the fact that Case No. 3 was still in existence on his file and had not been disposed of. I do not think that such a suggestion can on examination be seriously entertained; nor was it, I think, very seriously put forward by the learned Counsel who in effect appeared in support of what the Sub-divisional Officer had directed by his order of the 26th June. The fact remains that it would seem that the Sub-divisional Officer treated the petition as a complaint; he examined the accused on oath and in this way he seems to have treated the matter as one of which cognizance was being taken under the provisions of Section 190(1)(b) of the Code of Criminal Procedure; in other words as a fresh affair. It need hardly perhaps be pointed out that, as the order made by his predecessor on the 23rd March purporting to act u/s 249 was void, the case was still really on his file and cognizance had already been taken of it u/s 190(1)(a).

It has been suggested, somewhat tentatively, that the order in Case No. 3 made by the Sub-divisional Officer on the 27th March last, although purport to be made u/s 249, might be regarded as one made properly u/s 253(2) as it is argued that the upshot is really the same and that it is merely a difference of form. I am not prepared to say that there is no difference in the effect of stopping a case u/s 249 and the discharge of an accused u/s 253(2); but in this case I do not think that such a question is material or really arises because the Sub-divisional Officer expressly purported to deal with the matter u/s 249 and in addition ordered that the case should be entered as false. Now in his order of the 26th June the new Sub-divisional Officer after reciting what had previously taken place and the order made in the third case observes:

Durgi Singh, who is the complainant in Case No. 3, now comes up and files this petition that his case might now be taken up and dealt with according to law. His prayer seems reasonable I accordingly summon the accused Under Sections 430 and 147, I.P.C. Also summon prosecution witnesses for that date.

Now the learned Assistant Government Advocate has pointed out that it was not open to the Sub-divisional Officer to take any such action as he did in re-opening a warrant case which was already on his file on an application of a private party. It seems very clear that what the Sub-divisional Officer did (although his order is not particularly lucid) was that he really started a case de novo; but this he could not do because Case No. 3 was still really on his file. There seems no doubt that he thought that his predecessor''s order with regard to Case No. 3 was a valid one and that it was not was never brought to his notice. It is quite clear that he could not act as he did in re-opening the case supposing that what he did could be regarded as his having done so upon the application of a private party. The learned Assistant Government Advocate points out that the Sub-divisional Officer could of course re-open the case either upon application by the Crown or suo motu, but in this case he did neither. Whilst the police case was already on his file he could not start a fresh case upon a complaint. There is no authority of any kind given to us to controvert the views which have been placed before us by the learned Assistant Government Advocate. We, therefore, consider: (a) that the order of the Sub-divisional Officer of the 27th March u/s 249 of the Code of Criminal Procedure was altogether an invalid order. It is hereby set aside. The result is that the Warrant Case No. 3. is still on the file of the Sub-divisional Officer. (b) the order of the Sub-divisional Officer of the 26th June is also invalid; it too must be set aside. The result will be as before that the Warrant Case No. 3 is still on the Sub-divisional Officer''s file as it stood on the 27th of March last at the time of the invalid order purporting to be made u/s 249 with regard thereto, (c) The reference of the District Magistrate of 25th July 1925 is therefore accepted. (d) The Sub-divisional Officer either of his own motion or of course upon the application of the Crown may, if he so thinks fit, proceed with the Warrant Case No. 3.

Adami, J.

I agree.