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Moba Maring and ors. Vs. Parhat Angba Maring and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMoba Maring and ors.
RespondentParhat Angba Maring and anr.
Prior history
T.N.R. Tirumalpad, J.C.
1. These are two petitions against the convictions and sentences of the respective petitioners under Section 428 I.P.C. The Magistrate convicted the respective petitioners and sentenced them to a fine of Rs. 60/-jointly in each of the cases. But in the appeals tiled by the respective petitioners, this irregularity was corrected and the convictions were confirmed, and separate tines were imposed on each of the petitioners.
2. The facts relating to the two revision petiti
Excerpt:
.....dated 27/-3-1961 in both the cases, that the advocates for the complainants as well as the accused were heard by the magistrate and that the charge under section 428 i. jogesh chandra, air1956cal76 .in the said case, the magistrate had failed to examine the complainant on oath and had sent it for police investigation and this was treated as under section 156(3) cr. in such a case, unless the petitioners are able to show that the irregularity committed by the magistrate in not examining the complainants on oath has seriously prejudiced their defence and has resulted in miscarriage of justice, it is not possible to hold that the convictions and sentences are bad in law. thus the failure to take a sworn statement even though it is a valuable safeguard provided by the legislature and..........and sentences of the respective petitioners under section 428 i.p.c. the magistrate convicted the respective petitioners and sentenced them to a fine of rs. 60/-jointly in each of the cases. but in the appeals tiled by the respective petitioners, this irregularity was corrected and the convictions were confirmed, and separate tines were imposed on each of the petitioners.2. the facts relating to the two revision petitions are more or less similar. the respective petitioners in each of the cases were alleged to have killed a pig each of the respective respondents at about 1-00 p.m. on 12-9-1960. the respective respondents filed separate complaints before the magistrate on 13-9-1960. the magistrate did not examine the respective complainants on oath in either of the complaints but sent.....
Judgment:

T.N.R. Tirumalpad, J.C.

1. These are two petitions against the convictions and sentences of the respective petitioners under Section 428 I.P.C. The Magistrate convicted the respective petitioners and sentenced them to a fine of Rs. 60/-jointly in each of the cases. But in the appeals tiled by the respective petitioners, this irregularity was corrected and the convictions were confirmed, and separate tines were imposed on each of the petitioners.

2. The facts relating to the two revision petitions are more or less similar. The respective petitioners in each of the cases were alleged to have killed a pig each of the respective respondents at about 1-00 p.m. on 12-9-1960. The respective respondents filed separate complaints before the Magistrate on 13-9-1960. The Magistrate did not examine the respective complainants on oath in either of the complaints but sent the complaints for report by the Police. In both the cases, the Police reported that the fact of the killing of the pigs by the respective petitioners was true, but that it appeared to have been done because, the respective respondents cut trees from the village forest reserve and the killing was a sort of fine in accordance with the tribal custom and hence the dispute was of a civil nature. On receipt of the Police reports, the Magistrate dealt with the cases as if he was dealing with private complaints and directed the issue of process to the accused persons after realising the necessary fees from the complainants. He then proceeded with the cases in accordance with the procedure for warrant cases prescribed under Section 252 Cr. P. C. He examined two witnesses in each of the cases and then he framed the charge under Section 428 I.P.C. against the respective accused. Then prosecution witnesses were examined and he examined the accused under Section 342 Cr. P. C. and the accused persons pleaded not guilty to the charge. Thereafter, he examined 1 D. W. in each of the cases. Then he proceeded under Sec. 540, Cr. P. C and examined two Court witnesses in each of the cases and afterwards he again examined the accused persons in respect of the evidence given by the Court witnesses and thereafter convicted and sentenced the accused persons by separate judgments pronounced on the same day.

3. What was argued before me in the revision petitions by the Advocate appearing for the respective petitioners was that the procedure adopted by the Magistrate in the two cases vitiated the entire trial. He would say that when the Magistrate without examining the complainants on oath sent the complaints to the Police for investigation and report, he acted under Section. 156 (3) Cr. P. C. that the reports submitted by the Police must be treated as reports under Section 173 Cr, P. C. and that when the Police reported that the cases were of a Civil nature, the Magistrate cannot thereafter take cognizance of the cases under Section 190 (1) (a) Cr. P. C. as if on complaint and without taking the sworn statements of the complainants under Section 200 Cr. p. C. and without following the procedure provided under Sections: 202 and 203 Cr. P. C, he cannot straightaway proceed to issue process under Section. 204 Cr. P. C. and go on with the enquiry under Section 252 Cr. P. C. It was also pointed out that if the Magistrate was taking cognizance ot the case under Section 190 (1) (b) Cr. P. C. as if upon Police reports in writing of facts which constitute the offence his subsequent procedure ought to have been under Section 251 (A) Cr. P. C. and not under Section 252 Cr. P. C. Thus, it was pointed out that the procedure adopted by the Magistrate was materially irregular and that the accused were seriously prejudiced by such procedure and that their convictions and sentences as a result of a highly irregular enquiry should be set aside.

4. These questions of law have been taken up by the petitioners for the first time in revision, I find that neither in the Magistrate's Court nor in the appeals were these irregularities pointed out. On the other hand, I find from the order sheets of the Magistrate dated 27/-3-1961 in both the cases, that the Advocates for the complainants as well as the accused were heard by the Magistrate and that the charge under Section 428 I.P.C. was framed as agreed by both the counsel after two witnesses were examined under Section 252 Cr. P. C. Thus, the procedure adopted by the Magistrate does not appear to have been questioned in the Magistrate's Court nor in the appellate Court. Under such circumstances, I cannot seriously hear arguments regarding the irregularity of procedure unless, it is shown to me that any such irregularity has seriously prejudiced the petitioners in the trial conducted by the Magistrate.

5. No doubt there appears to have been some irregularity in the procedure. When a Magistrate receives a complaint, he has two courses open before him, as pointed out in the Supreme Court decisions R. R. Chari v. State of Uttar Pradesh, : 1951CriLJ775 , Narayandas Bhagwan-das v. State of West Bengal, : 1959CriLJ1368 and Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986 He can either take cognizance of the case under Section 190 (1) (a) by applying his mind to the case after examination of the complainant under Section 200 Cr. P. C. and by proceeding further under Sections 202, 203 and 204 Cr. P. C. or he need not take cognizance of the case and he can send It for Police investigation under Section 156 (3), Cr. P C.

In the two cases before us, the question arises as to which of the two courses, the Magistrate adopted. Did he take cognizance under Section 190(l)(a) and proceed under Sec. 202 and direct an enquiry by the Police or did he without taking cognisance send it for a Police investigation under Section 156 (3) Cr. P. C? Having regard to what the Magistrate did on receipt of the Police reports, we have to take it that he dealt with it as it he had already taken cognisance of the cases under Section 190 (1) (a) and that he sent them for Police enquiry under Section 202 Cr. P. C. and not that he sent them for Police investigation under Section 156 (3) Cr. P. C. without taking cognisance of the cases. I say so because after receiving the Police reports he appears to have proceeded straightaway under Section 204 Cr. P. C. by issuing process and to have started the enquiry under Section 252 Cr. P. C. as if on private complaint. Thus, I have to take it that the reports submitted by the Police were not reports under Section 173 Cr. P. C. but only reports submitted under Section 202 Cr. P. C.

6. But there has been a serious lacuna on the part of the Magistrate in that at the time of taking cognizance of the case, he did not examine the complainants on oath under Section 200, Cr. P. C. as he should have done and this was seriously stressed before me for the petitioners. My attention was also drawn for the petitioners to the decision Akshoy Kumar v. Jogesh Chandra, : AIR1956Cal76 . In the said case, the Magistrate had failed to examine the complainant on oath and had sent it for Police investigation and this was treated as under Section 156(3) Cr. P. C. and when the Police reported under Section 170 Cr. P. C. that the complaint was false, the complainant filed a Naraji petition. Even after receiving the Naraji petition, the Magistrate did not examine the complainant on oath, but sent it for judicial enquiry and at that stage the matter was taken to the High Court. The Calcutta High Court held that the procedure adopted by the Magistrate was wrong without examining the complainant on oath and they directed the Magistrate to deal with the complaint in accordance with law.

7. But in the cases before us, all that stage has passed and the petitioners did not move the higher Court when the Magistrate proceeded under Sections 204 Cr. P.C. and 252 Cr. P. C. but on the other hand submitted to the jurisdiction of the Court and even agreed that a charge under Section 428 I.P.C. may be framed against them and the trial proceeded on that basis and the convictions and sentences followed. In such a case, unless the petitioners are able to show that the irregularity committed by the Magistrate in not examining the complainants on oath has seriously prejudiced their defence and has resulted in miscarriage of justice, it is not possible to hold that the convictions and sentences are bad in law.

The decision of the Orissa High Court, Api Samal v. Bisl Wallik, : AIR1953Ori83 , has held in almost similar circumstances as in the present case, that it must be held that the Magistrate really took cognizance under Section 190 (1) (a) even though he acted under a wrong impression that he was taking cognisance under Section 190 (1) (b) and that his commission to examine the complainants was only an irregularity not vitiating the trial. After all the object of an examination under Section 200 is intended, as pointed out in the AIR Commentaries on. the Code of Criminal Procedure under Section 200 Note 2, to ascertain the facts constituting the offence where they are not given in the written complaint and to separate unfounded from substantial cases at the outset and to prevent innocent persons from being brought into Police custody and subjected to the annoyance of frivolous charges and to help the Magistrate to judge if there are sufficient grounds calling for investigation and for proceeding with the case. That is why such examination of the complainant is not considered necessary when the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties as provided under Section 200 Cr. P. C. Thus the failure to take a sworn statement even though it is a valuable safeguard provided by the Legislature and has to be scrupulously observed is not a matter which can be raked up by the accused persons for the first time in revision after the whole trial is conducted and after he has been convicted. A Court will give heed to such a complaint only it is shown that by such failure there has been miscarriage of justice and that the accused persons were prejudice in their defence. It has not been pointed out to me how the accused persons were prejudiced by the irregularity committed by the Magistrate in not taking the sworn statements of the complainants under Section 200, Cr. P. C. Under such circumstances I do not consider it necessary in this case to set aside the convictions and sentences on the sole ground of the failure of the Magistrate to take the sworn statements of the complainants,

8. On the merits, the petitioners have no case at all. Both the Courts have discussed the evidence and come to conclusion that the accused persons killed the pigs belonging to the complainants and there was evidence that the value of the pigs was more than Rs. 10/- each I do not consider it necessary to interfere with the appreciation of evidence by the lower Courts and after perusal of the oral evidence I find that the cases have been proved against the petitioners. Both the revision petitions are dismissed and the convictions and sentences of the petitioners are confirmed.


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