In Re: S. Vijayaraghavachari and Others

Devadoss, J.—This is an application for quashing the proceedings now pending before the Stationary Sub-Magistrate, Dharmapuri. In order

to understand the contention of the petitioners, it is necessary to mention a few facts. The Sub Divisional Magistrate of Dharmapuri was informed

by a mother and daughter of the commission of serious offences. He sent the daughter to the Medical Officer and on the 24th November he took a

sworn statement from the mother and from the daughter. He forwarded the complaint of the daughter to the Sub Magistrate, Dharmapuri, on the

24th, as he thought that an offence or offences triable exclusively by a Court of Sessions were disclosed in the sworn statement. He took the

mother''s case on his file and issued bailable warrants to the accused. The Sub-Divisional Magistrate who happened to go to Salem on some

business mentioned to the District Magistrate and the District Superintendent of Police about the complaint made to him by the mother and the

daughter. The District Superintendent of Police directed his subordinate, the Assistant Superintendent of Police, to enquire into the matter and, if a

case was made out, to file a charge-sheet before the Sub-Divisional Magistrate of Dharmapuri charging the accused under Sections 330 and 345,

Indian Penal Code. The Sub Magistrate, Dharmapuri has got three cases on his file one by the daughter transferred to him by the Sub-Divisional

Magistrate, Dharmapuri, the other by the mother which was also transferred to him and the third the case which was started on the charge-sheet of

the Police.

The contention of Mr. Ethiraj for the petitioners is that the Police had no power to charge-sheet a case which had been taken cognizance of by a

Magistrate and in which process had been issued by him. In order to appreciate this contention, it is necessary to see whether the Sub-Divisional

Magistrate did or did not issue process in both the cases. As regards the case of the daughter he did not issue process, as is clear from the report

which was read out by the learned Public Prosecutor. On the transfer of the case to the Sub-Magistrate u/s 192, he passed the following order:

Taken on P.R. File. Post to 16th December, 1927. Issue process to complainant, accused and prosecution, witnesses. Summon Medical Officer

Dharmapuri as witness."" It does not appear that any processes were issued by the dub-Magistrate, Dharmapuri, to the accused or to the

witnesses. Though he simply ordered process to issue there is nothing on record to show that any process was actually issued. That being so the

question is whether the Magistrate had power to order enquiry u/s 202. The contention is that the Magistrate having made up his mind to issue

process to the accused his power u/s 202 is taken away. I am unable to accept this contention. Section 202 contemplates that the Magistrate on

receipt of a complaint of an offence of which he is authorized to take cognizance or which has been transferred to him may, if he thinks fit, for

reasons to be recorded in writing, postpone the issue of process and ask the Police to make an enquiry. The mere fact that he ordered issue of

process does not take away from him the power to direct the Police to enquire into the case. In the daughter''s case the Police made an enquiry

not at the instance of the Sub Magistrate but at the instance of the District Superintendent of Police who, on information received from the Sub-

Divisional Magistrate, directed his subordinates to make an enquiry. That being so, it cannot be said to be an enquiry made u/s 202 and so the

order for issue of process is not of any consequence. But Mr. Ethiraj argued that there was no information upon which the Police could act and the

only information they had was the order u/s 156(3) made by the Sub-Divisional Magistrate, Dharmapuri, and that order having been made after he

issued process was without jurisdiction. No doubt if the Sub-Divisional Magistrate had asked the Police to make the enquiry u/s 156(3) after he

had issued process, his order would be without jurisdiction and the Police enquiry started under such an order would be illegal. It was held in In re

Arula Kotiah 11 Ind. Cas. 999 : (1911) 2 M.W.N. 74 : 10 M.L.T. 120 : 12 Cri. L.J. 463 that after a Magistrate had issued process, he had no

power to refer it to the Police u/s 156(3). But, as I said, in the daughter''s case, it was not the Sub-Divisional Magistrate, Dharmapari, who

ordered the enquiry and he could not have ordered an enquiry u/s 156(3) because the case was not on his file. The reasonable construction of

what the Police have done is this, the Police coming to know of the commission of serious offences no doubt through the District Superintendent of

Police, started an investigation, and in the course of the investigation, they got from the Sub-Divisional Magistrate''s file certain records which they

treated as the First Information Report. This fact would not make the investigation by the Police as one started u/s 156(3) that is at the instance of

the Sub Divisional Magistrate. So far as the daughter''s case is concerned, I have no hesitation in holding that the Police received information from

the Sub-Divisional Magistrate on which they could act and have acted and in the course of the investigation they got certain records from the Sub-

Divisional Magistrate''s office and made use of them in their enquiry. In such circumstances it cannot be said to be an illegal one. The mere fact that

a private complaint is filed in a Court and the Magistrate takes cognizance of the private complaint does not and cannot deter the Police from

enquiring into the offences which have been commited and which come to their knowledge not from the complainant party but on information

which they secure in the course of their duty from other persons. I hold the charge sheet in the daughter''s case is proper and as such the Police are

entitled to prosecute the case.

As regards the mother''s case, that case was taken on file by the Sub-Divisional Magistrate and he issued process to the accused, namely,

bailable warrants, and after that he informed the District Magistrate and the Police of the commission of serious offences and the investigation

started after the issue of process would not come u/s 202 as held in In re Arula Kotiah 11 Ind. Cas. 999 : (1911) 2 M.W.N. 74 : 10 M.L.T. 120 :

12 Cri. L.J. 463 that ""after the issue of process the Magistrate has no power to ask the Police to enquire into the case u/s 156(3)"". Therefore, so

far as the mother''s case is concerned that charge sheet is not a valid one and the Police are not entitled to conduct the case on the strength of that

charge-sheet. The learned Public Prosecutor urges that both the mother''s and the daughter''s cases are one and the same and it would not be

proper for the Public Prosecutor to conduct one case and a private prosecutor to conduct the other. I think it is unnecessary to express an opinion

on this point. It is open to the Magistrate to allow the Police or anybody else to prosecute the mother''s case. It is open to her to engage her own

Counsel and conduct the case.

So far as the daughter''s case is concerned, the conduct of that case must be entirely left in the hand of the Police. The mere fact that there was a

private complaint would not take away the right of the Police to conduct the prosecution as they have laid a charge sheet.

This case has been fully and ably argued by Mr. Ethiraj and the Public Prosecutor and I am much obliged to them for bringing to my notice all

the points in the case.

With these remarks the petition is dismissed.