Udit Narayan Patwari and Others vs Emperor

Mohamad Noor, J.—The petitioners six in number were convicted by a Second Class Magistrate of Bhagalpur under Sections 427 and 143, I.P.C. Under the former section, petitioner 1, Udit, was sentenced to a fine of Rs. 100 and the remaining five petitioners to a fine of Rs. 50. No separate sentence was passed u/s 143, I.P.C. Out of the fine, if realized, Rs 50 was ordered to be paid to the complainant. The case had a chequered career, the alleged occurrence having taken place on 20th February 1936. It appears that two counter-cases were instituted, one by the complainant of this case against the present petitioners and the other against the complainant. The Sub-divisional Officer ordered the counter-case to proceed first and ordered an inquiry into this case. The counter-case against the complainant of this case was dismissed and then the inquiry of this case was taken up by the Sub-divisional Officer.

At first the complaint in the present case was referred to the police and on receipt of the police report the learned Sub-divisional Magistrate, after considering it and various aspects of the case, dismissed it on 3rd November 1936. The learned Sessions Judge of Bhagalpur was moved by the complainant and he directed a further inquiry into the complaint. On receipt of this order the Sub-divisional Magistrate recorded the following order on 10th March 1937:

Sessions Judge has ordered a further enquiry. Let complainant prove his case before Mr. Ozair who will fix a convenient date for his inquiry and report by 80th March 1937.

Mr. Ozair, a Magistrate of the First Class, misunderstanding his position in respect of the case ordered, on 31st March 1937, summons to be issued on the present petitioners u/s 427, I.P.C. and proceeded to try the case. He examined some witnesses and on 29th June 1937 dis. charged the accused u/s 253(2), Criminal P.C., and recommended to the Sub-divisional Officer for a proceeding u/s 145 of the Code. When the matter was put up before the Sub-divisional Magistrate, he on 2nd July 1937, holding that the discharge of the accused by Mr. Ozair was entirely without jurisdiction, ignored it and ordered summons to be issued against the present petitioners, and after their appearance made over the case to the learned Magistrate who has convicted them on 2nd September 1937. Their appeal has been dismissed by a learned Magistrate of the First Class exercising appellate powers.

The first point urged in this case is that the second trial by the learned Magistrate who has convicted the petitioner was entirely illegal. It is Contended that as the order of discharge passed by Mr. Ozair was not set aside by a competent authority the petitioner could not have been retried without a fresh complaint for the same offence. This objection was raised before the trying Magistrate as well as before the Appellate Court. They overruled it on the simple ground that the trial before Mr. Ozair was without jurisdiction. I agree with this view. On the order of the Sessions Judge for further inquiry the matter, came before the Sub-divisional Magistrate who was in charge of the complaints of the sadar sub-division. He sent the case to Mr. Ozair for a limited purpose of inquiry and report. He definitely ordered the report to be submitted to him by 30th March 1937. The case remained with him. Mr. Ozair had obviously no power to summon the accused and proceed with the trial. It cannot but be conceded that Mr. Ozair went beyond the authority given to him I by the Sub-divisional Magistrate. The whole case was not made over to him.

Now the proceeding before Mr. Ozair can be allowed to stand only if we can apply Section 529, Criminal P.C. That section among others provides that if a Magistrate not empowered to take cognizance of a case on a complaint or on a police report takes cognizance of it in good faith, his proceeding will not be set aside merely on that ground.

In this case it is obvious that Mr. Ozair proceeded as if he himself had taken cognizance of the case, or as if the whole case was made over to him; and his order of summoning the accused, trying them and discharging them can only stand if one can hold that he in good faith believed that he was empowered to do so. But nothing is said to have been done in good faith which is not done with due care and caution.

In this particular case the order of the Sub-divisional Magistrate was as explicit as possible. Had he stopped after ordering Mr. Ozair to hold an inquiry, it could have been argued that Mr. Ozair believed that as the case was sent to him after an order for further inquiry by the Sessions Judge, he was required to deal with the case as he liked, but he ignored the subsequent words, that is "and report by 30th March 1937"; and if by mistake he overlooked it, he cannot be said to have acted with care and caution.

Mr. B.C. De for the petitioners relying, upon the decision in Hema Singh and Another Vs. Emperor, contended that an order for further inquiry amounts in some cases to an order for putting the accused upon their trial, and as the case was sent to him after an order of further inquiry by the Sessions Judge Mr. Ozair believed in good faith that he could proceed to try the accused. This contention cannot be accepted. The order by a superior Court to an inferior Court to hold further inquiry into a complaint which has been dismissed u/s 203, Criminal P.C. has acquired what may be called a technical meaning. It simply means re-consideration. What step is to be taken thereafter will depend upon the circumstances of the case. Supposing a magistrate dismisses a complaint immediately after the initial examination of the complainant and the superior Court orders further inquiry, the Magistrate may in that case, if he likes, before summoning the accused, hold an inquiry u/s 202 Criminal P.C. But in a case in which a complaint has been dismissed after a complete inquiry, it is obvious that the case is one in which the order of the superior Court for further inquiry can only be complied with by putting the accused upon their trial. In this case the complaint was dismissed after perusing the police report and some papers. Witnesses were not examined. No inquiry u/s 202, Criminal P.C. was held.

Therefore, when the case came back, it was within the competence of the Sub-divisional Magistrate to order an inquiry u/s 202, Criminal P.C. We are, however, not so much concerned with the propriety of the order of the Sub-divisional Magistrate for an inquiry by Mr. Ozair. We are faced with the fact that he did order an inquiry and definitely asked Mr. Ozair to submit the report by 30th March 1937. If on the face of that order Mr. Ozair proceeded to summon the accus. ed and hold a trial, his action was entirely without jurisdiction, and the learned Sub-divisional Magistrate was perfectly justified in ignoring it.

The next question is about the merits of the case. The complaint was dismissed practically on the ground that the dispute was of a civil nature. This seems to be the view of Mr. Ozair also when he discharged the petitioners. But the two Courts below have very elaborately gone into the matter and have come to the conclusion that the complainant established his possession over the land in question. The facts are that the parties are the co sharer landlords of the village. It is admitted that in spite of the fact that there is no formal partition, different blocks of land are in possession of different proprietors. Regarding the land in question on which the occurrence took place, it was, according to the prosecution, in possession of a proprietor named Hafiz who settled it with Kasim and who produced in it vegetables, brinjals and potatoes. It was alleged that the accused went with a mob and not only removed the vegetables but also destroyed them. The total damage done was of about Rs. 150. Therefore the Courts below had a very simple question to decide, i.e. whether or not the complainant has been able to prove his possession over this land. The two Courts have come to a unanimous conclusion that he did so and that the evidence of the prosecution has not been rebutted.

Much stress has been laid before us as it was laid before the Courts below on an order u/s 144, Criminal P.C., against the complainant. It appears that an application was filed by the accused on 19th November 1935, and a police report in connexion with it was submitted on 22nd December 1935. An order u/s 144 was passed against the complainant of the case on 23rd December 1935. The occurrence, as I have said, took place on 20th February 1936. It was therefore contended that if the accused went on the land within two months of the order u/s 144, they could not be held to be guilty.

It has been pointed out by the Court below that the order u/s 144 referred to another piece of land, though that land was also covered by the kabuliat under which Kasim took settlement from Hafiz. That ought to settle the matter apart from the legal position that an order u/s 144 does not establish possession. The Courts have believed the occurrence to be true. The manner in which the accused went on the land, destroyed the vegetables and removed them in a haphazard manner cannot be consistent with the work of a man who is in peaceful possession of a land.

I see no merit in this application and would reject it.

Yarma, J.

I agree. The point of law urged by Mr. B.C. De can be worded as follows: Mr. Ozair, when he summoned the accused, took seisin of the whole case and his order of discharge should stand till it is set aside by a competent authority. The whole question will turn upon the interpretation of the order massed by the Sub-divisional Officer who sent the case to Mr. Ozair. For the sake of precision I would quote the order which was passed by the Sub-divisional Officer:

Sessions Judge has ordered a further enquiry. Let complainant prove his case before Mr. Ozair who will fix a convenient date for his enquiry and report by 30th March 1937.

This order was passed on 10th March 1937. When the learned Sub-divisional Magistrate sent this case to Mr. Ozair, can it be said that he gave up seisin of the case entirely, or having taken seisin of the case he wanted some fresh materials upon which to pass subsequent orders and for those materials only "he sent the case to Mr. Ozair ? The expression "further inquiry" has by the interpretation given to it by the various High Courts, come to have a technical meaning. "Further inquiry" simply means a reconsideration of the matter.

In some cases reconsideration might require summoning of more witnesses, looking into more evidence; in other cases it may be, where the previous inquiry has been fuller to reconsider the order and pass an order accordingly. So, when the Sessions Judge passed the order that a "further inquiry" should be held, he wanted that the Sub-divisional Officer could himself try the case and dispose of it or transfer the case for disposal. But when the latter sent it to Mr. Ozair it was not for the purpose of further inquiry but it was for the purpose of inquiry and report very much on the lines of an inquiry that is expected from a Magistrate who is asked to hold an inquiry u/s 202. Now if that is the position, Mr. Ozair''s action in discharging the accused is very much like an order of discharge passed by a Magistrate who has been asked to hold an inquiry and who made a report u/s 202. That would be ultra vires.

In any case there is nothing in law which can justify this action of Mr. Ozair inasmuch as Section 529 which says that certain orders shall not be set aside if they are passed in good faith, cannot come into play in this case because the order, as has been pointed out by my learned brother, says distinctly that Mr. Ozair was asked to report and not to dispose of the case finally, which clearly means that he was not to dispose of the case finally. In these circumstances I think the learned Sub-divisional Magistrate, when he summoned the accused after reading the report of Mr. Ozair, acted within his rights and quite legally.

So far as the merits are concerned, the question was one of possession with regard to a field and the Courts below have come to a concurrent finding that possession was with the complainant. The only thing that had first appealed to me was the order u/s 144. In this case it appears to me that so long as the order u/s 144 was in force, the petitioners did not trouble about their possession; but once it occurred to them that it had spent itself, they took the earliest opportunity of committing the mischief before the opposite party could come and take possession of the field. I would therefore dismiss this application.