Ramdin Lal vs Emperor

Rowland, J.—The petitioner has been convicted u/s 193, I.P.C., in respect of an offence said to have been committed in respect of false evidence said to have been given in the course of a deposition which he gave before a Second Class Magistrate, Mr. S.M. Rab. After the proceedings in which that deposition had been given had terminated, the accused in that case, one Mithu, moved for an order u/s 476, Criminal P.C., for the institution of proceedings and for the presentation of a complaint against the petitioner. By this time the officer who tried the previous case had been transferred and Mr. Khan referred the matter to the Sub-Divisional Officer or the District Magistrate to determine u/s 559, Criminal P.C., if necessary, who was to be considered the successor of Mr. Rab. A petition was also presented by Mithu to the Additional District Magistrate who took up the matter on this petition and purporting to act u/s 476-A, Criminal P.C., drew up a proceeding and framed a complaint u/s 193, I.P.C., on which the petitioner was tried and convicted as above. The regularity of these proceedings is challenged on the ground that the Additional District Magistrate had no jurisdiction to take any proceeding u/s 476-A, or to institute the complaint in respect of the offence committed in the Court of Mr. Rab.

u/s 195(b) the essential preliminary to taking cognizance of an offence u/s 193, I.P.C., committed in a proceeding in any Court is that there should be the complaint in writing of such Court or some other Court to which such Court is subordinate. So the question raised is whether the Additional District Magistrate is some other Court to which the Court of the Second Class Magistrate is subordinate. Sub-section 3, Section 195 says that a Court shall be deemed to be subordinate for the purposes of this section to the Court to which appeals ordinarily lie from the sentences of the former Court. So we are to see to whom do appeals ordinarily lie from the Court of the Second Class Magistrate. The answer is in Section 407, Clause (1) of the Code, and the appeal is to the District Magistrate. There is power u/s 407(2) in the District Magistrate to direct that appeals may be heard by any Magistrate of the first class subordinate to to him and duly empowered and there is power to allow appeals to be presented to such a Subordinate Magistrate. This does not, however, alter the provision of Section 407, Clause (1), under which it is to the District Magistrate that the appeal lies in the first instance. An Additional District Magistrate by virtue of Section 10, Clause (3), is deemed to be subordinate to the District Magistrate for the purpose of this section. It appears to be the opinion of all the High Courts that where a Sub-Divisional Officer or other Magistrate of the first class is empowered u/s 407(2) to hear or to receive appeals, this will not make him the Court to which the appeals ordinarily lie for the purpose of these sections, and I cannot find any principle on which the case of an Additional District Magistrate can be distinguished from the case of another Magistrate of the first class, subordinate to the District Magistrate. Therefore the complaint was presented by a Court which was not the proper Court having jurisdiction to present it.

It has been suggested by Mr. K.K. Banarji appearing for the Assistant Government Advocate that what has occurred is an irregularity curable by Section 537, Criminal P.C. There are however, difficulties in the way of taking this view since the amendments made in the Code in 1923. Before that date u/s 537(b) the want of jurisdiction or any irregularity in any sanction required by Section 195, or any irregularity in proceedings taken u/s 476, was cured if in fact it had not occasioned a failure of justice. But this clause has been repealed and the intention seems to be to keep a want of complaint u/s 476 outside the scope of this section.

It has been suggested that Section 529(e) may assist the prosecution. Under this clause, if a Magistrate not empowered by law to take cognizance of an offence u/s 190, Sub-section (1), Clause (a) or Clause (b) erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. Section 190, Sub-section (1), Clause (a) refers to cases in which there is a complaint and cannot, I think, cover cases under which it has to be held that there is no complaint as required by law before the Court and the words "not be so empowered" refer to a want of power in the Magistrate rather than a defect in or absence of the complaint itself. On the other hand, Section 530 declares void the proceedings of a Magistrate who not being empowered by law in this behalf [Clause (p)] tries an offender. I hate doubt whether this clause is strictly applicable. It appears to be intended primarily for cases where a Magistrate with limited powers tries a case triable only by a Sessions Court or a Magistrate of a higher class. The case where there is a statutory bar to the taking of proceedings appears to me to stand on its own footing. It comes under the rule that where a statute says that a particular thing shall not be done unless a bar is removed, the statutory prohibition stands, and everything done in contravention of the prohibition is bad. Mr. Banarji cited the Privy Council decision in AIR 1927 44 (Privy Council) and contended that the distinction between an irregularity and an illegality which has been assumed by the majority of the Courts in India since the decision in Subramania Ayyar v. Emperor (1902) 25 Mad 61, is illusory and that in all such cases where an irregularity or even a disobedience of a mandatory provision has occurred, the question is whether it has resulted in a failure of justice, their Lordships having observed:

The bare fact of such an omission or irregularity as occurred in the case under appeal unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction, which, in their Lordships'' view may be supported by the curative provision of Sections 535 and 537.

In this Court, however, the matter does not appear to be res integra. More than once the absence of a complaint u/s 476 has been held to be fatal to the subsequent proceedings, and I think I should not go against those decisions. I may refer to Subhag Ahir v. Emperor AIR 1932 Pat 152 and Barhamdeo Singh v. Emperor AIR 1928 Pat 102. For these reasons the rule must be made absolute and the conviction and sentence set aside. Another point was taken that the charge framed was in contravention of Section 233, Criminal P.C., in that a single charge was framed in respect of two or three statements alleged to be false. The proper course, as has been repeatedly pointed out, is that each distinct offence should be the subject of a distinct charge. A failure to comply with the provisions of this section may or may not be fatal according to the circumstances of the case. As pointed out in Sachchidanand Prasad v. Emperor AIR 1933 Pat 488, the defect has been condoned in some cases where the accused could not be prejudiced, as for instance, when all the offences charged had been committed on the same day and on the same occasion though it would be otherwise if the offences had been committed at different times and places. In the present case that defect in the charge would not by itself have been fatal; but I wish to say that such defects should be carefully avoided by all Magistrates as far as possible. I am indebted to Mr. Avadhesh Nandan Sahai for the petitioner as well as to Mr. K.K. Banarji who appeared on behalf of the Assistant Government Advocate, for the care and completeness with which they have placed before me the law and the decisions bearing on it.