Kanhalyalal (Accused) vs Nilkanth (Complainant)

S.B. Sen, J.—This is a peculiar case. One Nilkanth, a Deputy Collector was driving his car through market in Jhabua when a dog was run over and killed. One Kanhaiyalal stopped his car and made an attempt to pull him out and intimidated. A report of this was made to the Police on the same day.

After investigation the police forwarded a report to the Additional District Magistrate, Jhabua recommending that the case be dropped. Nilkanth was sent for by the Additional District Magistrate. He raised certain objections to the investigation by the police and submitted that the inquiry was not proper and a fresh inquiry should be made. The Additional District Magistrate considered that further inquiry was necessary and transferred the case to the Magistrate 1st Class, Thandla to inquire into the matter further.

The case thereupon went on transfer along with the police record to the Magistrate First Class, Thandla who made preliminary investigation u/s 202, Criminal Procedure Code and found that there was a prima facie case. He, therefore, registered offences under sections 341 and 506, Indian Penal Code and summoned the accused. The proceedings thereupon went on in the usual course.

On 28-8-62 the accused Kanhaiyalal made an application praying that the copies of all the police papers including the first information report and all other documents on which the prosecution proposed to rely be supplied to him. The Magistrate dismissed the application. The accused then went up in revision to the Additional Session Judge, Jhabua who made a reference to this Court for quashing all the proceedings taken by the Magistrate on the ground that the procedure adopted by the Additional District Magistrate was illegal.

According to him, the Additional District Magistrate either could have agreed with the police about the cancellation of the case or not. In the former case it would be open for Nilkanth to make a private complaint but in case he disagreed with the police recommendation he would be at liberty to take cognizance of the offence u/s 190(b). But in that case he has got to satisfy himself that all the documents referred to in section 173 were furnished to the accused.

It has not been disputed that the police made a recommendation for cancellation of the case. But I do not agree that once the police recommends cancellation, the Magistrate or the Additional District Magistrate cannot start proceedings.

u/s 190(1), a District Magistrate or a Sub-Divisional Magistrate may take cognizance of any offence under the following circumstances: (a) upon receiving a complaint of facts which constitute such offence, (b) upon a report in writing of such facts made by any police officer, (c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.

The case did not come under (b) because it is clear that the police did not make any complaint in writing of facts. But I do not understand why the Additional District Magistrate could not take cognizance under (a). It is pertinent to note that under clause (b) the report must be in writing. A complaint under clause (a) need not be in writing. The words "in writing" does not appear in (a). When Nilkanth was summoned before the Court by the Additional District Magistrate he made a complaint about the offence and stated that the police did not investigate the case properly.

In fact there was a writing which though made to the police, ultimately came to the Additional District Magistrate. The words used in section 190(1) are "upon receiving a complaint of facts which constitute such offence." The complaint of facts need not come directly from the complainant. The complainant handed over the facts to the police in writing. This writing was received by the Additional District Magistrate. The police did not want to proceed with the case. They should have asked the complainant to go to the Court if necessary. Instead the police itself sent the papers along with the complaint to the Additional District Magistrate though with a recommendation that the case should be dropped. It appears therefore that the complaint in writing was sent to the Additional District Magistrate. Therefore it clearly comes u/s 190(1)(a), Criminal Procedure Code.

As regards the power of the Additional District Magistrate for transfer two objections have been raised. First, that the Additional District Magistrate did not take cognizance of the case and secondly, he had no power to transfer the case to the subordinate Magistrate u/s 192.

I do not think these objections can stand. u/s 10(2), Criminal Procedure Code, the Additional District Magistrates have all the powers of a District Magistrate under the Code. It is not that the Additional District Magistrate was not invested with the power of transfer. The objection which has been raised that u/s 192, Criminal Procedure Code the Additional District Magistrate shall be deemed to be a subordinate of the District Magistrate does not take away this power of the Additional District Magistrate. Additional District Magistrate has therefore power to transfer.

The next objection was that the power u/s 192 can only be exercised after he has taken cognizance of the case. The objection is that the Additional District Magistrate did not take the cognizance of the case at all. The words used in section 192(1) are "of which he has taken cognizance," What is meant by taking cognizance has not been defined. The inference that he has not taken cognizance is drawn from the fact that he had written while transferring the case to the Magistrate, Thandla to the effect:--

"In this case it is necessary to have a preliminary inquiry. Therefore I transfer this case to Shri J. D. Shriwastava, Magistrate I class, Thaadla with direction that if after preliminary inquiry it is found that the accused has committed any offence, a cognizance of it may be taken and the case be disposed of,"

The above is only one way of saying. The order-sheet of the Additional District Magistrate dated 25-10-1961 of which the latter portion has been quoted by the Additional Sessions Judge in his order of reference, would clearly indicate that he had applied his mind to the facts of the case. It is only when a Magistrate applies its mind to the facts of the case that he takes cognizance of it. In fact when the police sent a report for dropping of the case, Nilkanth the complainant filed an application. On the basis of this application he perused the complaint made to the police. He read out police papers and then passed the order. It was not that as soon as the case came before him he transferred it for disposal. He took cognizance of the case when he felt that some more investigation was necessary.

u/s 200, Criminal Procedure Code the Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any. But this is subject to proviso (a) that when the complaint is made in writing the Magistrate need not require to examine the complainant before the case is transferred u/s 192. It is, therefore, clear that a Magistrate can take cognizance and without examining the complainant transfer the case. What is necessary is that the complaint should be in writing. It has already been seen that there is a complaint in writing though it has come through the police. It is nowhere laid down that the complainant himself has to complain before the Magistrate concerned. If any complaint in writing comes through the police the Magistrate can certainly accept the same.

I, therefore, do not see that there is any illegality in transferring the case to the Magistrate 1st Class, Thandla, u/s 192, Criminal Procedure Code.

But as regards the giving up the copies applied for by the accused ho is entitled to have the same. The accused is always entitled to have the statements of witnesses examined before the Court or made to the police and also the documents which the prosecution wants to utilise. Whether the case is registered on a police report or on a complaint, the accused is entitled to the previous statement of the complainant whether made to the police or otherwise. He is also entitled to have the copies of the documents--prosecution wants to rely or in possession of the police. Section 162, Criminal Procedure Code entitled the accused to the copies of statements reduced to writing.

I do not think that the Magistrate was justified in refusing the copies. section 173 says that the investigation shall be completed without unnecessary delay and as soon as it is completed officer-in-charge of the Police Station shall forward a report. In that report he has got to mention all the details of the offence, the names of the parties, nature of the offence and other things. That the police has done but in addition it recommended that there is no case against the accused.

u/s 173(4) after forwarding a report under this section the officer-in-charge of the Police Station shall before the commencement of the inquiry or trial furnish or cause to be furnished to the accused free of cost a copy of the report recorded under Sub-section (1) and of the first information report recorded u/s 154, and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely including the statements and confessions, if any, recorded u/s 164 and the statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

From a reading of Sub-section (4) it is clear that after forwarding a report u/s 173 it is incumbent on the Police Officer to give copies of documents on which the prosecution relies and other papers as stated above. It is nowhere mentioned u/s 173 that in case the police recommends the case should not be proceeded with they are not liable to give copies mentioned therein.

We have to understand the distinction between sections 251-A and 252, Criminal Procedure Code. u/s 251-A, a procedure has been laid down on a police report. Under this section the Magistrate has to satisfy himself that the documents referred to in section 173 have been given to the accused or not, whereas u/s 252 there is no such duty cast on the Magistrate. Simply because no duty is cast to inquire whether the accused has received the copies or not it does not mean that the accused is not entitled to the documents referred to u/s 173 if he is otherwise entitled.

The accused is entitled to all the benefits in the trial. Inquiries have been made previously and he certainly can take advantage of that inquiry. The police report is after all an opinion. It will certainly not influence the Magistrate. But that does not mean that the accused will not be entitled to a copy of the report. Even in a case instituted under a police report, the report is necessary to know what the case against the accused, is.

The next question is whether the Magistrate at Thandla to whom the case was transferred by the Additional District Magistrate had jurisdiction to try the case. This objection was not raised by the accused but it has been mentioned by the Additional Sessions Judge that the offence took place within the jurisdiction of the Magistrate. Jhabua.

u/s 12, Criminal Procedure Code, the State Government may appoint besides the District Magistrate, Magistrate 1st Class, 2nd Class or 3rd Class and the State Government or the District Magistrate may define local areas within which such persons may exercise all or any of the powers with which they may respectively to be invested. Under Sub-section (2) of section 12 it is clear that the Magistrate shall exercise jurisdiction throughout the District if there is no notification limiting the area.

Shri J. D. Shrivastava, Civil Judge Class II, Thandla, under notification No. 25648-9224-XXI-B, dated 3-9-1960, published in the M. P. Gazette dated 16-9-1960, on page 1460, has been appointed as Magistrate 1st Class for the whole of the Jhabua revenue district. There is no notification by the State Government limiting his jurisdiction as contemplated under Sub-section (2) of section 12, Criminal Procedure Code. Section 177, therefore, does not come in the way and the Magistrate, Thandla, therefore, could try the case.

For the reasons stated above the reference is rejected. With the observations that the accused is entitled to the papers asked for the case is sent back to the trial Court. The trial Court is directed to proceed further and dispose of the case according to law.