Lalbihari Singh vs Emperor

Wort, J.—This Rule was granted against the conviction of the applicant for an offence u/s 211 of the Indian Penal Code. The questions raised do not involve any consideration of the merits or demerits of the charge u/s 211 but relate to the earlier procedure in the case it being argued by the learned Advocate on behalf of the applicant that having regard to the manner in which the learned Magistrate toot cognizance of this case the procedure adopted by him was contrary to law and that, therefore, the conviction cannot stand.

The argument is two-fold. Whether the arguments in favour of the first branch of the contention should be upheld depend upon what is decided as regards the date at which the Magistrate in this case took cognizance of the matter. Equally the second branch of the argument depends upon the same question. The facts which will indicate as to what is meant by my statement are few and can be stated quite shortly.

It appears that there was a Police investigation into a charge u/s 379 of the Indian Penal Code. This case, had been brought on the complaint of the applicant. An investigation was made as I have already indicated and the Police reported that the charge against the accused appeared to be false. It appears also that the Police were of the opinion that the charge had been made by the applicant against the accused in that case, that is to say u/s 379, on the ground that he had some sort of grudge against him. On receipt of this report the Magistrate made an endorsement thereon. "False u/s 379. Action should be taken u/s 211, Indian Penal Code." As a result of that a complaint was ultimately lodged by the Police with the Magistrate.

The question as I have stated, so far as one part of the argument is concerned depends upon whether the Magistrate took cognizance of the matter when the endorsement to which I have referred was made the endorsement being that action should be taken u/s 211. The other part of the argument, as I have already indicated depends upon whether the Magistrate in fact took cognizance of the case when the complaint was ultimately lodged by the Police.

Mr. Yunus on behalf of the applicant is content with asserting that it matters not to him whether cognizance was taken at the earlier stage or at the later stage. If at the earlier stage then certain provisions of the Criminal Procedure Code apply. These, it is argued have not been complied with and, therefore, it being an illegality and not a mere irregularity the conviction, cannot stand. On the other hand if the cognizance was taken at the later stage equally there are certain provisions of the Criminal Procedure Code applicable which had not been complied with and again for that reason the conviction cannot stand.

Now, assuming for the purpose of my judgment in the case that it was at the earlier stage at which cognizance was taken that is to say the moment when the Magistrate wrote the endorsement on the Police report that action should be taken u/s 211, Indian Penal Code, Mr. Yunus argues that if that be so, then cognizance was taken by the Magistrate under Sub-clause (c) of Sub-section (1) of Section 190, that is to say, 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 other sub-clauses of that sub-section are as follows:

(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.

The importance of deciding the question under which of those sub-clauses cognizance was taken is shown by a reference to Section 191 and it was, therefore, on this branch of the argument necessary for Mr. Yunus on behalf of the applicant to argue that cognizance was taken under Sub-clause (c). If that be the case then it was necessary for the Magistrate to give the accused person the option which he was bound to do u/s 191 of the Criminal Procedure Code, that is to say, he was bound to inform the accused of the fact that he could be tried if he so desired by another Magistrate.

On behalf of the Grown it is argued, however, that cognizance in this case, assuming that it was taken at the earlier stage was taken under Sub-clause (6), that is to say, upon a report in writing of such facts made by any Police Officer.

Mr. Yunus on behalf of the applicant argue that that sub-clause does not apply for the reason that the Police Officer was not at the time making a report of such fact as disclosed an offence u/s 211, or to put it more accurately that he was reporting on what was not an offence u/s 211 but an alleged offence u/s 379, and, therefore, the matter did not come under Sub-clause (b) of Sub-section 1 of Section 190. On behalf of the Grown it is argued, however, that it does not come under Sub-clause (c) because that sub-clause is confined only to those cases in which information is given by a person other than a Police Officer.

In answer to that Mr. Yanus says that the expression "other than a Police Officer" regulates only the first part of the sub-clause and has no reference to the later part that is the part which states "upon his own knowledge or suspicion, that such offence has been committed." It is argued on behalf of the applicant that the expression, for instance "upon his own knowledge" indicates that that knowledge may be obtained from any source that is to say it does not include only those cases in which the Magistrate gains knowledge from various sources but may include the knowledge which is gained from, for instance, a Police report. In my judgment, however, that contention is not well-founded. Sub-clause (b) of Sub-section (1) clearly states "upon a report in writing of such facts made by any Police Officer." It is difficult to see why Sub-clause B was enacted if "his own knowledge" may be gained from a Police report.

What happened here is that certain facts were disclosed which, if a certain view of them was taken and if in fact their statement was to be relied upon did disclose an offence u/s 211 of the Indian Penal Code.

Mr. Yunus, however, relies upon a decision in the case of Queen-Empress v. Sham Lall 14 C. 707 (F.B.). That was a case which was not so far as its facts were concerned dissimilar from the present. In that case a statement was made by the investigating Police Officer to the effect that the" case was a false one as it related to a dispute about land, and it is to be noticed in particular here that there was an added statement to the effect that there was no case u/s 211. From that statement made by the Police Officer proceedings were taken by the Magistrate and an application was made to the Court and it was stated byone of the learned Judges that the Magistrate in taking cognizance of the offence u/s 211 had acted under Sub-clause (c) of Section 190, and in the course of the judgment the learned Judges state.

It is clear that the Magistrate in this case had such material before him as upon a consideration of which he might ''suspect'' the offence had been committed.

It is true that Mr. Yunus does not state that that case is a definite authority for the proposition that this was taking cognizance under Sub-clause (c), but he does rely upon it as a strong expression of opinion that that was a case in which the facts were not, as I have already stated, dissimilar to those in the present case. But this is to be noticed, and it seems to me to show a great divergence (between the two cases, that in the case in Queen-Empress v. Sham Lall 14 C. 707 (F.B.) there was a clear statement by the Police that there was no case u/s 211. It is difficult, therefore, to see what the Court could have said other than that the Magistrate was acting on suspicion when the Magistrate had already before him a statement that no offence u/s 211 was disclosed. He could only suspect that inspite of the Police report the facts ultimately investigated might show that there was a case u/s 211.

In my judgment, therefore, the first part of the argument of Mr. Yunus cannot be sustained. I can only hold that if the Magistrate took cognizance of this case on the endorsement that was made on the Police report, he took cognizance under Sub-clause (6) of Sub-section (1) of Section 190 and that sub-clause was, in my judgment as I have already stated, applicable to this case. The further argument is that supposing from one point of view the Magistrate first took cognizance when the Police lodged a complaint, then it is argued that it was necessary for the Magistrate to examine the complainant and that not having been done, again the conviction cannot stand. This argument is based on the provisions of the first part of Section 200 together with the proviso contained in Sub-clause (a). The Magistrate under Sub-clause (a), is excused from examining the complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties.

As I understand Mr. Yunus''s argument it is this. This complaint by the Police Officer was not by a public servant acting or purporting to act in the discharge of his official duties. It is said that this was a non-cognizable offence. It was not the duty of the Police Officer to investigate it or to file a complaint with regard to it, and, therefore, it cannot be said to be investigated by a public servant acting in the discharge of his official duties. Undoubtedly of course the Police Officer was a public servant and that is admitted. Reference is made to the Police Act and to the earlier sections of the Criminal Procedure Code. Sections 23, 24 and 25 of Police Act (V of 1881) are referred to in this connection, but they deal only with the general duties of a Police Officer, Section 24 in particular, however, stating that "it shall be lawful for any Police Officer to lay any information before a Magistrate, and to apply for a summons, warrant, search warrant, or such other legal process as may by law issue against any person committing an offence." But there is nothing either in the Police Act to which I have made reference or in the Criminal Procedure Code which would in any way prevent a Police Officer from lodging a complaint with regard to a non-cognizable offence.

A similar point as the present was argued in the case of Abdul Ali v. Emperor 59 Ind. Cas. 41 : 1 P.L.T. 446 : 22 Cri.L.J. 9 in which it was stated in the course of the judgment by Sir Jwala Prasad that u/s 154 of the Criminal Procedure Code there is a duty imposed upon the Police to investigate into an information relating to a cognizable offence but there is no such duty as regards a non-cognizable offence unless he is required to do so by the Magistrate, In the course of the argument in that case, as is clear from the judgment, there was a suggestion which would, if the argument had been acceded to some extent at any rate, in some way limit the powers of the Police Officer with regard to non cognizable offences. But it seems to me that this case doss not depend upon that question. I have mentioned already that in the case quoted above the Police had not the duty cast upon them to investigate a case in respect to a non-cognizable offence unless directed by the Magistrate. Here of course there was a clear direction, but assuming for the moment that there had not been, what was the Police doing? The question is whether they were acting in their private capacity, or whether they were acting as Police Officers? It is abundantly clear at any rate that they were purporting to act as Police Officers in the course of their duty even assuming that the duty which the Police Officer in this case had taken upon himself to perform was not a duty which he was bound to perform. If that be the case, the provision contain ed in Sub-clause (a) of Section 200 is complied with as that sub-clause quite clearly states that the Magistrate is excused from examining the complainant assuming that the public servant has purported to act in the discharge of his official duties. It seems; to me impossible for the Court to say in this case that the Police Officer was not even acting in the course of his official duties much less to say that he was not purporting to act in the course of those duties Coming to that conclusion, it seems to me that the contention, although so ably put before this Court by the learned Advocate for the applicant, cannot prevail, and, therefore, the Rule must necessarily be discharged.