1. This revisional application raises some interesting questions affecting the jurisdiction of the learned Magistrate to try the case in pursuance of the charge-sheet submitted by the prosecution against the accused. The material facts which give rise to the said points of law are not in dispute. The petitioner is a graduate in law and had been employed as a Legal Assistant to the Director of Civil Supplies Accounts, Bombay. As such he is a public servant. The police received information from one Shivlal that as such public servant the petitioner was demanding a reward of Rs. 100 from Shivlal for having done an official act. The said Shivlal had entered into a contract with the Government of Bombay, Food Department, in January 1947, for the supply of certain commodities and had deposited Rs. 1,000 with the Government for fulfilment of the said contract. Shivlal was, however, unable to perform the contract and had applied to the petitioner for cancellation of the said contract and for the return of the deposit of Rs. 1,000. The deposit amount was ordered to be returned, and, according to Shivlal, the petitioner was demanding Rs. 100 as a reward in that behalf. On receiving this information Sub-Inspector Mistry prepared a trap and proceeded to take the usual steps to entrust Shivlal with marked currency notes of the value of Rs. 100 in the presence of panchas and to arrange for further steps in pursuance of the said trap. Accordingly, Shivlal approached the petitioner and, according to the prosecution, the petitioner accepted from him the amount of Rs. 100 in the form of the marked currency notes. Thereupon Shivlal made the agreed signal and Sub-Inspector Mistry raided the place when the marked currency notes were produced by the petitioner from the pocket of his trousers. A panchanama of this incident was duly made and the petitioner was put under arrest. Sub-Inspector Mistry then carried on further investigation into the offence and as a result he sent a charge-sheet against the petitioner on May 20, 1947, in the Presidency Magistrate's 18th Court, Girgaum, alleging that the petitioner had committed an offence punishable under Section 161 of the Indian Penal Code, 1860. When the hearing of the case commenced in the Court of the learned Magistrate, the petitioner challenged the jurisdiction of the Magistrate to try the case on the ground that the arrest of the petitioner, and the investigation of the case, made by Sub-Inspector Mistry which had given rise to the charge-sheet in question, were illegal and without jurisdiction and that the proceedings initiated on such a charge-sheet could not be maintained.
2. In order to appreciate the contentions thus raised by the petitioner it is necessary to refer to the provisions of two recent Acts, Bombay Act XXX of 1946 and India Act II of 1947. Section 8 of the Bombay Act provides that in Schedule II to the Code of Criminal Procedure in the third column in the entry relating to Section 161 for the words 'shall not' the word 'may' shall be substituted. A similar amendment was made in regard to Section 166. The result of this amendment is that the offence punishable under Section 161 has become a cognizable offence so that a public officer who is charged with the commission of the offence can be arrested without a warrant under Section 4(f), and the investigation into the offence can be conducted by any officer in charge of a police-station without the order of a Magistrate under the provisions of Section 156(7) of the Code of Criminal Procedure.
3. Section 3 of India Act II of 1947 deals with offences punishable under Sections 161 and 165 of the Indian Penal Code and provides that the said offences shall be deemed to be cognisable for the purposes of the Code of Criminal Procedure, notwithstanding anything to the contrary contained therein. A proviso is, however, added to this section which says that a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the first class or make any arrest therefor without a warrant.
4. It is thus clear that whereas under the provisions of the Bombay Act the offence punishable under Section 161 is cognizable, and the offender can be arrested by any police officer and the investigation of the said offence can be made by any police officer in charge of the police station, under the provisions of the Indian Act the said offence is cognizable with certain limitations and that a police officer below the rank of Deputy Superintendent of Police cannot either investigate the said offence or arrest the offender without a warrant. The argument which the petitioner urged before the learned Magistrate was that the provisions contained in the Bombay Act as to the investigation of the offence punishable under Section 161 and as to the arrest of the offender concerned are repugnant with similar provisions contained in the India Act, and that the provisions of the provincial law must, to the extent of the repugnancy, be held to be void. That is why it was contended by the petitioner that the investigation of the offence and his arrest made by Sub-Inspector Mistry without the authority of the Magistrate were illegal. His contention was that the charge-sheet submitted as a result of the said illegal arrest and in consequence of the investigation held by the Sub-Inspector without authority or jurisdiction would not empower the Magistrate to try his case. The learned Magistrate was, however, not impressed with these arguments. He held that there was no repugnancy in the respective provisions of the two Acts as suggested by the petitioner and that in any event he could treat the charge-sheet as a report within the meaning of Section 190(1)(b) of the Code of Criminal Procedure. On these findings the learned Magistrate overruled the petitioner's contentions and set down the case for further hearing. The petitioner has come to this Court against the findings made by the learned Magistrate, and it has been argued on his behalf that though the matter has been brought to this Court at an interlocutory stage, it involves a question of jurisdiction and that this Court would be justified in considering the said point in exercise of its jurisdiction under Section 439 of the Code of Criminal Procedure. The learned Government Pleader has also agreed that the matter is of some importance and our decision may affect other cases of this type, and he has urged that it would avoid unnecessary inconvenience, expense and delay if we decide the matter on the merits and deal with all the points argued on both sides at this stage.
5. Before determining the question of repugnancy it is necessary to ascertain whether the provisions of the India Act apply to the City of Bombay. The learned Government Pleader has contended that the said provisions do not apply to the City of Bombay, and we are disposed to take the view that this contention is well founded. As I have already mentioned, Section 3 of the India Act prohibits police officers below the rank of Deputy Superintendent of Police from investigating an offence under Section 161 or from arresting the offender without the order of a Magistrate of the first class, in other words this section refers to the police officers below a specified rank and to the Magistrates of a particular class. The police officer falling within the scope of the proviso must be a police officer below the rank of a Deputy Superintendent of police, and the Magistrate whose sanction such police officer must obtain before investigating the offence or arresting the offender is described as a Magistrate of the first class. Now, in the City of Bombay there is no police officer who holds the rank of a Deputy Superintendent of Police, and there is no Magistrate who can be legally described as a Magistrate of the first class. The law relating to the police in the City of Bombay is contained in the Bombay City Police Act, Bombay IV of 1902. Section 3(b) of the said Act defines 'Police Officer' as meaning any member of the Police force for the City of Bombay appointed under the Act, and provides that the said expression shall include the Commissioner of Police, a Deputy or Assistant Commissioner of Police, and, in certain cases, an additional or special Police Officer. 'Officer in charge of a section' is defined by Section 3(c) as including, when the Inspector in charge of the section is absent or unable to perform his duties, the next senior Police Officer in the section, or such other officer as the Superintendent of the Division may, with the sanction of the Commissioner of Police, appoint in that behalf. It is true that Section 3(m) defines 'subordinate ranks' as meaning any ranks below that of Deputy Superintendent. This definition has been inserted in the Bombay City Police Act by the adaptation of Indian Laws Order in Council in 1937, and is in terms identical with a similar definition in the Bombay District Police Act. The Bombay District Police Act provides for the appointment of the Deputy Superintendent of Police, but it is common ground that though reference is made to the Deputy Superintendent in Section 3(m), no officer answering the said description is or can be appointed in the City of Bombay. The definition of 'Subordinate ranks' contained in Section 3(m) is material for the purpose of determining the powers of the Commissioner of Police under Section 7 of the Act; but the reference to the Deputy Superintendent in the said definition does not, in our opinion, seem to justify the assumption that in the ranks of the police in the City of Bombay there is any officer satisfying that description. It would therefore be impossible to predicate about any Police Officers in the City of Bombay that they are below the rank of Deputy Superintendent. That being so, it would technically be impossible to hold that Sub-Inspector Mistry is an officer below the rank of the Deputy Superintendent of Police under the provisions of the City of Bombay Police Act.
6. Similarly, in the City of Bombay there is no Magistrate who can properly be called a Magistrate of the first class. Section 6 of the Criminal Procedure Code mentions five classes of Criminal Courts in India and amongst them are the Courts of the Presidency Magistrates and the Magistrates of the first class. Section 12 deals with the appointment of the Magistrates of the first class and provides that the Provincial Government may define local areas within which such Magistrates may exercise all or any of the powers with which they may be invested under the Code, whereas Section 18 deals with appointment of Presidency Magistrates, and Section 20 says that every Presidency Magistrate shall exercise jurisdiction in all places within the Presidency town for which he is appointed. In the matter of recording evidence the procedure followed in the Courts of the Presidency Magistrates is not the same as that in the Courts of first class Magistrates, and some powers such as that of making reference to the High Court which Presidency Magistrates can exercise are not available to first class Magistrates. It is thus clear that in the City of Bombay there is not, and cannot be, any Magistrate who can properly be described as a Magistrate of the first class. Under these circumstances it seems to us that the provisions of Section 8 of India Act II of 1947 cannot be held applicable to the City of Bombay. The words 'the Deputy Superintendent of Police' and 'a Magistrate of the first class', which are used in the proviso to Section 3, must be construed in the light of the definitions of the said officers, and not in any general or loose sense. We are not prepared to hold that these words were used in the proviso accidentally or without their technical meaning. Indian Legislature must have been aware that the said two expressions would not apply to any officers in the City of Bombay, and since they have deliberately used the said words with that consciousness, it would be reasonable to hold that it was intended that City of Bombay and the other presidency towns were not to be governed by the provisions of Section 3. If this conclusion is right, it would follow that so far as the City of Bombay is concerned, the only provisions which apply are those of Bombay Act XXX of 1946, and not the provisions of Section 3 of India Act II of 1947. In that case there can clearly be no question of repugnancy at all.
7. If, however, the provisions of Section 3 of the India Act had been applicable to the City of Bombay, we would have been disposed to hold that there is repugnancy between the provisions of the said Act and those of Bombay Act XXX of 1946. We are not impressed with the argument that the provisions of Section 3 of the India Act relate merely to the Police and thus trespass upon a subject which is exclusively Provincial as falling in List 2. The learned Magistrate took the view that the limitation imposed upon the police officers by the proviso to Section 3 had the effect of creating disabilities against the police officers and thus touched their conduct. He thought that the proviso had reference to the functions of the police and was, therefore, not valid, since the subject of the police is purely a Provincial subject, vide List II, paragraph 2. It seems to us that the provisions of Section 3 must be read as a whole, and we have no doubt that they relate to criminal procedure as mentioned in List III (Concurrent Legislative List) paragraph 2. The words 'Criminal Procedure' used in the said paragraph are clearly wide enough to include the provisions of Section 3 as well as those in the proviso to that section. It would also be no answer to the argument of repugnancy that both the provisions could be followed if the Government of Bombay were to entrust the investigation of such offences and the arrest of such offenders to the Deputy Superintendents of Police or police officers above them. To hold that two laws cannot be said to be repugnant with each other unless there is a direct conflict between them is, we think, putting too narrow an interpretation upon the word 'repugnancy' (vide Stewart v. Brojendra Kishore : AIR1939Cal628 However, since we hold that the provisions of India Act II of 1947 do not apply to the City of Bombay, it follows that Sub-Inspector Mistry committed no irregularity either in investigating the offence or in arresting the petitioner, In that view the case would clearly fall under Section 190(1)(b) of the Criminal Procedure Code and the Magistrate would be entitled to try it as such.
8. It is hardly necessary to point out that though the provisions of Section 3 of India Act II of 1947 are not, in our opinion, applicable to the City of Bombay, it is obviously undesirable that the procedure as regards the investigation of the offence under Section 161 or the arrest of the alleged offender should be different in the City of Bombay from that in the rest of the Province of Bombay. We feel no doubt that in the rest of the Province of Bombay the said offence would have to be dealt with as under Section 3 of the India Act notwithstanding the contrary provisions of the Bombay Act, because the latter provisions are clearly repugnant with the former and must be regarded as void under Section 107 of the Government of India Act, 1935, We invite the attention of the Government of Bombay to this anomalous position and trust that the Bombay Act would be brought into conformity with the provisions of Section 3 of the India Act. We are aware that the provisions of Section 3 are open to the technical objection that as a result of the provisio the offence under Section 161 cannot strictly be regarded either cognizable or non-cognizable as defined in the Code; but we feel no doubt that the safeguards contained in the said provisio are on the whole necessary and desirable. However, that is a matter for the Provincial Government and Legislature to consider.
9. But even assuming that the India Act applies to the City of Bombay and that an irregularity has been committed by Sub-Inspector Mistry in holding the investigation in the present case and in arresting the accused, we are not prepared to hold that the Magistrate would have no jurisdiction to try the case after the matter was brought to his notice in the form of a charge-sheet by Sub-Inspector Mistry. Section 156 deals with the investigation into cognizable cases. Section 156(1) provides that any officer in charge of a police station may investigate any cognizable case without the order of a Magistrate. If the provisions of the India Act be deemed to apply to the present case, it must be held that Section 156(1) is virtually amended and that the police officer referred to in Sub-section (1) must be a police officer above the rank of a Deputy Superintendent of Police; in that case Sub-Inspector Mistry would have had no authority to investigate the offence without the sanction of the Magistrate. But Sub-section (2) of Section 156 provides that no proceeding of a police officer in any cognizable case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. If the provisions of this sub-section are given full effect, we apprehend that it may not be competent to the accused to contend that by reason of the irregularity committed by Sub-Inspector Mistry the charge-sheet submitted by him to the learned Magistrate should not be regarded as a report in writing within the meaning of Section 190(1)(b). Besides, Section 529 of the Criminal Procedure Code expressly provides that no proceedings taken by a Magistrate could be set aside merely on the ground that he was not empowered by law to take cognisance of an offence under Section 190, Sub-section (1) Clause (a) or Clause (b) if the Magistrate has acted erroneously but in good faith. It would thus appear that the irregularity committed by a police officer in investigating an offence or arresting the offender would not I necessarily vitiate the said proceedings and would not disentitle the Magistrate I from proceeding to try the case brought before him on a report made by the police officer in that behalf. Irregularities of this type if committed by police officers must of course be strongly disapproved; but we are by no means satisfied that however much the Court may disapprove of those irregularities it would be justified in holding that the Magistrate has no jurisdiction to act upon a report of the police officer merely on the ground that the police officer acted without jurisdiction in investigating a cognizable offence. There is no doubt that the report mentioned in Section 190(1)(b) must be a report made after an investigation properly conducted. But, as I have just pointed out, investigation irregularity conducted may not necessarily make the investigating officer's report so defective in law as to oust the jurisdiction of the Magistrate to act upon it under Section 190(1)(b).
10. It is quite true that criminal Courts always disapprove of irregular or highhanded conduct on the part of police officers and naturally enough arrests of alleged offenders illegally made are strongly criticised. But such disapproval however strongly expressed would not justify the conclusion that cases against illegally arrested offenders cannot be tried by Magistrates when charge-sheets in respect of such cases are subsequently forwarded to criminal Courts. Indeed, there is very high authority in support of the proposition that the validity of the trial of an accused person is not affected by any irregularity in his arrest. While dealing with this question in Parbhu v. King-Emperor : (1944)46BOMLR838 , Lord Macmillan cited the observations of Lord Tenterden C.J. in the case of Ex parte Scott (1829) 9 B. & C. 446, where it was said (p. 448):
The question therefore is this, whether if a person charged with a crime is found in this country, it is the duty of the Court to take care that such a party shall be amenable to justice or whether we are to consider the circumstances under which he was brought here.
11. 'I thought', added Lord Macmillan, 'I still continue to think that we cannot enquire into them.' The decision of this Court in Emperor v. Vinayak Damodar Savarkar 13 Bom. L.R. 296 where Scott C.J. took a similar view, has also been mentioned by Lord Macmillan with approval.
12. Let us, however, assume that as a result of the irregularities committed by Sub-Inspector Mistry in investigating the offence without the authority of the Magistrate the charge-sheet submitted by him cannot be regarded as a report within the meaning of Section 190(1)(b). In that case the question which would arise is, whether such a charge-sheet cannot be regarded as a complaint within the meaning of Section 190(1)(a). It has been contended by Mr. Shah for the petitioner that such a report or charge-sheet cannot be regarded as a complaint, and in support of this contention reliance has been placed upon the decision of this Court in Emperor v. Chandri : (1924)26BOMLR1225 . In the said case this Court was dealing with the question as to whether the Presidency Magistrate had jurisdiction to try the case against the accused under Section 3 of the Bombay Prevention of Prostitution Act (Bombay XI of 1923). The accused had been arrested by a police officer who had not been specially authorised in that behalf and who had not received any complaint for an offence under Section 3 of the Act. In other words, the arrest was not justified under the provisions of Section 10(1) of the said Act. It was contended before the learned Magistrate that the arrest having been illegally made and investigation held without authority by the police officer, the learned Magistrate had no jurisdiction to try the case under Section 190. This question was tried by the learned Magistrate as a preliminary point and was answered in favour of the prosecution. The revisional application filed by the petitioner to this Court against the said finding, however, succeeded, this Court having held that the learned Magistrate had no jurisdiction to try the case under Section 190 of the Criminal Procedure Code. The offence with which the Court was concerned in the said case was non-cognizable, and from the report it appears that it had been conceded in arguments that if the arrest was illegal, the chargesheet submitted by the police officer could not be 'a report in writing by a police officer' within the meaning of Section 190(1)(6) The point raised for decision, therefore, was whether the said charge-sheet could not be regarded as a complaint within the meaning Of Section 190(1)(a). This point was answered against the prosecution. Marten J., as he then was, took the view that it was a case of some public importance and observed that he was certainly not inclined to stretch a point and hold that the arrest, though illegally made, did not affect the powers of the Magistrate subsequently to hear the case. He pointed out that the charge-sheet in the case was a 'large brown paper document which is the ordinary document by which cognizable cases are put before the Magistrate by the police', and that it did not purport to be a complaint as defined by Section 4(1)(h) of the Code. Fawcett J. took the same view, and in support of his conclusion pointed out that the charge-sheet was not in the form in which a complaint is ordinarily made and that the Magistrate was not asked to issue process on the complaint, the accused having already been arrested. It has been argued by Mr. Shah on behalf of the petitioner that this authority supports his contention that the learned Magistrate would have no jurisdiction to try the present case since the arrest in this case also has been illegally made and the investigation held without lawful authority. Apart from the fact that in the said case their Lordships were dealing with a non-cognizable offence, it may be pointed out with all due respect that the provisions of Section 156(2) were not referred to in either of the two judgments and no provision of the Code has been cited in support of the conclusion that the illegal arrest of the accused necessarily affects the jurisdiction of the Magistrate subsequently to try the case against him under Section 190. Similarly, the reasoning that the charge-sheet was not a complaint within the meaning of Section 4(1)(h) of the Code because it did not purport to be one and had not in fact been made in the form in which complaints are ordinarily made, does not appear to be strictly justified by the terms of Section 4(1)(h) itself. It is hardly necessary to point out that the Code prescribes no form for a complaint, so that if the document in question substantially satisfies the requirements of Section 4(1)(h), the Magistrate before whom the document is filed would be bound to deal with it as a complaint. It may also be relevant to point out that the significance which the learned Judges obviously attached to the illegality of the arrest of the accused person seems to be inconsistent with Lord Macmillan's view on the point as expressed in Parbhu's case.
13. In this connection it may be pointed out that there are decisions of this Court which support the view that a report made by a police officer in regard to a noncognizable offence can and may be regarded as a complaint within the meaning of Section 190(1)(a) even though the investigation of the offence and the arrest of the offender may have been irregular, illegal or improper. In Emperor v. Shivaswami : AIR1927Bom440 this Court was dealing with proceedings taken against the accused for offences under Sections 385 and 204 of the Indian Penal Code which are non-cognizable. The investigation into the said offences was held to be illegal by the learned Magistrate who had acquitted the accused on the ground that he had no jurisdiction to try the case under Section 190 of the Code. When the matter came to this Court, Fawcett and Patkar JJ. agreed in setting aside the order of acquittal. Patkar J. held that the wording of Section 190 empowered a Magistrate to take cognizance of any offence upon a report in writing of such facts by any police officer and that the said wording was quite general and would include even a non-cognizable offence being taken cognisance of by a Magistrate upon a report in writing by a police officer. He further pointed out that such a report can also be regarded as a complaint within the meaning of Section 4(1)(h) of the Code if it contains an allegation in writing to a Magistrate with a view to his taking action as required by the said section and that a Magistrate can in a proper case treat the police report as a complaint and take cognizance under Section 190(1)(a) of the Code.
14. Fawcett, J., however, adopted a somewhat different reasoning, though he agreed with the final order proposed by Patkar J. According to Fawcett J. the amendment made in the words used in Section 190(1)(b) did not show very clearly that it was intended that the said clause should 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. He was disposed to hold that the full bench decision of this Court in Emperor v. Sada 3 Bom. L.R. 586. still held good notwithstanding the amendment made in 1923. I may mention that it has been conceded by Mr. Shah before us, and we think rightly, that in view of the said amendment a valid report made by a police officer even in regard to a non-cognizable offence would fall under Section 190(1)(b). Fawcett J. agreed with Patkar J. in holding that there is scope for a police-report being treated as a complaint in a proper case, but adhered to his view expressed in Chandri's case that such a report should purport to be a complaint and should be made in the form in which complaints are usually made. Even so, for other reasons, which it is unnecessary to mention, Fawcett J. eventually agreed that the order of acquittal should be set aside and the case against the accused should be tried under Section 190(1)(a).
15. A similar question again arose for decision in Emperor v. Raghunath (1932) 31 Bom. L.R. 901 In this case the Court was dealing with an offence punishable under Section 4 of the Bombay Prevention of Gambling Act which was held to be non-cognizable. The investigation into this offence and the arrest of the accused were illegal and the question which arose for decision was whether the charge-sheet sent up by a police officer can be regarded as a complaint under Section 190(1)(a) notwithstanding the irregularity committed by him in the matter of the arrest of the accused and the investigation of the offence. Beamount C.J. referred to the decision in Emperor v. Shivaswami : AIR1927Bom440 with approval and held that the charge-sheet could be regarded as a complaint. Broomfield J., who agreed with the said conclusion, referred to Chandri's case and pointed out that Fawcett J., who was a party to the decision in the said case, was himself a party to the judgment in Shivaswami's case also. In effect Broomfield J. has suggested that the decision in Chandri's case should be deemed to be justified on the special facts of that case and that it need not be pressed into service in support of the contention that a charge-sheet submitted by a police officer in a non-cognisable case can never be regarded as a complaint merely because the investigation of the offence and the arrest of the offender were illegal. With respect we agree with these observations. We are disposed to hold that though the decision in Chandri's case may probably have been justified by the special facts in that case, the reasoning on which the said decision proceeded does not appear to be supported by any provisions of the Criminal Procedure Code and is besides inconsistent with the decisions of the Privy Council and of this Court to which I have already referred.
16. What has been held with regard to a charge-sheet submitted in a non-cognizable offence where investigation has been made without authority would, we think, apply with equal force to a charge-sheet submitted in regard to a cognizable offence if the investigation into such an offence has been unauthorised. Section 4(1)(h) defines a 'complaint' as meaning the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer. If as a result of the irregularity of the investigation, the charge-sheet submitted by a police-officer is not regarded as a report in writing within the meaning of Section 190(1)(b), it would follow, we think, that it would also not be a report within the meaning of Section 4(1)(h). There should, therefore, be no difficulty in treating such a charge-sheet as a complaint.
17. We, therefore, hold that even if the petitioner had been right in contending that the investigation of the present offence and the arrest of the petitioner are illegal, and that for that reason the present case does not fall under Section 190(1)(b), it would not have followed that the Magistrate would have no jurisdiction to try the case. If the case had not fallen under Section 190(1)(b), we would have held that it falls under Section 190(1)(a). However, as I have already mentioned, we are not satisfied that there has been any irregularity in the investigation of the offence, and we see no reason for holding that the charge-sheet submitted by Sub-Inspector Mistry is not a report within the meaning of Section 190(1)(b). We accordingly affirm the finding of the learned Magistrate that he had jurisdiction to try the case under Section 190(1)(b).
18. The result is that the application fails and the rule is discharged. The record and proceedings should be sent back to the Magistrate for disposal of the case according to law.