Nand Kishore Lal vs King-Emperor

Kulwant Sahay, J.—This is an application in revision against the order of the Deputy Magistrate, of Palamau purporting to be u/s 476 of the Criminal Procedure Code. The facts are shortly these:

The petitioner lodged a complaint before the police at Garhwa against one Thakur Singh and others alleging that they had robbed him of a sum of Rs. 1,200 on the 21st May, 1923. The police investigated into the case u/s 380, I.P.C., and reported it to be false. The report was u/s 173 of the Criminal Procedure Code. This report was made by the Sub-Inspector through the Inspector of police and the Inspector wrote in the report that line case was false and he recommended that the complainant should be asked to show cause against prosecution u/s 211, I.P.C. The learned Magistrate thereupon made the following order on the 6th June, 1923:

Sub-Inspector''s report seen. Call on the complainant to show cause against prosecution u/s 211, I P.C., on the 27th June, 1923.

The petitioner showed cause and the order of the 5th July, 1923, runs thus-

Petition filed showing cause. It is simply a repudiation of the police report. Complainant still adheres to his contention that the case is true. He will prove his allegations on 20th July, 1923, and take all necessary steps to produce any evidence he wishes to on that date.

It appears that the complainant, namely, the petitioner in this Court, examined certain witnesses and arguments ware heard on the 7th August, 1923, on which date the learned Deputy Magistrate held that his story was false and that he had failed to prove his case. He therefore expressed his opinion that as a, matter of principle the police should take necessary steps to prosecute the complainant u/s 211, I.P.C. The order-sheet of the 11th September runs thus:

Sub-Inspector submits a list of 10 P.W.s. Separate proceedings u/s 476, Cr.P.C., drawn up and placed in a separate file.

The proceeding, however, which is referred to in the order of the 11th September appears to have been drawn up on the 14th September, 1923, and runs thus:

Whereas on 22nd May, 1923, the above-mentioned Nand Kishora Lal of Sarhastal P.S. Untari made a charge of theft u/s 380, I.P.C., against Thakur Singh and others before the Sub Inspector of Garhwa which on investigation was found to be false, and whereas the said Nand Kishore Lal was given a further opportunity in an enquiry before this Court of proving his case and failed to do so by the evidence he adduced, and the offence (Section 211, I.P.C.) in respect of which it is now proposed to prosecute the complainant (Nand Kishore Lal) being one mentioned u/s 195, Clause (b), Cr.P.C. I do now therefore by this proceeding u/s 476, Cr.P.C., order the prosecution u/s 211, I.P.C., of the said Nand Kishore Lai and send the case for disposal with the list of P. Ws. filed by the police, to Maulvi Amir, Magistrate, first class.

Upon this proceeding the matter went to Mr. Amir, the Deputy Magistrate and he has taken cognizance of the case and has issued summons against the petitioner.

Now, the point taken by the learned vakil for the petitioner is that the order u/s 476, Cr.P.C., is bad in law inasmuch as there was no judicial proceeding pending before the Magistrate as contemplated by Section 476 and he relies upon the case of Tayab Ullah v. King-Emperor (1916) 43 Cal. 1152. The facts of that case are very similar to the facts of the present o>se and it is clear that, having regard to the proceeding before the learned Deputy Magistrate, there was no judicial proceeding as contemplated by Section 476 and the order passed u/s 476 is bad in law. An order u/s 476 to prosecute the petitioner u/s 211, I.P.C., could only be passed when such an offence was committed in or in relation to any proceeding in any Court. Here there was no proceeding in Court. It has been argued by the learned Assistants Government Advocate that as soon as the report of the police was received by the Magistrate a judicial proceeding was started before him and he took cognizance of the ease u/s 190, Clause (b) of the Cr.P.C. This argument does not appear to me to be a sound argument. The Magistrate did not take cognizance of the offence complained of by the petitioner. He upon receipt of the report of the police called upon the petitioner to show cause against his prosecution u/s 211, I.P.C. It has been argued by the learned Assistant Government Advocate that the position was the same as if the learned Deputy Magistrate had taken cognizance of the ease u/s 190 and had found the complaint to be false. To my mind this argument is not sound. In a similar case this Court held that an enquiry by a Magistrate before whom the complainant had been asked to prove his case in reference to an information lodged before the police is not a judicial proceeding u/s 476, Cr.P.C.--vide Triloki Mahto v. The King-Emperor (1921) 2 P.L.T. 220.

The result is that the order of the learned Deputy Magistrate u/s 476, Cr.P.C., is bad in law and must be set aside and as a result thereof the proceeding initiated by the learned Deputy Magistrate in accordance with the order u/s 476, Cr.P.C., mast also be quashed.