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Emperor Vs. Shivaswami Guruswami - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 463 of 1926
Judge
Reported inAIR1927Bom440; (1927)29BOMLR742
AppellantEmperor
RespondentShivaswami Guruswami
Excerpt:
.....by police without order of magistrate-charge sheet-cognizance by magistrate-examination of police-officer and prosecution witnesses-framing of charge-cognizance of offence upon complaint-magistrate cannot acquit on the ground that proceedings are void ab initio for absence of complaint.;the police made an investigation against the accused, without the order of a magistrate under section 155(2) of the criminal procedure code, for three offences, one of which was cognizable and two were non-cognizable. the accused was then sent up to a magistrate on a charge-sheet charging him with offences under sections 414, 385 and 204 of the indian penal code. the magistrate took cognizance of the offences, examined the sub-inspector of police (who was the official superior of the accused) and..........by the sub-inspector in this case can be treated as a report in writing of such facts made by any police-officer, under clause (b) of section 190, or a complaint under clause (a) of section 190, and whether the learned magistrate could take cognizance of the present case either under clause (a) or (b) of that section. in the full bench case of king-emperor v. sada i.l.r. (1901) 26 bom. 150: 3 bom. l.r. 586. it was held that there is no section in the criminal procedure code, 1898, which empowers a police-officer to make, of his own motion, any report to a magistrate in a non-cognizable case; hence, where he flies a formal complaint in such a case, he cannot be said to 'make a report' and his complaint falls within the definition of 'complaint' in section 4(h) of the criminal procedure.....
Judgment:

Patkar, J.

1. [His Lordship, after stating the facts as above, proceeded :] It is argued by the learned Government Pleader that one of the offences, namely, that under Section 414, was a cognizable offence and therefore the investigation was legal, and even if the case be considered as relating to non-cognizable offences, the report of the Police should be considered as a complaint under Clause (a) of Section 190 of the Criminal Procedure Code, if it did not fall under Clause (b) of Section 190. It. appears that the offence under Section 414 of the Indian Penal Code mentioned as one of the offences in the charge-sheet is a cognizable offence, and the investigation by the Sub-Inspector in respect of the other non-cognizable offences could not be illegal if they were also investigated during the investigation of the cognizable offences. See the case of In re Venkanna A.I.R. [1925] Mad. 856. As no offence under Section 414 is either alleged or proved to have been committed by the accused it will be necessary to treat the present case as relating to non-cognizable offences. The question, therefore, that has to be decided in the present case is whether the charge-sheet sent by the Sub-Inspector in this case can be treated as a report in writing of such facts made by any police-officer, under Clause (b) of Section 190, or a complaint under Clause (a) of Section 190, and whether the learned Magistrate could take cognizance of the present case either under Clause (a) or (b) of that section. In the Full Bench case of King-Emperor v. Sada I.L.R. (1901) 26 Bom. 150: 3 Bom. L.R. 586. it was held that there is no section in the Criminal Procedure Code, 1898, which empowers a police-officer to make, of his own motion, any report to a Magistrate in a non-cognizable case; hence, where he flies a formal complaint in such a case, he cannot be said to 'make a report' and his complaint falls within the definition of 'complaint' in Section 4(h) of the Criminal Procedure Code, 1898. In that case, the police officer, as a matter of fact, had filed a formal complaint of a non-cognizable offence, and he was ordered by the Magistrate under Section 250 to pay compensation to the accused, and it was argued that the definition of complaint in Section 4(h) excluded a police report and that when a police-officer brought any facts to the knowledge of a Magistrate, he was a really making a police-report and was not making a complaint, and therefore Section 250 was not applicable. It is with reference to this argument that it was held that in a non-cognizable offence, a police-officer was not empowerd to make, of his own motion, any report to a Magistrate, and that when he actually filed a formal complaint he was not, in fact, making a report. The point which arises in this case is not, therefore, covered by the decision of the Full Bench. But it appears that it was held in the Full Bench decision that there was a close connection between.

(a) 'the report of a police-officer' which is by Section 4(1)(h) of the Code excluded from the definition of 'complaint;'

(b) the report of a cognizable offence, which a police-officer is to send to a Magistrate empowered to take cognizance of such offence upon a police report (Sections 167, 173); and

(c) the cognizance of any offence, which a Magistrate may take upon a police report of the same (Section 190(1)(b)).

2. There is a change in the wording of Clause (6) of Section 190. The words 'upon a police report of such facts' have been changed into 'upon a report in writing of such facts made by any police officer.' It appears that under Act X of 1872, Section 140, a Magistrate was empowered to take cognizance of an alleged offence upon information or report by a police-officer as to a non-cognizable offence. Such information or report was to be regarded as a complaint. The Code of 1882 did away with the report of a police-officer in a non-cognizable case except by an order of the Magistrate and the informant was to be referred to a Magistrate. If the police made a report after investigation under Section 155, Clause (2), under the order of a Magistrate, it would fall under Clause (b) of Section 190 of the Criminal Procedure Code even though the offence was a non-cognizable one. Apart from any decided cases, the wording of Section 190 empowers a Magistrate to take cognizance of any offence upon a report in writing of such facts by any police-officer. The wording is quite general and would include even a non-cognizable offence being taken cognizance of by a Magistrate, upon a report in writing by a police-officer. If the report in writing by a police-officer be restricted to a report which a police-officer is authorized to make under Section 173 in respect of a cognizable offence, the same meaning will have to be attached to the words 'report of a police-officer' which is excluded in the definition of 'complaint' in Section 4(h) of the Criminal Procedure Code. It would, therefore, follow that the report of a police-officer in respect of a non-cognizable offence if it contains an allegation in writing to a Magistrate with a view to his taking action under the Code that some person has committed an offence, would amount to a complaint within the meaning of Section 4(h). There is no difference in the Code as to the procedure to be followed by the Magistrate under Section 190, Clause (a) and the procedure to be followed by the Magistrate under Section 190, Clause (b), except that provided by Chapter XVI, i.e., Sections 200 to 208 of the Criminal Procedure Code. Before the amendment of Section 200 by Clause (aa), it might have been necessary to examine the police-officer if his report in regard to a non-cognizable offence was treated as a complaint, but under the present Section 200, Clause (aa), the examination of the police-officer who is a public servant acting or purporting to act in the discharge of his official duties is not necessary. In Bhairab Chandra Barua v. Emperor I.L.R. (1919) 46 Cal 807 it was held that a police report in a non-cognizable case was either a 'complaint' under Section 4(h), or a 'police report' under Section 190(1)(b) of the Criminal Procedure Code, and the Magistrate had jurisdiction to take cognizance of a non-cognizable offence on a police report. The decision in the Calcutta case followed an earlier case, Harihar Roy v. Emperor I.L.R. (1918) cal. 810, n, and the ground of the decision was that in the definition of 'complaint' in Section 4(1)(h) of the Code it was stated that the term did not include 'the report of a police-officer', and that if the expression 'police-report' was to have a restricted meaning, then the meaning of the expression 'report of a police-officer' must be strictly restricted so as to bring the report made by the police-officer of his own motion in a non-cognizable case within the definition of 'complaint'. In the Full Bench case of The Public Prosecutor v. Ratnavelu, Chetty I.L.R. (1926) 49 Mad. 525. it was held that, by virtue of Section 190(1)(b) and Section 200(aa) of the Criminal Procedure Code, the Magistrates mentioned in Section 190 are entitled to take cognizance of even non-cognizable offences upon a report made in writing by a police-officer without examining the officer upon oath. Waller J., one of the referring Judges, at p. 532 has laid stress upon the words 'upon information received from any person other than a police-officer ' in Clause (c) of Section 190, and says that the Criminal Procedure Code obviously contemplates the possibility of information other than a formal report under Section 173 being received by a Magistrate from the police, and that the Legislature did not intend that the Magistrate though empowered to take cognizance on information from any other person must, when he receives information from a police-officer of a non-cognizable offence, hold his hand and decline to take cognizance. The view adopted in Bhairab Chandra v. Emperor is accepted by Madgavkar J. in Emperor v. Abasbhai (1925) 28 Bom. L.R. 272.

3. Under Section 529, Clause (e), if any Magistrate not empowered by law 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 merely on the ground of his not being so empowered; whereas under Section 530, Clause (k), if any Magistrate, not being empowered by law takes cognizance under Section 190, Sub-section (1), Clause (c), of an offence, his proceeding shall be void. A distinction is, therefore, made between a Magistrate taking cognizance under Section 190, Sub-section (1), Clauses (a) and (b), and Sub-section (1), Clause (c), The word 'empowered' in Sections 529 and 530 may refer to the ordinary or special powers referred to in Sections 36 and 37 and Schedules 8 and 4 of the Criminal Procedure Code. In the case of a Magistrate not empowered under Sections 36 and 37 to take cognizance of an offence under Section 190, Sub-section (1), Clauses (a) and (b), erroneously in good faith takes cognizance, his proceedings shall not be set aside on the ground of his not being empowered. In the present case, the Sub-Divisional Magistrate, as a matter of fact, was empowered under part 4 of Schedule 3 of the Criminal Proceedure Code to take cognizance of a non-cognizable offence under Section 190, Sub-section (1), Clauses (a) and (b), and did, as a matter of fact, take cognizance of this case on a police-report of a non-cognizable offence, and framed a charge against the accused. The proceedings of the Sub-Divisional Magistrate would, therefore, be less open to objection by virtue of Section 529, Clause (e). Speaking for myself, I am inclined to take the view that a Magistrate can in a proper case treat a police report of a non-cognizable offence as a complaint and take cognizance under Section 190, Clause (a), of the Criminal Procedure Code. I have the less hesitation to take that view in the present case where a charge-sheet was sent by Bando, the Sub-Inspector, who was the official superior of the present accused, a Head Constable, and who would, in the ordinary circumstances, be the person investigating an offence committed by his subordinate. Bando was examined as a witness in this case and in his evidence before the Court has fully supported the allegations against the accused.

4. The point with regard to jurisdiction was not raised at the initial stage of the case when, if necessary, the Sub-Inspector Bando might have supplied the defect, if any, by filing a formal complaint. The case of Emperor v. Chandri : (1924)26BOMLR1225 was decided on the special facts of that case, and the point of jurisdiction was raised at the very beginning of the case. In the case of Reg. v. Sangapa (1873) Unrep. Cr. C. 73 it was held that the Magistrate was not justified in discharging the accused person merely because he had been illegally arrrested by the police without a warrant issued on a complaint for a non-cognizable offence.

5. On the whole, I think, under the circumstances of the present case, the Magistrate could have treated the report of the police officer as a complaint, when he as a matter of fact took cognizance of the case, examined the Sub-Inspector who was the official superior of the accused and who could properly complain of the accused's conduct in this case, and also framed a charge.

6. I would, therefore, reverse the order of acquittal, and direct the Sub-Divisional Magistrate to continue his inquiry from the point at which he made the order of acquittal, and proceed to take further evidence in the case, and to deal with the accused in accordance with law.

Fawcett, J.

7. I agree substantially with the reasoning in the judgment just delivered. If the view that has been adopted by the Calcutta and Madras High Courts were taken, there would be no necessity to consider whether the report-the charge-sheet in this case-should or should not be treated as a complaint giving jurisdiction to the Magistrate under Clause (a) of Section 190, for both those Courts have in effect decided that the words 'a report in writing...made by any police-officer' in Clause (b) of Section 190 cover any report made by a police-officer, whether of a cognizable or a non-cognizable offence. That is clearly laid down in The Public Prosecutor v. Ratnavelu Chetty I.L.R. (1926) 49 Mad 525, F.B. It is also the view that commended itself to Mookerjee and Chatterjee JJ. in In re Nagendra Nath Chakravarti I.L.R. (1923) Cal. 402. There it is observed that, under the amendment introduced by Section 45 of Act XVIII of 1923 in Clause (6) of Section 190, the expression 'police report,' which had been interpreted in a technical sense, has been replaced by the non-technical expression 'report made by any police-officer.' This conclusion, no doubt, has the merit of simplicity. But it seems to me that it is not open to us, in face of the Fall Bench decision in King-Emperor v. Sada I.L.R. (1901) 29 Bom. 150: 3 Bom. L.R. 586. to adopt the same view. At any rate, I think that, until the whole question has been fully considered by a Full Bench, it would not be proper for us to make such a great departure from the construction that is put upon Clause (b) of Section 190 by the Full Bench in Sada's case.

8. Personally, I do not think the amendment made in 1923 shows very clearly that, in fact, there was an intention to make Section 190(i) (b) cover a report, not only in a cognizable case, but also in a non-cognizable case, at any rate, where a police-officer has no authority to investigate it under Section 155 of the Code, I have already in Emperor v. Chandri I.L.R. (1924) 49 Bom. 212 26 Bom. L.R. 1225 expressed the view that that clause can cover a report made in a non-cognizable case, which a police-officer has been authorized by a Magistrate to investigate. But it seems to me that, unless the contrary intention of the Legislature is clear, it would be disregarding the provisions of Sub-section (2) of Section 155 to say that the expression 'report made by any police-officer' in Section 190(1)(b) covers a case where he is expressly prohibited from investigating and reporting. Therefore, until Sada's case is overruled, I think it must be followed, especially as the other view would nullify the ruling in Sada's case that Section 250 can apply to a police-officer, who makes a false and frivolous or vexatious complaint in the form of a report.

9. I agree with my learned brother that, if a police-report under Section 190(1)(b) is limited in this way, the reference to a police-report in Clause (h) of Section 4 must similarly be limited; and, therefore, there is scope for a police-report being treated as a complaint in a proper case, as in fact has been held in Sada's case. In Chandri's case it was held that the report could not properly be treated as a complaint, but Sada's case lays down that there may be cases where it can be so treated, for instance, where the police-officer has himself seen the alleged offence committed, as mentioned by Candy J. in his judgment at p. 156, I think it might also cover a case where an alleged non-cognizable offence is brought to the notice of a police-officer so soon after its commission, that there was a direct connection between the offence and the police-officer's intervention in the matter, such as cases where he is called on to take action under Sub-section (1) of Section 57 of the Code. It must be remembered that, as ruled in In Re Ganesh Narayan Sathe I.L.R. (1889) 13 Bom. 600, a complaint can be made, except in special cases that are provided for in Sections 195 to 199, not only by the actual person aggrieved but by any one, having knowledge of the commission of an offence.

10. In the present case, there is clearly good ground for treating the charge-sheet as a complaint. The Sub-Inspector had, under the Bombay District Police Act and the rules thereunder, power to investigate the alleged misconduct of his subordinate that had been brought to his notice; in fact he was the officer who first discovered the alleged offence. As has been pointed out in Sada's case, Section 51 of Bom. Act IV of 1890 directs police officers to do their best to take steps to bring offenders to justice. The case is somewhat similar to that of Harihar Roy v. Emperor I.L.R. (1918) Cal. 810 n, where a report was made by a police-officer of the misconduct of a sub-ordinate. I do not see who else could more appropriately have made the complaint, especially as he did so under the orders of the Deputy Superintendent of Police, In Chidambaram Pillai v. Emperor I.L.R. (1908) 32 Mad. 3 it was held that a police-officer could properly make a complaint, where he made it under the orders of Government. Again, another instance is that of Emperor v. Ghulam Husaain (1924) 25 Crim L.J. 1361, where the police-officer making the written report was also a public prosecutor and made it with a view to the Court's taking action. Therefore, in my opinion, this is not a case where it can be said that the Magistrate had no jurisdiction to take cognizance of the alleged offence.

11. I would add that I am not satisfied that, as a matter of fact, the Sub-Inspector could not properly have treated the ease as a cognizable one. The alleged offence of the accused might certainly be held to fall under Section 213 of the Indian Penal Code, which, under an amendment of 1923, is now a cognizable offence. It is certainly a reasonable proposition that the accused's act, if proved, would amount to taking a gift in consideration of his not proceeding against a person for the purpose of bringing him to legal punishment ; and the offence alleged to have been committed by that person, if it did not fall under Section 379, would, according to the evidence of the Sub-Inspector, fall under Section 406. An offence under either of those sections is non-compoundable; so that the exception in Section 214, Indian Penal Code, does not apply; and the Court, in considering whether the Sub-Inspector could reasonably regard it as a cognizable case, should, of course, have regard to the reasonable suspicion or information of the Sub-Inspector at the time when he commenced his investigation, even though subsequent inquiry might show that he was mistaken in his reasonable belief that it was a cognizable case. This would be in accordance with the provisions of Sub-section (2) of Section 156 which says that no proceeding of a police-officer in any such case, i.e., a case that he has treated as cognizable-shall at any stage be called in question on the ground that the case was one which such officer was not empowered under that section to investigate. No doubt, the Sub Inspector treated it as cognizable, because he held the view that Section 414 would apply to the alleged offence. That, no doubt, would be straining the provisions of Section 414; but if any other section is found to apply, so as to make it a cognizable case, there is no reason why the Sub-Inspector's action should not be held justified under that particular section, although he may not himself have investigated the case with reference to that particular section. Of course, for a conviction under Section 218, it would be necessary under certain rulings to prove that there had been, in fact, an offence committed under Section 406. But that does not affect the authority of the Police Sub-Inspector to investigate. We must have regard to what was the allegation before him, and not as to what may be proved in a subsequent trial. But, even if this view is wrong, for the reasons I have already given, I think that there is clearly adequate ground for holding that the Magistrate had jurisdiction.

12. This in a case in which the learned Magistrate has stopped the trial on a preliminary point. Therefore, under Section 423, Sub-section (1), Clause (a), it is a case for further inquiry being directed, and the Magistrate should proceed as stated in my learned brother's judgment.


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