In Re: Kachi Madar Labbai

Sundara Aiyar, J.—This is an application to set aside an order of the Sub-divisional Magistrate of Tuticorin passed u/s 476, Criminal

Procedure Code, directing the prosecution of the petitioner for offences under Sections 182 and 211 of the Indian Penal Code. The circumstances

under which the order was passed are briefly as follows. The petitioner laid a complaint before the Sub-divisional Magistrate of extortion and

receiving illegal gratification against four persons, two of whom were police officers. The Magistrate, after the examination of the complainant on

oath, held a preliminary inquiry u/s 202, Criminal Procedure Code, without issuing process for the appearance of the accused and after considering

the result of the investigation, he dismissed the complaint and directed the prosecution of the complainant as mentioned above on the 22nd

November 1909. The complainant applied to the Sessions Judge of Tinnevelly for revision of the order of dismissal of the complaint. His

application was successful and the Sessions Judge directed a further enquiry into the case. The Sub-divisional Magistrate issued summonses to the

accused. The Sessions Judge, in disposing of the complainant''s petition for revision, passed no order with respect to the direction of the Sub-

divisional Magistrate for the prosecution of the complainant. Nor did the Sub-divisional Magistrate, after discharging the accused, again pass any

fresh order u/s 476, Criminal Procedure Code. The Head-Quarters Deputy Magistrate of Tinnevelly to whom the Sub-divisional Magistrate had

forwarded the records u/s 476, Criminal Procedure Code, passed orders on receiving the Sessions Judge''s order that the proceeding abated and

he took no action thereon during the pendency of the revision petition before the Sessions Judge and the retrial by the Sub-divisional Magistrate.

After the order of discharge by the latter Magistrate the Prosecuting Inspector requested him to proceed with, the inquiry. The Deputy Magistrate

was of opinion that as he had passed orders that the proceeding abated, ""he could not take fresh proceedings without an order from a superior

court."" The complainant before the Sub-divisional Magistrate asks us in this revision petition to set aside his order dated 22nd November 1909

with a view to prevent the proceedings against him before the Deputy Magistrate being revived. Mr. Appasawmi, who appears for the petitioner,

has urged two grounds for our interference : first, that the order u/s 476, Criminal Procedure Code, ceased to be operative when the Sessions

Judge quashed the Sab-divisional Magistrate''s order of dismissal of the complaint; secondly that the order being based on the materials placed

before the Sub-divisional Magistrate at the preliminary inquiry and that inquiry not being of a judicial character, the order was illegal and made

without jurisdiction u/s 476, Criminal Procedure Code. I am unable to agree with him in respect to his first contention. The order u/s 476 of the

Criminal Procedure Code was distinct from the order of dismissal. The Sessions Judge, in directing further inquiry, did not decide that the Sub-

divisional Magistrate''s view as to the falsity of the complaint was incorrect. The order to make further inquiry was, on the other hand, quite

consistent with his concurrence with the Magistrate as to the probable nature of the complaint. The case relied on by the learned Counsel, Kanullah

v. The Emperor (1907) 12 C.W.N. 1, does not support his contention. Thai case merely decides that when an appellate court dissents from the

opinion of the court of first instance deciding at the hearing of the suit that a statement made by a person was false and reverses the decree of that

court, an order u/s 476 of the Criminal Procedure Code passed by the lower court directing the prosecution of the deponent should be quashed. It

does not support the contention that the order ceases to be operative without being quashed.

Mr. Appasawmi''s second contention is sound in my opinion and should be upheld. Section 476, Criminal Procedure Code, empowers a court

to direct a prosecution only when it ""is of opinion that there is ground for inquiring into any offence referred to in Section 195 and committed

before it or brought under its notice in the course of a judicial proceeding"" after making any preliminary inquiry that may be necessary. A.

preliminary investigation by the court u/s 202, Criminal Procedure Code, is not a judicial proceeding, and it has been held that a person cannot be

prosecuted for an offence brought to the notice of the court during such investigation. See Queen-Empress v. Venkataramana ILR (1900) M. 223,

Asmatulla v. The Empress (1899) 4 C.W.N. 366 and In re Chotalal Mathuradas ILR (1898) B. 936. The order of the Sub-divisional Magistrate

in this case was admittedly based partly at least on what appeared at the preliminary investigation. The Magistrate says : ""There are discrepancies

which appear in the evidence adduced by the complainant to support his case. It is very plain that the story is a fabrication. In the original complaint

the man who is said to have gone to complainant''s house to fetch the money is not the same man who is brought forward to state that he played

this part in the affair. There are other discrepancies as to time."" The depositions of the witnesses at the investigation were not made on oath. It is

clear to my mind that an order u/s 476, Criminal Procedure Code, based on statements which do not constitute legal evidence is illegal. This is, if

necessary, rendered clearer by Section 478 of the Criminal Procedure Code which authorises the court acting u/s 476 to ""complete the inquiry

and commit the accused person ""to take his trial before the High Court or Court of Session as the case may be."" It is, of course, impossible to hold

that a committal could be made on what is not legal evidence, and I think it is equally clear that an inquiry which is to be completed must be of the

same character as the completing portion. The words therefore in Section 476, Criminal Procedure Code, ""when any Civil, Criminal, or Revenue

Court, is of opinion that there is ground for inquiring into any offence"" should be construed as meaning ""when there is legal ground for inquiring"",

etc. This is also clear from the fact that the matter should be brought under the notice of the court in the course of a judicial proceeding in which

evidence must be taken according to the rules of law. What the section requires is that the court should be of opinion that a prima facie case has

been made out against the accused justifying an inquiry similar to what is required when a court granting sanction for prosecution u/s 195, Criminal

Procedure Code. It has never been doubted that u/s 195, Criminal Procedure Code, sanction can be accorded only on legal evidence. There is no

reason for holding a different view with respect to Section 476 of the Criminal Procedure Code. In my opinion the court directing a prosecution u/s

476, Criminal Procedure Code, really takes a heavier responsibility on itself than it does in merely granting sanction to a private party to prosecute.

There are various provisions in the Criminal Procedure Code entitling a court to initiate an inquiry on information received or on suspicion, but

Section 476, Criminal Procedure Code, does not authorise it to do so. Moreover an order under that section in so. far as the court making it is

concerned is a final order and not merely one initiating proceedings though the order is preliminary to proceedings in another court, just as an order

of commital to a Court of Session is. I am therefore of opinion that the Sub-divisional Magistrate had no power to pass the order u/s 476, Criminal

Procedure Code, on what appeared before him at the preliminary investigation. There may be cases where a Magistrate might come to the

conclusion on the sworn statement of the complainant alone that his complaint was false and it may not be illegal to pass an order u/s 476 on what

appears in the sworn statement. But here the order is not based on the complainant''s statement alone and material reliance was placed by the Sub-

divisional Magistrate on the statement of complainant''s witnesses not made on oath. If the order were made on the sworn statement only, I should

be prepared to hold that the Magistrate did not exercise a sound judicial discretion in passing the order and to set it aside on that ground. It has

been held in several cases that it is unfair to direct a prosecution u/s 183 or 211 of the Indian Penal Code without giving complainant an

opportunity to adduce all his evidence in support of his complaint. See Lalje Gopeth v. Giridhari Chaudhari (1901) 5 C.W.N. 103 and Queen-

Empress v. Shamlal ILR (1887) C. 77. It was open to the Sub-divisional Magistrate in this case to pass fresh orders u/s 476 of the Criminal

Procedure Code after the discharge of the accused if the evidence taken on oath justified such an order in his opinion. He has not, however, done

so, and thi3 court is concerned only with the order passed on the 22nd November 1909. I would set aside that order.

Ayling, J.

With great deference tomy learned brother whose judgment I have had the advantage of reading I am unable to concur in his view that an order

u/s 476 of the Criminal Procedure Code must necessarily be set aside, because it proceeds (wholly or partly) on a consideration of the result of a

preliminary enquiry u/s 202 of the Criminal Procedure Code. The wording of Section 476 (when any Civil, Criminal, or Revenue Court is of

opinion that there is ground for enquiry into any offence, etc.) is wide enough, in my opinion, to cover the consideration of other than strictly legal

evidence already on record. The result of an enquiry u/s 202 has to be taken into consideration by the Magistrate in deciding whether to dismiss

the complaint or proceed with the case (vide Section 203) and I cannot see why it may not be legitimately considered before passing an order u/s

476.

I do not propose to deal with the question in detail, because I nevertheless, concur in the order proposed by my learned brother. I quite agree

that exceptionally strong reasons are required to justify an order u/s 476 in cases where the complainant has not been allowed to adduce the whole

of his evidence in support of his complaint. In the present case, only three of petitioner''s nine witnesses were examined by Stodart, his vakil''s

prayer for the production and consideration of certain police records was disregarded and the Magistrate''s order now sought to be revised while

containing sufficient ground for dismissing the complaint gives reasons which I should certainly not regard as adequate ground for ordering

prosecution. It is an order passed somewhat hastily and after very imperfect enquiry and which, in my opinion, cannot be upheld on its merits. I

therefore concur that the order of the Joint Magistrate u/s 476 of the Criminal Procedure Code, dated the 22nd November 1909, should be set

aside.

In the result the order of the Sub-divisional Magistrate dated 22nd November 1909 is set aside.