Mosafir Singh vs Emperor

Macpherson, J.—The petitioner has obtained the present Rule against his conviction and sentence of six months'' rigorous imprisonment under S. 182, Penal Code. The petitioner filed an application before the Sub-divisional Magistrate of Nawadah making certain allegations and asking for an order against the opposite party under S. 144, Criminal P.C. The Magistrate sent the petition to the police for report on receipt of which he wrote a long order concluding as follows:

I come accordingly to the finding that the petitioner''s information is false, and I direct that he give bail of Rs. 200 to answer a charge under S. 182, I.P.C., before the second officer on 16th January 1935.

The second officer proceeded to try the petitioner and convicted and sentenced him as already stated. The main defence and the main point in appeal was that the provisions of section 195 (1) (a). Criminal P.C., had not been complied with so that the Court could not take cognizance. That provision debars a Court from taking cognizance of any offence punishable under Ss. 172 to 188, Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. The Courts below held that as in this case the Sub-divisional Officer was himself the public servant concerned, he evidently took cognizance under S. 190 (1) (c), Criminal P.C., so that in their view there was no illegality. In revision it is urged by Mr. Rajkishore Prasad that in view of S. 195 (1)(a), cognizance could only be taken on the complaint in writing of the Sub-divisional Magistrate and that there is no such complaint and that cognizance by that Magistrate under S. 190 (c) upon his own knowledge or suspicion that an offence had been committed, would not be sufficient in, law. This contention is sound. Even admitting the difficulties of a Sub-divisional Magistrate in a Sub-division where no other Magistrate is empowered under S. 190 (2) to take cognizance on complaint, it would appear that in such a case a complaint such as is contemplated by S. 195 (1) (a) is possible since it can be made to the Court of the District Magistrate. In this case if the Sub-divisional Magistrate had preferred his complaint in writing to the District Magistrate, the latter could without difficulty have directed the trial to take place in the Court of the Sub-Deputy Magistrate (Second Officer) of Nawadah. The order of the Sub-divisional Magistrate was obviously not a complaint at all to the Sub-Deputy Magistrate since that officer, not being empowered u/s 190 (2), would be bound under S. 201 (1) to return the complaint for presentation to a Court having jurisdiction to take cognizance of it. The case was also not one to which S. 190 (1) (a) could be applicable in view of, the special provision in S. 195 (1) (a), that is to say, the only course open to the Sub-divisional Magistrate in the circumstances was to prefer his complaint to the District Magistrate of Gaya.

The objection to jurisdiction was taken forthwith and was persisted in appeal, so that the explanation to section 537, Criminal P.C., comes into full operation. Apart from that there is force in the contention that the omission through Act 13 of 1923, of Cl. (b) makes compliance with S. 195 (1) (a) a necessary condition to jurisdiction. Accordingly the conviction and sentence must be set aside and the petitioner be released from bail. It is, of course, open to the Sub-divisional Magistrate or the District Magistrate of Gaya to take action under S. 195 (1) (a) on a complaint in writing properly made against the petitioner, should it be judged expedient so to do.