Jokhi Mian vs Mahmud Dafadar and Others

Macpherson, J.—This is a reference u/s 438, Criminal P.C., by the Sessions Judge of Purnea recommending that the order of the Sub-Divisional Magistrate of Araria dated 24th August summoning the petitioner, Jokhi Mian u/s 182, I.P.C., be set aside.

The petitioner filed a complaint before the Magistrate who after examining the petitioner sent the complaint to the Sub-Inspector of Forbesganj for inquiry and report. The Sub-Inspector reported the case to be maliciously false, recommended the prosecution of the petitioner u/s 211, Penal Code, and preferred a complaint of that offence against the petitioner. The petitioner filed a petition impugning the report and praying the Magistrate to make a judicial inquiry. In an order of 3rd August in which he recited these facts the Magistrate directed the Sub-Inspector to submit a report for prosecution u/s 182 and on 24th August on receipt of the "report for prosecution" issued summons on the petitioner u/s 182.

The learned Sessions Judge rightly points out that the alleged false information was given to the Sub-Divisional Magistrate. Though the complaint had been sent to the Sub-Inspector for inquiry and report, the petitioner had actually given him no information. Accordingly Section 195(1)(a), Criminal P.C., bars a complaint by the Sub-Inspector of an offence u/s 182 since he was not "the public servant concerned" or the superior of such public servant to whom the false information punishable u/s 182 was given. If the offence is one u/s 182, no complaint of it could be laid by any person except the Sub-Divisional Magistrate himself. But the complaint was one of house trespass, extortion and other offences and properly fell under the provisions of Section 211; and as it was committed in relation to the Court of the Sub-divisional Magistrate, Section 195(1)(b) is a bar to cognizance being taken of it except on the complaint of that Court.

The order under reference is accordingly wrong in law and must be set aside. It may also be indicated that, if not illegal, it was at all events improper to prosecute the petitioner before the complaint, in respect of which he was to be prosecuted, was finally disposed of u/s 203, Criminal P.C., or otherwise.

The learned Sessions Judge has, however, suggested that before a prosecution u/s 182 or Section 211 can be legally started the Magistrate must allow an opportunity to the person who is to be prosecuted, to prove the truth of the information or charge in respect of which it is proposed to prosecute him. That, however, is not the law, at any rate in all cases. Thus when a complaint is made by a public servant of an offence punishable u/s 182, Penal Code, the Magistrate is governed only by the rules in Ch. 16, Criminal P.C. As in a complaint made by a private person he will normally issue summons but in exceptional cases, "for reasons to be recorded in writing" he may u/s 202 postpone issue of process and make an inquiry or direct a magisterial or police inquiry or investigation. The position would be the same if a police officer complained, for instance, u/s 211, I.P.C.

Apart from a complaint made by a Court u/s 476(1), Criminal P.C., no complaint is in any sense invalid merely because the person accused has not had an opportunity of showing cause against the complaint being made. And in the exceptional case mentioned it is a question of discretion whether the Court should hold a preliminary inquiry before making a complaint in writing to a Magistrate, while the Magistrate on receiving such complaint is u/s 476(2) to proceed exactly as on receiving a complaint u/s 200, that is, normally he will summon the accused and in exceptional cases he will act u/s 202.

The object of the legislature in enacting the new Sections 476, 476A and 476B, was to sweep away the cloud of rulings which threatened to smother the original enactment and to lay down a simplified procedure on the lines of the existing procedure as to complaints.

The reference is accepted and the order of the Sub-Divisional Magistrate dated 24th August 1927 is set aside. If the Magistrate contemplates proceeding against the petitioner u/s 182 or u/s 211, I.P.C., he should first dispose of his complaint and thereafter should himself prefer a complaint to a Magistrate.