Rabindra Nath Das vs The State of West Bengal

Debabrata Mookerjee, J.—This is a Rule calling upon the Chief Presidency Magistrate, Calcutta, to show cause why a certain proceeding pending against the Petitioner before the Additional Chief Presidency Magistrate, Calcutta, should not be quashed.

The facts briefly stated are that on June 14 1954, an information was lodged by the Petitioner Rabindra Nath Das with the Jorasanko Police regarding the theft of a bicycle which had occurred on the day previous. In that information no one was mentioned as having been responsible for the theft. On June 22, 1954, the bicycle in question was recovered from one Batuk Roy and it transpired that it had been pledged with him for a sum of Rs. 20. On August 2, 1954, one Panchu Gopal Das was arrested for complicity in the offence charged on the identification of Batuk Roy. The owner of the bicycle is one Netaipada Das who identified it at a parade held in the court of a Presidency Magistrate. On September 13, 1954, a chalan was submitted u/s 414 of the Indian Penal Code as the result of investigation by the police against Panchu Gopal Das. On the date the chalan was submitted, a petition was filed by Panchu Gopal Das in the court of the Additional Chief Presidency Magistrate in which various allegations were made against the investigating officer and the present Petitioner. On receipt of this petition the learned Additional Chief Presidency Magistrate desisted from taking cognizance of the offence mentioned in the chalan and directed an inquiry to be held by Mr. Sarbadhikary, another Presidency Magistrate into the petition submitted by Panchu Gopal Das. Before the last named Magistrate as many as six witnesses were examined by Panchu Gopal Das, and in these proceedings the Petitioner was not represented. The inquiring Magistrate made a report declaring that the Petitioner''s information to the police was false and recommended to the Additional Chief Presidency Magistrate discharge of Panchu Gopal Das. The inquiring Magistrate further advised that there should be inquiry into the offence u/s 211/109 of the Indian Penal Code which appeared to have been committed by the Petitioner and one Ganesh Chandra Gossain.

On September 27, 1954, the learned Additional Chief Presidency Magistrate read the report submitted by the inquiring Magistrate and refused to accept the chalan submitted by the investigating officer. He further ordered the discharge of Panchu Gopal Das on the ground of want of evidence against him. By the same order the learned Magistrate directed issue of notices on the Petitioner and the aforesaid Ganesh Gossain calling upon them to show cause why a complaint should not be made against them for committing an offence u/s 211/109 of the Indian Penal Code. On November 1, 1954, the Petitioner showed cause in obedience to that order and the case was fixed for hearing on November 11, 1954, on which date the learned Magistrate after having heard the public prosecutor in the matter whom he had directed by an earlier order to appear in the case, fixed December 1, 1954, for the hearing of the matter. Thereafter the Petitioner applied to this Court and obtained the present Rule.

It is contended on behalf of the Petitioner that the procedure followed by the learned Additional Chief Presidency Magistrate is unknown to law, and consequently, the order made by him which had the effect of putting the Petitioner and another upon trial u/s 211/109 of the Indian Penal Code is wholly unsustainable. It is said the cause shown by the Petitioner against his prosecution was over-ruled and the case against him was fixed for hearing straight away.

There cannot be any doubt that the Additional Chief Presidency Magistrate took action against the Petitioner and the aforesaid Ganesh Gossain upon the petition which was filed by Panchu Gopal Das on September 13, 1954, the date on which the chalan against the latter had been submitted by the police. Directly this petition was received, the learned Magistrate stayed his hands as respects the taking of cognizance of the offence mentioned in the chalan and thought it expedient to direct a "judicial inquiry" into the petition submitted by Panchu Gopal Das. These appear to be the only facts upon which the Additional Chief Presidency Magistrate proceeded to direct the inquiry.

It is indeed extremely difficult to understand what exactly was the procedure which the learned Additional Chief Presidency Magistrate followed or purported to follow in the present case. When the chalan was submitted it was perfectly open to the Magistrate to refuse to take cognizance of the offence mentioned in the chalan. A Magistrate cannot certainly be held bound by a police report. But then when he took into consideration simultaneously the petition filed by Panchu Gopal Das and took action upon it by directing a judicial inquiry to be held by another Presidency Magistrate, it must be presumed that the Additional Chief Presidency Magistrate treated Panchu Gopal Das''s petition'' as a petition of complaint. The Magistrate was quite entitled to do that; but if he so chose to treat it as a complaint he was bound by the procedure indicated in Section 200 of the Code which obliged him to examine the complaint. The learned Magistrate did nothing of the kind. Straightway he directed a judicial inquiry to be held into Panchu Gopal Das''s complaint.

The judicial inquiry thus directed does not appear to have been limited strictly to the complaint which was made by Panchu Gopal Das; it extended to proving facts and circumstances suggestive of the falsity of the information which the Petitioner had lodged with the Jorasanko Police on June 14, 1954. Whatever the nature of the inquiry might have been, the inquiring Magistrate, as has been observed already, recommended another inquiry to be made in the offence u/s 211/109 of the Indian Penal Code alleged to have been committed by the present Petitioner. The learned Additional Chief Presidency Magistrate on receipt of the report of the inquiring Magistrate declined to take cognizance of the chalan and called upon the Petitioner and another to show cause why they should not be proceeded against for having committed an offence u/s 211/109 of the Indian Penal Code.

If the petition filed by Panchu Gopal Das on September 13, 1954, is to be treated as a complaint, as it must be so treated, then the Additional Chief Presidency Magistrate clearly contravened the provisions of Section 200 of the Code of Criminal Procedure. Alternatively, if the petition of Panchu Gopal Das is to be ignored, the learned Additional Chief Presidency Magistrate by his order dated September 27, 1954, called upon the Petitioner to show cause why he should not be prosecuted for having committed an offence u/s 211/109 of the Indian Penal Code. He was, therefore, in the latter case obliged to follow the provisions of Section 195(1)(b) of the Code of Criminal Procedure which provides that no court shall take cognizance of an offence punishable u/s 211 when such an offence is alleged to have been committed in or in relation to any proceeding in court except on the complaint in writing of such court or of some other court to which such court is subordinate. Section 476 of the Code prescribes the procedure to be followed in cases covered by Section 195(1)(6) and (c) of the Code. It is provided by Section 476 that when a criminal court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Section 195(1)(b) or (c) which appears to have been committed in or in relation to a proceeding in that court, such court, may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint in writing signed by the presiding officer of the court and shall forward the same to a Magistrate of the First Class having jurisdiction. The Section further makes it clear that for the purpose of that section a Presidency Magistrate is to be deemed a Magistrate of the First Class.

If the learned Additional Chief Presidency Magistrate intended to proceed against the Petitioner and the aforesaid Ganesh Gossain as having been responsible for commission of an offence u/s 211/109 of the Indian Penal Code, it was his clear duty to follow the procedure prescribed u/s 476 of the Code; he should have preferred a complaint and forwarded it to another Magistrate.

The learned Additional Chief Presidency Magistrate appears to have completely ignored the provisions to which I have just referred. When the Petitioner showed cause he at first directed the matter to be put up on November 11, 1954, and asked the public prosecutor to take up the matter. The public prosecutor was heard at length in the matter. Presumably the Magistrate was not satisfied with the case shown, noted on the order sheet that the parties were ready and fixed December 13, 1954, for the hearing of the case.

There can be no doubt whatever that the learned Magistrate intended to proceed and did proceed with the case himself. This is, to say the least, a procedure which is clearly against the provisions of Section 195/476 of the Code of Criminal Procedure. It was his clear duty to forward a complaint to another Presidency Magistrate; but instead of that he fixed the case for hearing. The word "hearing" admits of no equivocation and the Petitioner''s definite case which remains uncontradicted is that the learned Magistrate proceeded to try and determine the issue of guilt or innocence of the Petitioner. This is clearly unwarranted and the procedure involved a complete disregard of the provisions of the Code.

If the petition of Panchu Gopal Das filed before the Additional Chief Presidency Magistrate on September 13, 1954, is to be treated as a petition of complaint, the Magistrate must be held to have failed to follow the provisions of the law by omitting to examine the complainant u/s 200 of the Code; and even if this petition is ignored-which indeed it is difficult to do-and the matter be taken to have originated somehow with the report submitted by the inquiring Magistrate, even then the Additional Chief Presidency Magistrate disobeyed the provisions of the law by making, so to say, an informal complaint to himself and then proceeding to try it out.

It is indeed to be regretted that the learned Additional Chief Presidency Magistrate should have evinced such complete disregard of the provisions of the law and evolved a procedure of his own.

The result, therefore, is that the proceedings pending against the Petitioner before the Additional Chief Presidency Magistrate must be quashed. The Rule is accordingly made absolute.