Narendra Nath Sen Gupta, J.C.
1. This is an application for revision of an order of the Sub-Divisional Magistrate of Agartala taking cognizance of a case against the Petitioner on the ground that the action of the Magistrate was illegal and for quashing the proceedings based on such cognizance.
2. It appears that the learned Magistrate took cognizance on a charge-sheet submitted by the officer in charge of the Kotwali Police Station, in which there is a reference to a first information—No. 33 dated 17.4.50. The charge sheet does not conform to the provision of Section 173(1)(a) nor does it contain the statement of the facts constituting the offences indicated by the sections of the Indian Penal Code noted in column 7 thereof, namely: 143, 447, 364, 302/34 I.P.C. as required by Section 190(1)(b), Cr.P.C.
3. The main contention of petitioner is that the action of the Magistrate was illegal and the proceedings were liable to be quashed.
4. A Rule was issued and in showing cause why the proceedings should not be quashed the learned Magistrate stated as follows:
it is a long standing practice here to submit charge-sheet by the Police, simply quoting the section under which the accused is sent up for trial. In pursuance of that practice the offences stipulated in the charge-sheet have been taken cognizance.
He went on to say that
it was a legal error, it was done in good faith and as such the defect is curable under Section 529, Cr.P.C.
5. The mere fact that a practice was long standing cannot cure a defect which is not warranted by the law. The Indian Criminal Procedure Code was brought into operation quite a long time ago and the defect in the practice should have been set right long before the present proceedings started. An illegal action cannot also be held to be legal on the ground that it was done in good faith.
6. It appears that the petitioner had moved the Sessions Judge of Agartala for a relief but the learned Judge observed as follows:
On consulting the record, I find that cognizance of the offence was taken by the Magistrate on 8.12.50 when the accused persons were present in the Court. No objection was taken on behalf of the accused on that date that the Magistrate acted illegally by taking cognizance of the offence on the Police-report which contained no statement of facts constituting the offence. I therefore find that this proceeding was taken by the Magistrate and also completed by him erroneously and in good faith on 8.12.50 and want of authority on the part of the Magistrate was not pointed out to the Magistrate though the accused was present before him on that date. This defect was therefore cured according to the provisions of Sub-section (e) of Section 529, Cri.P.C.
7. The learned Sessions Judge made a fundamental mistake in considering that a legal defect can be cured if the accused does not point out such mistake to the Court. No principle of the nature of waiver, acquiescence or estoppel can arise against the accused in criminal cases and legal consequence must follow all actions and decisions of the Courts whether the accused does or does not raise objection at an earlier stage.
8. It is also not understood why the aid of Section 529, Cr.P.C. has been invoked by the trial Court and the learned Sessions Judge in seeking to cure the defect in the action of the learned Magistrate. The relevant portion of Section 529 Cr.P.C. reads as follows:
If any Magistrate not empowered by law to do any of the following things, namely:
* * *
(e) to take cognizance of an offence under Section 190, Sub-section (1), Clause (a) or Clause (b);
* * *
erroneously in good faith does that thing, his proceedings shall not be set aside on the ground of his not being so empowered.
9. In the present case, the Magistrate was unquestionably empowered under Section 190 of the Cr.P. Code to take cognizance under Sub-section (1) Clause (a) and Clause (b). There can, therefore be no question of curing any defect arising out of absence of the requisite power and Section 529 cannot therefore be attracted.
10. That there has been non-compliance with the provisions of Section 173(1)(a) as also of Section 190(1)(b) is clear on the face of the charge-sheet and is not disputed. The learned State Advocate contended that, the F.I.R. the number whereof has been noted on the charge-sheet, should be treated as a part of the charge-sheet. In support of his contention, he has referred to the ruling of the Patna High Court in the case of Hemendra Nath v. Emperor AIR 1937 Pat 160, at p. 163. It appears from the ruling however that although the facts constituting the offence 'were not actually written out in the document called the charge sheet, they were contained in a document annexed to the charge sheet' and this was, in the opinion, of the Hon'ble Judge, a sufficient compliance with the requirements of Section 190 (1)(b) of the Cr.P.C. It appears from the record of the present case F.I.R. mentioned In the charge-sheet was not appended or annexed thereto. Further the so called F.I.R. does not contain any statement of facts constituting the offence mentioned in the charge sheet. The ruling is not therefore applicable to the present case. The Magistrate does not also say that cognizance was taken on this or any other information.
11. The present case seems to be covered by the Ruling in Lee v. Adhikary 37 Cat 49; Nagendra Nath v. Emperor AIR 1924 Cal 476 at p. 479 In re Shivlingappa Bhagappa AIR 1930 Bom 372. The recent amendment of Sub-section (1) Clause (b) of Section 190, Cr.P.C. in 1923 did not alter the spirit of the law in any way. On the authority of the rulings referred to above, this Court is of the opinion that the taking of cognizance of the case against the petitioner on the basis of the defective charge sheet was illegal.
12. The learned State Advocate contended that the provision of Section 537, Cri. P.C. should apply to the present case. All I need say in this connection is that in none of the rulings referred to above non-compliance with the provisions of Section 173 (1)(a) or Section 190(1)(b) of the Criminal Procedure Code was held to be a defect curable under the provision of Section 537 of the Code and in all those cases the proceedings were quashed on account of these defects. It is difficult to say also that the illegality has not occasioned any failure of justice. Justice requires that the accused should know the facts constituting the offence of which cognizance is being taken by the Magistrate so that he might be in a position to raise objections at the earliest opportunity and it is for this purpose among others that a mandatory provision has been made in the law for a statement of such facts in the charge sheet or in any other form of report or information. Noncompliance with the mandatory provisions cannot therefore be cured by the provision of Section 537, Cr.P. Code., so far as the present case Is concerned.
13. From what has been stated above, this Court is clearly of opinion that cognizance taken by the learned Magistrate was illegal and the proceedings based on such cognizance must be1 quashed.
14. The proceedings before the Magistrate are therefore quashed and it is ordered that the accused be discharged immediately. Send copies of the order to the sub-divisional Magistrate, Agartala and the Superintendent of the Central Jail for immediate compliance.