Kantir Missir vs Emperor

Macpherson, J.—This matter has a lengthy and tangled history and with a view to avert in future cases some at least of the difficulties which have arisen I deal with it at some length.

The petitioner, who is clerk of an advocate of this Court, lodged information before Sub-Inspector D. Mukerji in charge of the Kotwali police-station, Patna, on 13th June against the chauffeur of his master who he alleged had taken an advance of Rs. 35 and then decamped without permission taking away also motor accessories of the value of Rs. 55-8-0 a list of which he supplied. The case was made over to and investigated by the junior Sub-Inspector Ram Singh who on 23rd June reported it to be maliciously false and prayed that orders be passed for the prosecution of the complainant for an offence u/s 211, I.P.C. Having perused the report the Sub Divisional Magistrate on 3rd July on an ordersheet marked G.R. (General Register) No. 253 of 1928 recorded that the investigating officer reported the case to be maliciously false and directed notice to issue to the petitioner to show cause why he should not be prosecuted u/s 182 or Section 211, I.P.C.

On 19th July a complaint by Sub-Inspector Ram Singh dated 13th July u/s 211 was put up to the Su-b Divisional Magistrate who directed it to be placed with the record. On that date also the petitioner showed cause verbally through a pleader but filed no petition. On 25th July the Magistrate recorded that having carefully gone through the case diary of the investigating officer, he had come to the conclusion that the petitioner should be prosecuted u/s 182 and added:

The Sub-Inspsctor of Police before whom the information was lodged has already filed a complaint. Summon Kantir Missir u/s 182, I.P.C.

Thus summons was issued upon the complainant already mentioned and the ordersheet thenceforward showed the case as No. 253 G.R.,/643-C, the latter number being that of Sub-Inspector Ram Singh''s complaint in the Complaint Register.

On 14th August the case was transferred to Thakurai B.D. Singh for disposal. On 23rd August an application was made to the High Court but was returned with a suggestion to apply to the District Magistrate. An appeal to the Sessions Judge was rejected on 27th August and a motion to the District Magistrate on 4th September. In the latter the only legal flaw suggested was that the Sub-Divisional Magistrate took cognizance before a complaint had been lodged, and the fact alleged was negatived.

On 17th September this Court made absolute a rule obtained on behalf of the petitioner substantially on the ground that the Sub Divisional Magistrate having called upon the petitioner to show cause against his intended prosecution should not have reduced the opportunity so afforded to a mere formality but should in the circumstances of the case, where three legal practitioners were alleged to support the prosecution story, have discussed the cause shown. Thereafter the judgment proceeded:

If the learned Sub-Divisional Officer is inclined to proceed against the petitioner he should examine the witnesses mentioned in the first information report and then make up his mind as to whether it is expedient in the interests of justice to put the accused on his trial or not.

When this order was communicated to the Sub Divisional Magistrate he stayed proceedings on 17th October noting on the order-sheet of Case No. 643-C that he understood that the police officer concerned was about to file a complaint. The point was that so far as an offence u/s 182 was concerned, the complaint of Sub-Inspector Ram Singh was not tenable by reason of Section 195(1)(a) since it was not made by the:

public servant concerned or some other public servant to whom he is subordinate,

the information to the police having been given not to him but to the Sub-Inspector in charge of the police station. Accordingly the record of the original case was deemed to be closed and when Sub-Inspector D. Mukerji lodged before the Sub-Divisional Magistrate a complaint against the petitioner u/s 182, a new case record was started and numbered 1016-C of 1928 and on 4th December summons u/s 182 was issued on petitioner. On the same date the case was transferred for disposal to Thakurai B.D. Singh who fixed the hearing for 17th. On 10th December, however, Case 1016-C was withdrawn by the Sub-Divisional Magistrate to his own file and he directed that it should await the disposal of Case No. 643-0. In the order-sheet of the latter under the same date the Sub Divisional Magistrate set out that as another case had been started on the complaint of Sub-Inspector D. Mukerji before whom the first information was lodged and who was the proper person to file the complaint, further steps had not been deemed necessary in case No. 643-C as the Magistrate''s order summoning the accused had already been set aside by the High Court, but as the accused had filed a petition to the effect that the orders of the High Court had not been complied with and the new complaint should be dismissed and as the accused seemed to insist that the new case should not proceed, he gave him an opportunity to prove his case by examining witnesses named in the first information report. He explained that as the-new complaint was filed by a different complainant he had not thought it incumbent upon him, to take therein the'' action indicated by the High Court in the earlier case.

On 17th December the District Magistrate disposed of an ''appeal'' or application u/s 195(5) made by the petitioner against the order of the Sub-Divisional Magistrate taking cognizance of the complaint of Sub-Inspector D. Mukherji and summoning the accused on the ground that in view of the order of the High Court the Magistrate had no jurisdiction to entertain the complaint. The learned District Magistrate held that the Sub-Divisional Magistrate had acted strictly in accordance with the order of the High Court and proceeded:

In view of this I do not think it is necessary for the case u/s 182, I.P.C. (Case No. 1016 1 of 1928) to proceed and I accordingly direct that this case shall he withdrawn. If the learned Sub-Divisional Officer after examining the witnesses produced by the present petitioner and considering the other papers in the case comes to the conclusion that the case is false, he can himself file a complaint for his prosecution under Sections 211 or 182, I.P.C.

The Public Prosecutor appeared in case No. 1016-C of 1928 and withdrew the case whereupon the Sub-Divisional Magistrate recorded an order of discharge u/s 494, Criminal P.C.

The petitioner was then called upon to produce his witnesses in case No. 643. He appeared eventually and pleaded that the High Court had directed the Magistrate to summon the witnesses and not to ask the petitioner to produce them. The Magistrate stated that he had no objection to summon them but would examine the petitioner straightaway, not as an accused but as the person who gave information to the police, whereupon the petitioner''s pleader expressed his intention of moving an application for transfer if the Magistrate insisted upon the examination of the petitioner that day, and the case was accordingly adjourned.

The petitioner then moved this Court for a rule for the transfer or the quashing of the proceedings and as Mr. K.B. Dutt contended on his behalf that the order of the District Magistrate was without jurisdiction it was assumed that if the earlier proceedings were dropped on the ground that the complaint of Sub-Inspector Earn Singh was not valid so far as Section 182 is concerned, all that would be necessary would be to deal with the complaint of Sub-Inspector D. Mukherji incase 1016-C by setting aside the order of summons passed thereon and directing in the very special circumstances that the Magistrate proceed on the lines of the direction or suggestion of this Court in case No. 643-C.

But with the assent of the Crown the case has been argued as if an open rule had issued. The contention of the learned vakil now is that the proceedings should be set aside because the complaint of Sub-Inspector D. Mukherji having been lawfully withdrawn u/s 195(5) by an authority having jurisdiction to do so, nothing remains against the petitioner except an invalid complaint of Sub-Inspector Earn Singh, the Sub Divisional Officer having no power to make a complaint either executively or judicially, and that in any event the proceedings should be transferred to another Court owing to general prejudice as the petitioner does not want to prove his case and is not even entitled to give evidence and yet the Sub-Divisional Magistrate insists on examining him.

To appreciate those submissions and the reply of the Crown it is essential to ascertain the legal position at each stage.

When issuing notice on the petitioner on 3rd July, the Sub Divisional Magistrate manifestly was not acting upon the investigating Sub-Inspector''s report for prosecution, and apparently the Sub-Inspector himself contemplated a mere formal complaint, which in fact he sent in on 13th July. The Magistrate on 3rd July seems either to have been acting administratively or u/s 476 read with Section 195(1)(b) through inadvertance in Daroga Gop v. Emperor AIR 1925 Pat.717.

It is indeed held that Section 195(1)(b) applies if the judicial proceeding is in existence at the time when it is sought to prosecute the offender for the offence in question. But as there was at the time no proceeding in existence in his Court, these provisions were of course inapplicable. And he did not take cognizance of the complaint of Sub-Inspector Earn Singh, under which the bar in Section 190(1)(a) might be supposed to be removed, until the 25th, or at the earliest 19th.

Next when petitioner appeared on 19th July he cautiously refrained from filing any written petition, as is usually done, being apprehensive that under the decision cited it might be treated as a complaint and that the Magistrate could then act u/s 476, as the offence u/s 211 would then be committed in, or in relation to a proceeding in this Court.

Again the complaint of Sub-Inspector Earn Singh of an offence u/s 211 does not, on the ruling of this Court in In Re Barhamdeo Singh, comply with Section 195(1)(a) so far as an offence u/s 182 is concerned, as he was "not the public servant concerned," being only the investigating officer and not the public servant to whom information was given.

The order of this Court as well as the direction or suggestion with which the judgment concluded assumed that the Sub-Divisional Magistrate had taken cognizance of the complaint and it operated to replace matters at the stage of cognizance and of starting on an inquiry u/s 202.

The action of the Sub-Divisional Magistrate on receipt of the High Court''s order showed that he was not "inclined to proceed against the petitioner," the reason being that he then considered only Section 182 and doubted whether the proceedings under that section were legally well-founded on the complaint of Sub-Inspector Earn Singh.

The complaint of Sub-Inspector D. Mukherji, however, did not suffer from any legal defect and the procedure adopted in respect of it was correct so far as legality alone is concerned. As was said in Jokhi Mian Vs. Mahmud Dafadar and Others, :

When a complaint is made by a public servant for an offence punishable u/s 182 the Magistrate is governed only by the rules in Chap. 16, Criminal P.C. As in a complaint made by a private person he will normally issue summons but in exceptional cases, "for reason 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 possibly from n 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.

In this instance, however, the circumstances were specially exceptional-the High Court had already expressed an opinion in another case on the same subject matter and the preferable procedure therefore was that the Magistrate on taking cognizance of the complaint of Sub-Inspector D. Mukherji should hold an inquiry u/s 202 before issuing process.

What a pity it is that the learned Sub-Divisional Magistrate should have allowed himself to be flustered and stampeded as indicated in his order of 10th December. It was not open to him, once he had issued summons, to go back. He had acted in case No. 643-C strictly in compliance with the order of this Court and if there was some appearance that he had not, he ought to have trusted this Court to distinguish the real from the apparent. It was alike legal and proper that action against the petitioner u/s 182, I.P.C. should proceed on the complaint in case No. 1016-C, but the Magistrate, because of the suggestion of this Court in case No. 643, should, in the exercise of a sound discretion, have proceeded u/s 202.

The next question is whether the District Magistrate had jurisdiction u/s 195(5) to order the withdrawal of the complaint in case No. 1016-C. Is the District Magistrate an authority to which an officer in charge of a police station is subordinate within the purview of that provision? The Sub-section is new and it is to be observed that the language differs from Section 195(1)(a) where the person whose complaint is required to remove the bar to prosecution is the public servant concerned, or some other servant to whom he is subordinate.

The decisions of the Allahabad and of the Calcutta High Courts differ as to whether an officer of police in his district is subordinate to the District Magistrate, the former basing their affirmative answer on the terms of Section 4, Police Act 1861 which place the police under the general direction and control of the District Magistrate. But whether the police are public servants subordinate to the District Magistrate under Sub-section 1(a) or not, I see no reason to doubt that the very wide expression in Sub-section 5 any authority to which such public servant is subordinate connoting apparently a more distant and general entity than departmental superior, covers the District Magistrate in relation to the police of the district. It would not seem at all unreasonable that the legislature should restrict the making of the complaint to the department and yet permit the withdrawal thereof (at times perhaps on grounds of policy transcending departmental considerations) by superior authorities also. It follows that the withdrawal of the complaint in case 1016-C was valid, and as the District Magistrate exercised jurisdiction administratively, his order is not open to interference by a judicial tribunal, which moreover would be most reluctant to interfere in such circumstances even if it was entitled to do so. It does not matter therefore that his reason for the withdrawal rested on what in the obscure circumstances may well have been a misconception of law, such as that the Sub-Divisional Officer could himself file a valid complaint.

When the authority referred to u/s 195(5) forwards a copy of its order of withdrawal of a complaint to the Court the enactment provides that on receipt thereof by the Court, no further proceeding shall be taken on the complaint. Not only was such a copy sent but the District Magistrate himself noted on the order sheet of case 1016-C his order of withdrawal. Action u/s 494, Criminal P.C. was at least superfluous and only complicated matters, as the only order possible u/s 494 was one of discharge. Whether it could have the effect of introducing the Local Government into the category of authority'' u/s 195(5) need not here be decided as it has been held that the District Magistrate acting administratively had authority to withdraw the complaint in Case No. 1016-C. In my opinion that case is finally closed, unless possibly the District Magistrate''s order could be revised by the Commissioner or by the Local Government as to which it is not necessary to express any opinion.

In support of the contention that the complaint of Sub Inspector Ram Singh could not remove the bar u/s 195(1)(a), reference is made to the decision of a Bench of this Court in In Re Barhamdeo Singh, . That decision is binding on me. According to it, the Sub-Divisional Magistrate could not take cognizance of a complaint of Sub-Inspector Ram Singh of an offence u/s 182. But Sub-Inspector Bam Singh did not complain of such an offence, He complained of an offence u/s 211 and the question whether the investigating police officer could prefer a complaint u/s 211, even if he was not the public servant to whom information had been given was expressly not considered by the learned Judges. The decision is therefore not applicable.

I am unable to discern any reason why even if a Magistrate is disentitled by a statutory bar to take cognizance of any offence u/s 182 cognizance by him of an offence u/s 211 should also be barred without any statutory povision to that effect. No doubt Section 182 is a minor offence to Section 211, and in a trial on a charge under S, 211 there may u/s 238(2) be a conviction of an offence u/s 182, if the intention to injure, which is an essential ingredient in Section 211, is not established against the person who is proved to have lodged false information charging a person with having committed an offence. But the inwardness of the matter here is that if the intention to injure is not established there cannot on the section itself be a conviction u/s 211, and also, since Section 238(2) must yield to Section 195(1)(a), there cannot be conviction of the minor offence u/s 182. Thus there is no bar to cognizance being taken of an offence u/s 211 on the complaint of the investigating police officer though he is not also an officer referred to u/s 195(1)(a); but if the charge u/s 211 fails, there cannot by reason of Section 190(1)(a), Criminal P.C. be a conviction u/s 182, I.P.C.

Next since the offence u/s 211, has not been committed in or in relation to a proceeding in any Court, Section 195(1)(b) is no bar to cognizance of a complaint of that offence. Again it cannot, after cognizance has been taken, be brought u/s 195(1)(b) by any complaint which may thereafter be filed by the present petitioner. The decision in Daroga Gop v. Emperor AIR 1925 Pat. 717 is not applicable because, as has been pointed out in Parmanand Brahmachari v. Emperor AIR 1930 Pat. 30 the formal complaint of the offence had in Daroga Gop v. Emperor AIR 1925 Pat. 717 been filed in Court by the informant u/s 211 before the formal complaint of the police officer against him was submitted to the Court whereas here the Court has already taken cognizance of the Sub-Inspector''s, complaint and

It is impossible to hold that when a Magistrate has taken cognizance of a complaint, anything that can subsequently happen will suffice or anything in Section 195(1)(b) can operate to deprive him of jurisdiction to proceed thereon in accordance with law.

The main contention of the petitioner therefore fails and case No 643-C must proceed as a complaint u/s 211, I.P.C. Both on his own initiative and by reason of the direction of this Court the Sub Divisional Magistrate is committed to an inquiry u/s 202. As he appears to be somewhat uncertain as to procedure under that provision, he may obtain some assistance from the following quotation from the decision cited above:

It is next urged that in any event the petitioner was not afforded adequate opportunity of showing cause against his prosecution. Assuming that under the superseded provisions-of the Code he was entitled to such an opportunity, he is no more entitled to it under the-procedure laid down in the amended Code than, any other person against whom a complaint is made. It was open to the Magistrate to issue process without any notice to him if on reading the complaint he found sufficient ground, for proceeding, or to proceed u/s 202 for the purpose of ascertaining the truth or falsity of the complaint. An inquiry or investigation u/s 202 is designed to afford the Magistrate an opportunity of either confirming or removing such hesitation as he may feel in respect of issuing process against the accused : The nature of the inquiry varies with the circumstances of each case, and it is certainly not contemplated that it should always be exhaustive. Frequently all that is required is the elucidation of some minor point or the summary determination of the sufficiency of the available evidence, but least of all is the inquiry a preliminary trial of the accused at which he is entitled to adduce his evidence before process can issue upon him. The degree of formality of the proceedings and the width and depth of the inquiry is entirely in the discretion of the Magistrate (so long at least as he confines himself to the simple question of issue of process or dismissal of the complaint). The provision is enabling and not obligatory as soon as he has satisfied himself that process should issue, its object is fulfilled and it is certainly not incumbent upon him or ordinarily expedient that he should practically enter upon a trial of too case.

Ordinarily therefore the Magistrate would have called upon the complainant Sub-Inspector Earn Singh to prove his case, but under the very exceptional circumstances this Court has already indicated the procedure appropriate to the particular case, namely, that the Magistrate having failed to issue process at once on the complaint should before making up his mind to do so examine the witnesses whom the petitioner named in his first information and who are of good position, and deal with the points raised by him in showing cause. This must now be done but while the complainant''s side must naturally also be considered, it is inexpedient, as indicated above, that this inquiry u/s 202 should develop into something comparable to a preliminary trial.

There is no foundation whatsoever for the prayer that the proceedings should be quashed on the ground that the petitioner has been harassed, the fact is that he has expended his energy on artifices to delay or avert inquiry, and nothing could be more prejudicial to the administration of justice than to place a premium on such tactics.

As to the application for transfer, I see no reason to entertain it. In the course of his extensive wriggling, the petitioner manoeuvred the Magistrate into passing an order which though incorrect was intelligible in the tangled state of the proceedings, namely that the petitioner should give his own deposition. Whether the position of the petitioner was that of a complainant or that of an accused was obscure by reason of the confusion occasioned by the use of terminology based on rulings under the unamended Code. As he had guarded himself against filing a ''complaint,'' the petitioner had no locus standi "to prove his case."

It has now been ascertained that he is at present in the position of an accused on whom process has not yet been issued so that the Magistrate acting u/s 202, Criminal P.C., may, if so advised, accept any explanation from him but cannot force him to depose. But the order of the Magistrate was due merely to a misconception of the position. There is no adequate reason to transfer the complaint from his file now that misconceptions which indeed were general, have been removed and it would be highly inexpedient to do so at this stage. But if after this inquiry u/s 202 which should be conducted by him with all reasonable expedition he decides that the accused should be placed on trial u/s 211 he will after issuing process on the complaint transfer the case for disposal to some other Magistrate of the First Class who is subordinate to him.

sApart from the direction as to the manner of inquiry and as to transfer, the rule is discharged. Let the record be sent down at once.