1. One Laxmandas appeared before the Police and was by the Police referred to the Magistrate, with the intimation that he should make an application to the Magistrate and that they would then enquire. Laxmandas then made his representation to the Magistrate stating certain circumstances and the City Magistrate, Poona, before whom the said representation was made sent it to the Police with authority to investigate and report.
2. The Sessions Judge who makes the reference states in his grounds of reference that the City Magistrate under the belief that an offence had been committed sent the matter to the Police for enquiry. There is nothing before us to show whether the City Magistrate believed or suspected this. Aninvestigation was made by the Police and certain registered and insured packets produced by Laxmandas were returned to the Magistrate with a report as to the result of their investigation. The City Magistrate then made a further enquiry and examined one Sathe on solemn affirmation and after that examination of Sathe on solemn affirmation the registered insured packets which formed the subject of the enquiry and which were addressed to Sathe c/o Laxmandas were opened. Then it appeared that instead of containing currency notes as sworn to by Sathe they contained blank bits of papers. The City Magistrate then ordered Sathe to be taken before another Magistrate for enquiry whether he had committed an offence of perjury in respect of his having sworn in the statement aforesaid that these packets contained currency notes.
3. The case has been referred to us by the Sessions Judge, Poona, on the ground that the order under Section 476, Criminal Procedure Code was not a legal order. In making the reference the Sessions Judge says: 'Here the learned Magistrate had no complaint before him nor did he examine the complainant -both of which are conditions precedent to the delegation of the enquiry. As the matter was sent without jurisdiction to the Chief Constable the whole enquiry before him would seem to be null and void.'
4. With regard to that we may point out that under Section 155, Clause 2, Criminal Procedure Code, 'no police officer shall investigate a non-cognizable case without the order of a Magistrate of the First or Second Class having power to try such case or commit the same for trial, or of a Presidency Magistrate.' And Section 156, Clause 3, Criminal Procedure Code, provides with regard to cognizable cases that ' any Magistrate empowered under Section 190 may order such an investigation as above mentioned.' It has not been suggested that the City Magistrate is not empowered as contemplated under Section 190, Criminal Procedure Code.
5. Mr. Vidwans in supporting the reference has cited to us the case of Hari Charan Simg v. Queen Empress ILR (1900) 27 Cal. 455 and has contended that that decision is an authority for holding that the City Magistrate could not legally examine Sathe on solemn affirmation when there was no 'case' before the Magistrate and the examination was directed simply to obtain information on which proceedings could be taken : and that the Magistrate, although he might examine him to obtain information, could not legally examine him on oath. In the Calcutta Ruling there is no reference to Section 164, Criminal Procedure Code, which provides that every Magistrate not being a police officer, may record any statement or confession made to him in course of an investigation under Chapter 14 or at any time afterwards, before the commencement of the inquiry or trial. And Clause 2 of that section provides that ' such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case.'
6. In Queen Empress v. Alagu Kone ILR (1892) 16 Mad. 421 it was held that ' A Magistrate acting under Criminal Procedure Code, Section 164, has power to administer an oath and a charge of perjury can be framed with regard to the statements made before him on oath when he is so acting.'
7. In the present case likewise we are concerned with the statements taken by the City Magistrate in a stage of the inquiry which was being conducted under the provisions of the Code of Criminal Procedure.
8. The main ground, however, upon which this reference is made is that, in the view of the Sessions Judge, Sathe, at the time he was examined on solemn affirmation by the City Magistrate, was an accused person : and that as the law provides that an oath should not be administered to an accused person, Sathe was illegally sworn. We have heard Mr. Vidwans on that point and we have examined all the materials before us, and in coming to a decision on that point on the materials before us, we can find no ground for holding that at the stage of the inquiry being made by the City Magistrate, Sathe was an accused person. In consequence of the statements made when the Magistrate was conducting the enquiry aforesaid, and in consequence of what was gathered by the Magistrate after that deposition, Sathe became an accused person. Before that he appears to have been examined by the Magistrate in order to elicit information, but there is nothing to show that he was at that stage an accused person. In saying this we do not wish in any way to prejudice Sathe in the defence he may make as to the charge of perjury brought against him. It will be open to him in his defence at the trial to plead that he was an accused person at the time hewas put on solemn affirmation by the City Magistrate and make use of such contention in support of his defence as he may be advised.
9. We have also given attention to the question whether any process was issued against him, whether any security was taken, whether when before the Magistrate he was treated as an accused person up to the stage when the packets were opened.
10. We accordingly decline to interfere and direct the Record and Proceedings to be returned to the Sessions Judge, Poona.
11. It appears that when the matter was before the Police and the Magistrate, the commission of some offence was suspected. It was apparently not known then, and we do not know now, whether the supposed offence was cognizable or non-cognizable; but in either event the Magistrate had power to order an investigation by the police. If it was a cognizable offence, he had power under Clause 3, Section 156, Criminal Procedure Code, and if it was non-cognizable, he had this power because he had taken cognizance of the offence under Clause (c), Section 190, Criminal Procedure Code, and not upon a complaint. The provision of Chapter XVI, therefore, did not come into operation and the Magistrate was not bound to examine the complainant on oath before sending the matter to the police for enquiry. Our knowledge of the facts is so imperfect that our conclusions must be considered to be subject to any consequences following from a more complete disclosure of the facts.