In Re Barhamdeo Singh

Allanson, J.—This is a reference by the Additional Sessions Judge of Patna u/s 438, Criminal P.C. Barhamdeo Singh made a statement to the writer Head Constable at the Mokameh Railway Police Station charging one Rambhaja with having stolen some property at Barh town. The next day Rambhaju was forwarded to the Barh Police Station with the statement of Barhamdeo Singh. Barhamdeo Singh never appeared before the Sub-Inspector of Barh. The latter investigated the case and found it to be false, and then made a complaint to the Sub-Divisional Magistrate asking that Barhamdeo might be prosecuted under Sections 211 or 182, I.P.C. He was tried by a Second Class Magistrate and convicted u/s 182 and sentenced to three months'' rigorous imprisonment.

The Additional Sessions Judge in his letter of reference points out that no Court can take cognizance of an offence punishable u/s 182 except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. No false information was given by the accused to the Sub-Inspector of Barh. The writer Head Constable at the Mokameh Railway Station is not a subordinate of the Sub-Inspector of Barh. Therefore the Magistrate who took cognizance of the case on the complaint of the Sub-Inspector of Barh had no power to do so u/s 195(1)(a), Criminal P.C. The learned Assistant Government Advocate says that he is unable to contest the grounds given by the learned Additional Sessions Judge in his letter of reference. It is unnecessary for us to go into the question as to whether there could have been a conviction u/s 211, because a Second Class Magistrate cannot try an offence under that section.

We, therefore, accept this reference and set aside the conviction and sentence and direct that the accused be released from his bail.

Sen, J.

I agree.