Mst. Mako Devi and Others vs State of Bihar and Others

R.P. Sinha, J.—This is an application u/s 561-A of the Code of Criminal Procedure, 1898 by the petitioners for quashing the order taking cognizance against them u/s 188 of the Indian Penal Code Mr. K.N. Jha, Sub-divisional Magistrate, Godda and transferred the case to Shri K.P. Srivastava, Judicial Magistrate, 1st Class, Godda for disposal.

On a petition filed by inc. opposite party No. 2, the police submitted a report to the Sub-divisional Magistrate Godda on 18th May, 1973 and on the basis of that report a proceeding u/s 144 of the Code of Criminal Procedure was started en 21st May, 1973 and both parties were restrained from going upon the land in dispute. Subsequently, on 16th July, 1973 an order was passed by which the rule was made absolute against the opposite party and was vacated against the petitioners. During the pendency of the proceeding u/s 144 of the Code of Criminal Procedure, a petition was filed by the opposite party on 6th June, 1973 for starting a proceeding u/s 188, Indian Penal Code, against the petitioners on the allegation that they had started construction of Chhawani of Dhaba and the matter was referred to the police for enquiry and report. The police accordingly, submitted a report on 12th June, 1973 for action u/s 188, Indian Penal Code. The learned Sub-divisional Magistrate thereupon filed a written complaint as required under, the provision of Section 195(1) of the Code of Criminal Procedure in the Court of the Sub-divisional Magistrate at Godda for taking cognizance against the petitioners u/s 188,. Indian Penal Code and the learned Sub-divisional Magistrate, by his impugned order dated 21st July, 1973 took cognizance of the offence u/s 188, Indian Penal Code, against the petitioners and transferred the ease to the file of the Judicial Magistrate for disposal.

Although in the application tiled before this Court, at paragraph 10, it has been slated that no complaint was filed before taking cognizance u/s 188, Indian Penal Code, as required u/s 195 of the Code of Criminal Procedure, but it was found from the record of the case that it was not a fact and that actually a written complaint as required u/s 195(1) of the Code of Criminal Procedure was filed and on the basis of that written complaint cognizance was taken.

The other point urged on behalf of the petitioners was that since the Sub-divisional Magistrate had filed the petition of complaint in the court of the Sub-divisional Magistrate at Godda and he himself had taken cognizance against the petitioners, his order should be quashed. Ordinarily, no Magistrate should take cognizance of an offence in which he himself is the complainant and personally interested in the case but, in the instant case, I think the learned Sub-divisional Magistrate, Godda and to take cognizance was placed, had no option but lo take recourse to tiling a complaint himself in the court of the Sub-divisional Magistrate, Godda and to take cognizance as well. From the impugned order it appears that the learned Sub-divisional Magistrate, after taking cognizance has transferred the case to the Court of a Judicial Magistrate, 1st Class, for trial It cannot, therefore, be said that the learned Sub-divisional Magistrate has kept the case for trial in his Court in which he had taken cognizance himself on his own complaint.

It appears that both parties after the start of the proceeding u/s 144 of the Code of Criminal Procedure, were restrained from going upon the land in dispute under the orders of the Sub-divisional Magistrate who must have started the proceeding in this case, although these facts are not very clearly stated in the petition. On the allegation that the order of the Magistrate restraining the parties from going upon the land was violated by the petitioners, the matter, after enquiry by the police, was fursued. Section 195(1)(a) of the Code of Criminal Procedure lays down that "No Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate." Certainly, the over alleged to have been violated was the order passed by the Sub-divisional Magistrate and naturally he was the person competent to file a complaint as he was the public servant concerned, or the complaint could have been filed by some public servant to whom he was subordinate. This was a case of Godda Sub-division of the District of Santhal Parganas where the Sub-divisional Magistrate was not subordinate to any other Magistrate, rather the other Magistrate in the sub-division were Subordinate to him. So he was the only person competent to file the written complaint and the court of the Sub-divisional Magistrate being the only court where he could file the complaint, the same was filed there and he had to take cognizance as well, but after having taken cognizance, he had transferred the case to the court of a Judicial Magistrate for disposal.

Learned Counsel for the petitioners has referred to the decision in the case of Lakhi Narayan Ghose v. Emperor ILR XXXVII Cal. 221, in support of his contention jut the following observations made by Carnduff, J. is very relevant for the purposes o[ the present case:

But I am not prepared to accept, without question, the ruling in Thakur Pershad Singh and Others Vs. The Emperor in so far as it lays down that a Magistrate is not competent to act u/s 190(1)(c) of the Code of Criminal Procedure on any information which has been transmitted to him in another public capacity. This clearly goes beyond the provisions of the Code, itself, and I am (sic) to think that the safeguards supplied by those provisions are sufficient, and that there is no adequate reason, based on general principles, or extending or amplifying them. If (sic) Magistrate takes cognizance, under the clause referred to, on information received from any person other than a police officer, or upon his own knowledge or suspicion, then he is bound by Section 191 to give the accused an early opportunity for objecting and obtaining a trial at the hands of another Magistrate. And where a Magistrate is personally interested" in a case, he cannot, u/s 556, try it, or commit it for trial, without special permission. These provisions follow the (sic) rule that a Judge shall not be a (sic) in what may be called his own cause but they draw the line, advisedly as I imagine, at trial or commitment, and do not go to the length of impeding mere cognizance of crime. Nor would it, in the circumstances of this country, by advisable to go so far, for, although it is undoubtedly better that a Magistrate should not move at all where he is, or has been in any way himself concerned, it is not difficult to conceive cases in which there might be no one but such a Magistrate competent to act, and his incapacity to issue process might involve the escape scot-free of offenders. I should hesitate, therefore, to add to the Stitute law on the subject.

Another decision on which reliance has been placed on behalf of the petitioners is in the case of Mohammad Sharfuddin alias Shamsuddin v The State of Bihar 1974 B.B.C.J 507. In that case, Narain, J. has not subscribed to the view expressed by Carnduff, J. in the case of Lakhi Narayan Ghose ILR XXXVII Cal. 221. I, however, propose to adhere to the view taken by Carnduff, J. in the aforesaid case and, in my opinion, taking of cognizance in the present case by the Sub-divisional Magistrate is not hit by the provisions of Section 556 of the Code of Criminal Procedure which deals with trial or commitment for trial and not with taking cognizance which is quite distinct act from holding a trial or committing an accused for trial. Besides that, in the present case, the learned Magistrate, after taking cognizance had already transferred the case to a Judicial Magistrate for disposal. Hence I do not propose to interfere with the impugned order of the learned Magistrate taking cognizance.

In the result, the application fails and is, accordingly, dismissed.