Mt. Ido vs Gainda Singh, Sobha Singh

Chopra, J.—The facts that have given rise to this petition for revision are as follows: Gian Singh respondent, lodged a report in police station Amloh alleging that Mt. Ido, the petitioner, had committed criminal trespass by breaking open the lock of the house that was in his possession. This report was made on 7-1-1950. Sodhi Hukam Singh, Assistant Sub-Inspector, Amloh went to the village on the following day and after recording the statements of the witnesses produced by the complainant, reported for the cancellation of the case and also for proceedings under S. 182 to be taken against the complainant. The latter approached the Assistant Superintendent of Police and complained that the Investigating Officer had not taken all of the evidence which included documents proving his possession of the house. The Assistant Superintendent of Police deputed the Sub-Inspector Amloh to make further investigation in the case. The Sub-Inspector after due investigation again made a report for cancellation of the case, but he did not recommend the complainant to be proceeded against under S. 182, I.P.C. The District Magistrate, Bassi, before whom this report was placed, sent it to Magistrate 1st Class, Amloh for necessary orders. The Magistrate on receiving the papers sent for the complainant who appeared before him on 1-7-1950. A brief statement of the complainant was recorded that day wherein he only stated that he wanted to lead further evidence in the case. It was then adjourned to 17-7-1950. Another statement of the complainant was recorded on this later date in which he merely deposed that he was producing certain documents evidencing his title and possession of the disputed house. The Magistrate thereupon passed the following order:

The file perused and the document filed by the complainant perused, which clearly show that the possession of the house in dispute was obtained by the complainant. The cancellation report produced by the police is not accepted, but there is prima facie case under S. 448, I.P.C., against the accused, to be summoned on deposit of Talwana, the case to be registered. The file to come up on 31-7-1950.

The case then took its regular course and the evidence of the parties was recorded. The trial Magistrate in the end found the charge to be proved against Mt. Ido, one of the accused. He convicted her under S. 448, I.P.C., and awarded a sentence of Rs. 50/- fine. In default of payment of fine she was to undergo simple imprisonment for a period of one month. The possession was directed to be delivered to the complainant under S. 522, Criminal P.C. The convict presented a petition for revision to the Sessions Judge, Kapurthala, which was dismissed. She has now come in revision to this Court.

The main point urged by S. Hanwantbir Singh, the learned counsel for the petitioner, is that there was no legal complaint before the Magistrate, on which he could take cognizance of the case. The police had moved for its cancellation and the complainant had not presented any complaint before him. The only order that he could make with respect to the report of the police was to accept it or refuse to accept it. The argument is that if the Magistrate did not agree with the report, he could not proceed on with the case on that report without any separate complaint having been presented before him by the complainant. Reference has been made to S. 190, Criminal P.C., which enumerates the ways in which a Magistrate can take cognizance of an offence, and reliance has been placed on (Chigurupati) Venkata Subba Rao and Another Vs. Naraharisetty Anjanayulu, I see much of force in the objections taken by the learned counsel. There are only three ways in which a Magistrate can take cognizance of an offence and they are described in S. 190, Criminal P.C., (a) upon receiving a complaint of facts which constitute such offence; (b) upon report in writing of such facts made by any police officer; and (c) upon information received from any person other than the police officer, or upon his own knowledge or suspicion that such offence has been committed.

It is not disputed that (a) and (c) have no application. The words ''such facts'' used in Cl. (b) have to be read with Cl. (a) and they mean ''facts which constitute such offence.'' A report by the police for cancellation of the case cannot be said to be a report of facts which constitute an offence. The report, on the other hand, was that no offence had been made out. All that the Magistrate had to do, on receiving such a report, was to make an order that the case be cancelled, or to make a note that he did accept the recommendation of the police. The matter would have rested there and the party aggrieved could have proceeded further in, accordance with law. If the complainant wanted to proceed on with the case and get a judicial decision from the Court, he could present a regular complaint under S. 190 and the Magistrate would then have taken cognizance of it. In the Madras authority to which reference has already been made, the police after investigation sent a referred charge-sheet to the Magistrate who ordered the police to put in a challan in the case. On the matter going to the High Court it was held that the order of the Sub-Divisional Magistrate did not amount to taking cognizance of the case. In ''Sarba Mahton v. Emperor'', 20 Ind Cas 211 (Cal), an information lodged with the police was reported to be false. The Sub-Divisional Magistrate before whom this report was placed, ordered the complainant to prove his case. After recording his statement and the evidence produced by him, the Magistrate directed that proceedings under S. 476, Criminal P.C., be taken against him. On a revision to the High Court It was held that the order of the Magistrate calling upon the complainant to produce evidence and prove his case did not come within any of the provisions of the Criminal P.C. A Full Bench of the Lahore High Court in AIR 1948 184 (Lahore) held that the Magistrate making an order on a report of the police for cancellation of the case acted merely as an administrative or ministerial officer and not as a Court.

S. Kartar Singh, the learned Counsel for the respondent, has, on the other hand, argued that the police after investigation of a cognizable case has to submit a report to the Magistrate giving the result of the investigation and the Magistrate, even in cases where the report is for cancellation of the case, can make such order as he thinks fit. It is argued that if the Magistrate did not agree with the report of the police, he could take cognizance of the case on that report. Reference has been made to Cl. (3) of S. 173, Criminal P.C. The words ''otherwise as he thinks fit'' are interpreted as to mean that the Magistrate when he does not agree to discharge the accused of the bond taken from him could make any other order he thought fit. The learned Counsel in support of his argument has cited a Division Bench decision of the Lahore High Court in ''Mohd. Nawaz v. The Crown'', 48 Cri LJ 774 and reference to the following remarks ''on page 777'' has particularly been made.

It will be seen that the Magistrate has been given power to make such order as he thinks fit in the case. He may direct that the bond furnished by the accused be discharged and it is obvious that such an order would be appreciated in a case in which the Magistrate agrees with the opinion of the police officer and considers that further proceedings are not necessary. The Magistrate is, however, not bound by the Police Officer''s opinion, and relying on the material furnished in the report the Magistrate may, if he chooses, take cognizance of a case against the person whom the police officer believed to be innocent, or against other persons, who may appear to the Magistrate on the basis of the report to be guilty of an offence.

The facts of this case, however, were quite different. A regular challan under S. 302, I.P.C., against two persons, Mohammad Iqbal and Mahbub, was presented by the police before a Magistrate who took cognizance of it. The Police then applied for further investigation into the case, which was allowed. They then presented a fresh challan in respect of the same offence against different set of persons and reported that Mohammad Iqbal and Mahbub who were subsequently found to be innocent, be discharged. The Magistrate acting under S. 173 (3), Criminal P.C., discharged the two accused and proceeded against the persons reported against in the second challan. The latter accused moved the Sessions Judge in revision, who referred the case to the High Court under S. 438, Criminal P.C. The point stressed was that since the Magistrate had already taken cognizance of the case, his order discharging Mohammad Iqbal and Mahbub was without jurisdiction. It was held that where a Magistrate has already taken cognizance of a case against an accused on a police report to the effect that there was sufficient evidence against him showing that he had committed the offence charged, the case is not one where police had reported insufficiency of evidence or lack of suspicion and the Magistrate has no power to discharge the accused person under S. 173(3). This sub-section was found to exclusively relate to the case provided for in S. 169. The order of the Magistrate discharging the accused was, therefore, set aside. The observations reproduced above were made with respect to a case in which the police had taken action under S. 169, Criminal P.C. and were obiter dicta. I do not think the learned Judges meant to lay it down that in all cases where the police had made a report for cancellation of a case, the Magistrate could refuse to accept the report and also take cognizance of the offence on that report. Reliance while making the observations was placed on two cases reported as ''Emperor v. Dalip Singh'', 5 Cri LJ 275 (All) and ''Sarwa v. Emperor'', 14 Cri LJ 290 (Nag).

In ''Emperor v. Dalip Singh'', 5 Cri LJ 275 (All) a complaint was made to the police against Ram Sahai charging him with theft of the timber of two trees. The police enquired into the case. One Dalip Singh alleged that the accused had cut the trees with his permission and asserted that he had a right to dispose of them. The Investigating Police Officer expressed his opinion that the dispute was one of a civil nature and sent up a charge sheet with the recommendation that the case should be expunged from the list of crimes. The Magistrate before whom the report was placed, examined certain evidence and ordered that a charge of theft should be instituted against Dalip Singh and that Ram Sahai should be summoned as a witness. The High Court on revision set aside this order on the ground that the case was prima facie one of a civil nature. The question whether the Magistrate was competent to make the order he did was not finally considered or decided. In ''Sarwa v. Emperor'', 14 Cri LJ 290 (Nag) a challan of Lachhman Singh was put in by the police before a Magistrate who considered that one Sarba was also to be joined as an accused. Process accordingly was issued to Sarba and he was tried along with Lachhman Singh. Both of them were eventually convicted. Objection was taken to the legality of the cognizance taken by the Magistrate against Sarba. It was held that the Magistrate had taken cognizance of Sarba''s offence under Cl. (b) and not under Cl. (c) of Sub-s. (1), S. 190, Criminal P.C. It is thus clear that none of these authorities has got any bearing upon the point in dispute before me.

The point, I think, is fully covered by a decision of the Division Bench of this Court in ''Harbir Singh v. The State'', Cri Misc. No. 12 of 1950 decided on 9-4-1951. The facts of this case were these: In a case registered under S. 409, I.P.C., the police after investigation, came to the conclusion that no offence had been made out against the accused and recommended that the case be cancelled. The Magistrate before whom the report was placed, ordered the complainant to be summoned. The latter then requested the Court to grant him time to adduce evidence in support of his allegations. The Magistrate accepted the request and adjourned the case for the purpose. The statement of the complainant and some other evidence were thereafter recorded. The matter having been taken to the High Court it was held that the order of the Magistrate was without jurisdiction and it was, consequently, set aside. The learned Chief Justice, who delivered the judgment in the case after referring to various authorities cited before him, observed as follows:

Section 173 deals with the final report of the police and it can either amount to a charge or it may contain the recommendation that no offence having been made out, the case should be cancelled. If the report is that an offence has been committed the Magistrate can take cognisance of it under S. 190 (1) (b). If on the other hand, the report is that the case is false, Cl. (1) (b) of S. 190 does not apply and no cognizance of the offence can be taken by the Magistrate.

For all these reasons, I am of the opinion that the Magistrate acted against jurisdiction in taking cognizance of the case on the referred report of the police. There being no regular complaint before him, he could not proceed on with the case. All his further proceedings are vitiated and must, therefore, be quashed. In view of this finding of mine the conviction recorded by the Magistrate must be set aside. The petition is, therefore, accepted and the order of the Magistrate dated 19-1-1951 set aside. The fine if paid, shall be refunded.