1. The applicant Mr. Karki complains that; while he Karki was holding an enquiry as Second Class Magistrate at Supa into the cause of death of one Rama, the Collector of Kanara instituted a departmental enquiry into all the circumstances connected with the exhumation of the dead body of Rama under the applicant's order and into the propriety of certain alleged acts of the applicant in connection therewith. The result of the departmental enquiry was that the enquiry by the applicant under Section 176 of the Code of Criminal Procedure was interrupted and put an end to, as the applicant was required to give up that enquiry and be present during the departmental enquiry.
2. The application came up for admission, before my brother Fawcett and me on February 28, 1928, We admitted the application to the extent that we issued a rule to the Collector to show cause why his order should not be modified or set aside, and directed an interim stay of the proceedings instituted under the Collector's order before the Assistant Collector. We further directed that the matter was to be treated as urgent. We held that wo had jurisdiction to entertain the application, and gave our reasons in a short judgment which was as follows :-
3. 'In this case the applicant, who is a Mahalkari and Second Class Magistrate of Supa, North Kanara, applies for revision of an order of the Collector of Kanara directing the Assistant Collector, Karwar Division, to conduct a departmental inquiry into all the circumstancea connected with certain action taken by the applicant as a Second Class Magistrate, Supa. The action taken was that he. was conducting an inquiry into a person's death, which was considered to have occurred under circumstances raising suspicion that some offence had been committed, The Magistrate had the body exhumed and examined witnesses in connection with the matter. The police authorities apparently objected to this, and the Collector's order was the result of this objection, That is, at any rate, what appears from statements made in the application, and they seem to be confirmed by the letter of the Collector of which a copy is before us. Assuming them to be correct, the Second Class Magistrate was prima face exercising powers vested in him by Section 176 read with Section 174, Criminal Procedure Code, and ho far as the action of the Collector might interfere with the proper exercise of these powers, the case may certainly be said to be one where that action can properly be sarutiuised under the inherent powers of this Court to pass orders 'to secure the enda of justice' under Section 561-A, Criminal Procedure Code. Section 176, Criminal Procedure Code, proceeds upon the basis that inquiry into a suspicious death should not depend merely upon the opinion the police may form, but that there should be a further check by enabling a local Magistrate to hold an independent inquiry. Therefore, it may be said that any undue interference with action legitimately taken by a Magistrate under Section 176, Criminal Procedure Code, falls under Section 561-A, Criminal Procedure Code. On the other hand, it seems to us quite clear on the present materials that, so far &% the action of the Collector is merely confined to directing a departmental inquiry by the Assistant Collector, neither the Collector's order nor the Assistant Collector's proceedings can be said to be proceedings of an inferior Criminal Court, which would justify our interference under Sections 435 and 439, Criminal Procedure Code.
4. 'We, therefore, merely in exercise of our powers under Section 561-A, Criminal Procedure Code, allow the application to this extent that a rule should issue to the Collector to show cause why his order should not be modified or set aside and we also direct interim stay of the proceedings before the Assistant Collector.'
5. The matter came up before this Bench during its vacation sitting on May 2, 1928, when we considered a letter dated March 6, 1928, from the Collector and District Magistrate, Kanara, to the Deputy Registrar of this Court showing cause against the rule. In that letter the Collector stated that the District Superintendent of Police, Mr. Robinson, after making a personal investigation on the spot and recording the statements of witnesses, had come to the conclusion that Mr. L.T. Karki had not only been engaged in fabricating a false case regarding the death of Rama Mother Gokle, but that in the course of so doing Mr. Karki had lashed one Gopal twice with a whip in order to compel him against his will to make a false statement, thereby committing an offence punishable with seven years' imprisonment under Section 380, Indian Penal Code; that it was in order that these very grave allegations made by an officer of the District Superintendent of Police's rank should be investigated by an independent officer that the Assistant Collector had been directed to proceed to Supa and hold a departmental enquiry. The letter stated that from information received it appeared that the Assistant Col. lector had completed the taking of evidence in his enquiry before the stay order of the High Court was received or even probably issued, and that the Assistant Collector was presumably then writing his report. The letter further stated that on February 25, 1928, before anything had been heard from the High Court, Mr. L.T. Karki was suspended by the Collector and relieved of. alt his duties as the Assistant Collector had reported that Mr. Karki was defying his authority by refusing to attend the Assistant Collector's Court when ordered to do so. The Collector expressed the opinion that since Mr. Karki as Mahalkari was in revenue charge of the administration of the Supa Mahal, his refusal to obey the orders of hi.') superior officer threatened to paralyse the administration, and his suspension was, therefore, unavoidable. In forwarding the papers to this Court the Collector expressed the opinion that the papers spoke for themselves and he was, therefore, not instructing the Government Pleader to appear.
6. On going through the record and proceedings, we were of opinion that certain questions of general principle needed elucidation, and we were not prepared at that stage to accept the views of the Collector and District Magistrate unless they were supported by proper argument. In the meanwhile Mr. Karki had filed an affidavit making certain allegations against Mr. Vyas, the Assistant Collector, who had conducted the departmental enquiry. We directed the Government Pleader to appear on behalf of the Crown and called for a further report from the Collector and District Magistrate, Kanara, in respect of the allegations made by the applicant in his affidavit. We expressed the opinion that the matter was urgent, and should be dealt with as such. In pursuance of those directions the District Magistrate and Collector of Kanara has sent a further letter to the Registrar of this Court dated May 15, 1928, and has forwarded along with it copy of a letter dated May 12, 1928, from Mr. Vyas to the Collector replying to the allegations made against him by the applicant, copy of an order dated February 18, 1928, made by Mr. Vyas in the departmental proceedings, and copy of a letter dated February 18, 1928, from Mr. Vyas to the Collector.
7. We have now heard Mr. Sbingne, Government Pleader, very fully in support of the action taken by the Collector and District Magistrate. His argument, so far as we have been able to appreciate it, resolves itself into the following heads:-
(1) That proceedings under Section 176 of the Code of Criminal Procedure are not judicial proceedings, and we have no jurisdiction to entertain an application by way of revision or otherwise in respect of such proceedings.
(2) That if we have jurisdiction we should not interfere with the judgment of two local officers of the rank of the District Superintendent of Police and the District Magistrate, both of whom are of opinion that the death of Rama was due to natural causes and there is no need for any further investigation.
(3) If contrary to that opinion we come to the conclusion that the death of Rama was under suspicious circumstances, and there is need for the completion of the enquiry which was started by the applicant, the applicant is not legally competent to continue that enquiry, as he has since been suspended from exercising his functions as a Magistrate.
(4) That if the applicant's suspension is held to be illegal, the Court should not on grounds of expediency order the continuation of the enquiry by him, but should choose some one else for the purpose.
8. I shall deal with the case in the order in which the arguments of the Government Pleader were presented to us.
9. With regard to the first argument, I am of opinion that the judgment delivered by my brother Fawcett and me on February 28, 1928, is binding on this Bench, and in the absence of my brother Fawcett from this Bench it cannot be reopened or revised. As the matter, however, was deemed by us to be of importance, we have heard full arguments on the point with a view that if we differed from the judgment of my brother Fawcett and myself on this point, we would be prepared to submit a question raising the point of law to a Full Bench for disposal. After a careful consideration of the arguments that have been addressed to us we have come to the conclusion that there is no substance in the Government Pleader's contention and the view expressed in the previous judgment, viz., that we have jurisdiction to entertain the application is correct.
10. I shall deal very briefly with the arguments under this head.
11. Mr. Shingne has argued that, Section 176 of the Code of Criminal Procedure falls under part V. Chapter XIV, of the Code'. Part V is headed 'Information to the Police and their powers to investigate.' Section 176 is inserted at the and of the Chapter. The section, he contends, is only directory, and does not end in a final order. He has relied upon In the matter of Troylokhanath Biswas and Ram Churn Biswas I.L.R (1878) Cal. 742 where the High Court of Calcutta held that a report embodying the result of an inquiry by a Magistrate under what now is Section 176 could not be considered as part of a judicial proceeding. The reason for the ruling is given by Mark by J. in his judgment as follows (p. 752) :-
The language of the section does not require a report, nor does it require a finding : and it seems to mo that if we were to say that, under this section, the Magistrate who holds an enquiry is bound to make a report or some to a finding, we should be making an unjustifiable addition to the language of the legislature.
12. In our opinion the case being confined to the question whether the report was part of a judicial proceeding cannot be considered to be an authority for the proposition that the enquiry of which the report is no part under Section 176 is riot a judicial proceeding. Mr. Shingne has also relied on the Full Bench case of Emperor v. Purshottam Ishwar I.L.R (1920) Bom. 834 : 3 Bom. L.R. 1. There the Full Bench held that a statement recorded by a Magistrate in the course of a police investigation under Section 164 of the Criminal Procedure Code is not evidence in a stage of a judicial proceeding within the meaning of Explanation 2 to Section 193 of the Indian Penal Code. Mr. Shingne has argued that because Sections 164 and 176 fall under the same chapter of the Criminal Procedure Code, audit has been held that a statement recorded by a Magistrate in the course of a police investigation under Section 164 is not part of a judicial proceeding, we should extend the principle to Section 176. The enquiry under Section 176 is a magisterial enquiry and not a police investigation. The ratio decidendi in the Full Bench case, in our opinion, turned on the statement having been recorded by the Magistrate in the course of a police investigation and would not apply to the case of a magisterial enquiry under Section 176.
13. The language of Section 176, in our opinion, makes it clear that the proceeding contemplated by the section is judicial. The Magistrate is empowered to hold an enquiry into the cause of death either instead of, or in addition to, the investigation held by the police-officer, and if he does so, is invested with all the powers in conducting it which he would have in holding an enquiry into an offence. In our opinion this would bring the proceeding within the meaning of an 'inquiry' as defined by Section 4(1)(k) and of a 'judicial proceeding' as defined by Section 4(1)(m), Criminal Procedure Code, where a judicial proceeding is said to include any proceeding in the course of which evidence is or may be legally taken on oath. Clause (3) of Section 435 of the Criminal Procedure Code, Act V of of 1898, expressly excluded from the revisional powers of the High Court under that section proceedings under Section 176. By so doing the Legislature seems to have recognized the 1928 fact that those proceedings being judicial would fall within the scope of Section 435 unless they were expressly excluded. Clause (3) of Section 435 has since baen repealed by Act XVIII of 1923, Section 116. There is nothing now, in my opinion, to debar this Court from exercising its jurisdiction under Sections 435 and 489 of the Criminal Procedure Code-in matters falling under Section 176. Apart from its revisional powers under Sections 435 and 439 this Court under Section 561-A of the Code of Criminal Procedure undoubtedly possesses inherent power to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Nothing has been pointed out to us in argument which would make us hold that we have no jurisdiction to entertain this matter to secure the ends of justice.
14. Having come to the conclusion that we have jurisdiction to revise the proceedings, the point we have next to consider is, whether from the record we are satisfied that the death of Rama was due to suspicious circumstances, and that there is need for further enquiry under Section 176. The deceased Rama was residing in the house of three brothers, Barkelo, Suryoba and Yeshwant, in the hamlet of Karanjoda. He had been their domestic servant for a few months prior to his death. Rama is said to have died during the night of. December 2 or in the early morning of December 3, 1927. On December 6, 1927, the Police Patil made a report to the police station that the death of Rama was a suspicious one. Upon that information it appears from a letter written by the District Superintendent of Police to the Collector of Kanara that the Sub-Inspector of Police instituted an enquiry in the course of which he took down eighteen statements. But he made no report, as required by Section 174 of the Criminal Procedure Code, to the applicant, who was at the time the nearest Magistrate empowered to hold inquests under Section 176 read with Section 174. On December 7, 1921, the Sub-Inspector wrote to the applicant inter alia, mentioning the fact of Kama's death and stating that Barkelo (one of the three brothers) had alleged that he had stated the fact of Rama's death to the applicant and that the applicant had told him that he should, according to practice, collect the Patil and Panch, make a panchuama and dispose of the corpse. It was found in the investigation according to this letter that on December 5, 1927, Monday, the Patil and Ugrani and Panch had. together made a panohnama and that the corpse had been buried. The Sub-Inspector, therefore, enquired whether it was true that Barkclo had asked the applicant among other things as to how the corpse was to be disposed of. The applicant replied to this letter on December 10, 1927. It appears that he received the letter late as he was then on tour. The reply was endorsed on the letter and despatched. The reply was as follows:-
From your above writing it becomes quite clear that the deceased died in a natural ordinary manner owing to illness, and that it does not appear that he died on account of an accident or owing to any other cause, 'This being so we do not know what investigation has been carried on by you in that matter. Please therefore inform me of it under Section 174 of the Code of Criminal Procedure. When your investigation was going or; a report in respect of it should have been submitted by you according to the usual practice. But it is not received. We their fore hope that you will send a communication in writing as to what proceedings have been held in respect of it.
15. The Sub-Inspector replied to this letter officially on December 13, 1927, inter alia, as follows :-
From the report made by the Patil, on making; inquiry of the Ugrani who brought the said report, therein according to Patil's report it did not appear to me necessary that investigation under Section 174 of the Code of Criminal Procedure should be carried on. As it is mentioned that you have been informed of the facts relating to this death (by them) by coming to you first, you were written to give information as to what particulars they stated to you. Be this noted.
16. To this the applicant replied by an official letter dated December 16, 1927, as follows:-
In your memo it is mentioned that the said person had died without an heir, and that in respect of it according to law, Patil of the said village collected the Panch, got a paachnama made and had the corpse buried. In such a matter the Patil's report should have come to us only, and. there was no reason at all for its being sent to you or for your carrying on investigation in respect of it. That being so, you should inform us for what purpose your investigation was carried on; besides this according to the memo written today to you, we hope you will please send at once without fail the papers relating to your investigation for our perusal.
17. On December 16, 1927, the Police Sub-Inspector replied stating that he had already submitted the papers of his investigation to the District Superintendent of Police, to whom application may be made. On December 16, 1927, the applicant wrote to Mr. Robinson, District Superintendent of Police, requesting him to send him the papers of the police investigation in the matter.
18. In the meanwhile: on December 15, 1927, the applicant had received a report from the Patil intimating that Kama's death was suspicious, and that he had already made a report in the matter to the police as required by Section 11 of the Village Police Act. The applicant, thereupon, recorded the Patil's statement on the same day. On December 16, 1927, the applicant received a report from the Circle Inspector that in the birth and death register of Karanjoda village the entry relating to the death of the deceased Rama was found by him to be incomplete. The date of his death, and the cause of death had not been filled in in their respective columns. On enquiry the Patil had told him that these particulars were not known, and that ho had made a report in that connection to the police On December 17, the applicant wrote to the Sub-Assistant Surgeon to come over the next day to the village of Karanjoda to hold a post-mortem examination on the corpse of Rama, which would then be exhumed. On December 18, 1927, the applicant had Rama's corpse exhumed in the presence of the Panch and the Medical Officer and had it handed over to the medical officer, the Sub-Assistant Surgeon, for post-mortem examination. The applicant then started his investigation under Section 176 of the Criminal Procedure Code. He took down certain statements on December 18 and 19. The medical officer made his post-mortem examination on December 18, as the result of which he inter alia mentioned in the notes of his examination that the cloth in which the body was wrapped up had no stain of blood which could be noticed, and a piece of cloth on the corpse was soiled with foecal matter. He further stated that the nose of the corpse seemed to have been cut off. The nasal bones were fractured, and fractured pieces of the nasal bones were not found. He mentioned also that the upper lip was missing. The medical officer expressed the opinion that the death might have been caused by syncope brought on by hemorrhage resulting from a ruptured spleen. The result of the postmortem examination makes it clear that the cause of death being a ruptured spleen may have been due to a blow by some human agency which might bring the case under one of murder. The post-mortem examination also clearly showed that in all probability some person had cut off the nose of the deceased before his death under circumstances which would make it an offence under the Indian Penal Code. The applicant had a discretion under Section 176 to institute an inquiry and was empowered under that section to have the dead body exhumed, Having regard to the information he had received and the conduct of the Sub-Inspector in not making a report to him under Section 174 of the Criminal Procedure Code, the applicant was justified, in our opinion, in taking up the enquiry himself under Section 176. The result of the enquiry, as far as it proceeded, seems amply to have justified the action taken by the applicant. In the examination of several witnesses in the course of the enquiry before him the applicant elicited certain facts which did not seem materially to weaken the hypothesis of the cause of death being murder and of an offence having been committed in respect of the cutting off of the deceased's nose but on the contrary seem to some extent to have supported such a hypothesis. A result of that kind ensuing from the enquiry would necessarily be inconvenient to the Sub-Inspector who had, prior to the enquiry, made an investigation, but had failed to comply with the requirements of Section 174 on the pretext that the investigation he had conducted was not under that section. The result would also be inconvenient to the District Superintendent of Police as the sequel would show that he had withheld from the applicant the papers of the police investigation under what must be regarded as an investigation under Section 174 in spite of repeated demands by the applicant and had thus seriously delayed and prejudiced the course of the investigation by the applicant under Section 176.
19. Mr. Shingne suggests that the investigation conducted by the Sub-Inspector may be regarded as falling under Section 161 or 162. We fail to see how either of these sections could apply in a ease to which Section 174 seems to be made directly applicable. The admissions made by the various witnesses in the inquiry before the applicant are admissions made by those who are either themselves the, suspects or the relations or friends of the suspects and can be presumed to be admissions either against their own interest or against the interest of those who are related to them or are their friends, Suspicion in such a case would naturally rest upon the persons in whose house the deceased had died, and their relations and neighbours. While the investigation by the applicant was in progress it appears that the Police Sub-Inspector with some constables went up to the applicant's camp on December 19, without an ostensible cause for his having done so. On December 20, 1927, the applicant wrote to the Sub-Inspector inquiring the reason why he had come to the applicant's camp with constables while the magisterial enquiry under Section 176 was in. progress. To this letter the Sub-Inspector replied by his letter dated December 24, 1927, bluntly referring the applicant to the District Superintendent of Police for a reply in the matter. In our opinion the conduct of the Sub-Inspector in proceeding under these circumstances to the camp of the applicant while the inquiry was in progress was improper, whether it was done of his own accord or was inspired by the District Superintendent of Police, His presence on such an occasion under such circumstances naturally leads to an inference that he was there to hamper and prejudice the inquiry if not to tamper with the witnesses.
20. On December 20, 1927, the applicant wrote an official letter to the Sub-Divisional Magistrate complaining of the conduct of the police in not giving him intimation at the proper time of the Suspicious death of Rama, and stating that he had instituted an enquiry. On the game day he wrote again to the District Superintendent of Police setting out what had happened between him and the Sub-Inspector with regard to the death of llama, and stating that he had commenced his enquiry and in the course of that enquiry the papers of the Sub-Inspector's investigation into the matter were found to be quite necessary. He, therefore, again requested the District Superintendent of Police to send him those papers at an early date. These papers, in our opinion, were undoubtedly of great importance at the stage the applicant's enquiry had reached. The eighteen statements taken down by the Sub-Inspector wore at an early date, and their perusal would indicate to the Magistrate what persons were likely to throw light on the question as to who were the probable offenders in connection with the death and the nose cutting of the deceased Rama. The District Superintendent of Police, however, took no notice of this reminder. On January 11, 1928, the applicant sent a further reminder in the matter to the District Superintendent of Police in which he stated, inter alia :-
I have the honour to inform you that the completion of the enquiry held by me in the matter is being unnecessarily delayed for want of the said papers. In the ends of justice it is expedient to complete the enquiry without any further delay. I have therefore to request you to kindly send in the papers at an early date.
This reminder was sent to the District Superintendent of Police through the District Magistrate, Kanara. Before this letter could have reached him the District Superintendent of Police, on January 9, 1928, sent a reply to the applicant's letter-dated December 20, 1927. The reply was :-
The undersigned regrets he is unable to send the papers called for as they are required for reference by the undersigned.
21. On January 12, 1928, the applicant, on receipt of this reply, wrote to the District Superintendent of Police inter alia as follows:-
I do not think that is such ministerial enquiries papers of investigation by the Police can on any account be withheld from a Magistrate when they are specially called for by him. I have, therefore, to request you to kindly send in same now at least.
22. On the same day the applicant sent a letter to the Sub-Divisional Magistrate informing him of the action he had taken in the matter of the production of these papers by the District Superintendent of Police. The District Superintendent of Police took no further notice of the applicant's demand. In our opinion, while an important enquiry of this nature was in progress and the papers were demanded by the Magistrate, the District Superintendent of Police ought promptly to have complied with the demand. From a consideration of the magisterial enquiry as far as it had proceeded, we are satisfied that a prima facie case is made out that the death of Kama was under suspicious circumstances and was probably due to murder, and that some, time before his death a criminal offence had been committed in respect of the cutting off of his nose.
23. As against this view we are told that both the District Superintendent of Police and the District Magistrate are satisfied that the death of Kama was due to natural causes, and there is no need for further enquiry. So far as the Collector and District Magistrate is concerned, the record makes it clear that he has not applied his mind to the materials elicited in the enquiry and has acted entirely on the representation made to him by the District Superintendent of Police. If is clear from his several reports to this Court that he is not yet aware of that part of the medical officer's notes of the post-mortem examination which record his opinion regarding Rama's death and the injury to his nose. Whatever opinion he may have formed in the matter may, therefore, be disregarded.
24. The letter of the District Superintendent of Police to the District Magistrate is an official letter and is not marked 'confidential.' It is dated January 39, 1928. A preliminary remark I may make about this letter in that in the events that had happened it would not be safe to regard it as containing an unbiassed account of what the District Superintendent of Police had learnt as the result of his inquiry into the accusations made against the applicant, The inquiry was held by the District Superintendent of Police behind the applicant's back and without his direct knowledge. The District Superintendent of Police must have known at the time that the applicant had already complained to the Assistant Collector and Sub-Divisional Magistrate about the conduct of the District Superintendent of Police in withholding from him the papers of the police investigation into the death of Rama though frequently demanded, The District Superintendent of Police at the date of his letter must also have been aware that the result of the applicant's investigation, as far as it had proceeded, justified the inference that Rama had been murdered and his nose cut off. Under these circumstances the District Superintendent of Police would have to explain why he had refused to hand over the papers to the applicant, It would be to the interest of tho District Superintendent of Police to show that the statements recorded by the applicant were false and fabricated. The letter, in my opinion, cannot be regarded as coming from an altogether disinterested source. The letter states :-
I have the honour to bring to your notice for such action as you may deem necessary the conduct of Me L.T. Karki, Mahalkari and Magistrate II Class, Supa, who, it appears, from the facts within my knowledge as a. result of care-ful personal enquiries made at Supa, has not only behaved in a manner generally prejudicial to the good order and peace of: this Petha, but actually committed an offence under Section 350, Indian Penal Code, and also under Section 341 or 318, Indian Penal Code.
25. It is not easy for us to classify this letter. Mr. Shingne contends that it falls under Section 157 of the Code, of Criminal Procedure, and must be deemed to be a report of a cognizable offence sent by a police-officer to a Magistrate empowered to take cognizance of such offence on a police report. The offence under Section 830, of which the applicant is alleged to be guilty, is a cognizable offence, and the District Superintendent of Police would be entitled to proceed under Section 157 in respect of such offence. The section requires that if from information received or otherwise an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person to investigate the facts and circumstances and if necessary to take measures for the discovery and arrest of the offender. The investigation in this case seems to have preceded the sending of the report to the Magistrate. The report no doubt sets out in detail the allegations which would bring the case against the applicant prima facie within the purview of Section 330 of the Indian Penal Code. But the gist of the report as a whole seems to us to be a condemnation of the magisterial investigation conducted by the applicant, and is intended to show the utter falsity of the evidence obtained thereby. The language of the report too appears to us to be intemperate and disrespectful in relation to the applicant's judicial acts. In the Report of the Indian Police Commission 1902-1903 in para. 127 the Commissioners laid down a wholesome rule of conduct for the observance of police-officers and of District Magistrates in their relations with subordinate Magistrates. In para. 127 they state:-
The Police should be taught to treat all Courts with due respect. They should not be permitted to write intemperate notes or reports on cases. They must bring to the notice of the District Magistrate oases in which there has been or is likely to be a failure of justice : but they should be compelled to do be in a temperate and respectful manner. If in regard to any case the Magistrate thinks it necessary to interfere, he should proceed in open Court in the formal manner prescribed by the Criminal Procedure Code. If he thinks it enough to merely point out any comparatively unimportant mistake to the Subordinate Magistrate he should do so in a courteous memorandum or in a personal interview after perusal of the records. He should also show himself as ready to give praise for good work as to notice mistakes or failure. Nothing is more important than to preserve the importance of the Magistracy while aiming at their improvement and to prevent their having any ground for believing that their work will be condemned on any exparte statement by the Police.
26. Both the District Superintendent of Police and, as will hereafter appear, the District Magistrate seem to have acted in total disregard of the above rules laid down by the Commissioners. The report of the District Superintendent of Police suffers from a serious omission from it of the opinion of the medical officer regarding the cause of Rama's death and of the loss of his nose. That the District Superintendent of Police was aware of the notes of the post-mortem examination appears from his letter which set out and relies upon the part of the post-mortem examination notes which seems to go against the theory of there having been blood oozing out from the nose and lip of the deceased sometime before his death, as deposed to by some of the witnesses before the applicant. We cannot understand why in an important document of this description on which the District Superintendent of Police wanted the District Magistrate to rely and to take action he should have omitted to mention two such important points which are to be found in the notes of the post mortem examination unless his object was to mislead the District Magistrate on those points. The report seems also to suffer from the defect that the District Superintendent of Police appears to be under the impression that it was the duty of the Second Class Magistrate to co-operate with the Sub-Inspector by answering the question he had put to him in the early part of the correspondence and that it was not the duty of the Sub-Inspector and later of himself to co-operate with the Second Class Magistrate by making a report and handing up to him the papers of the Sub-Inspector's investigation when they were demanded. Some of the statements made in the report seem to be inaccurate. The District Superintendent of Police states that on the occasion of the death of Kama a pauchnama was drawn up and they (meaning the Panchas) agreed there was no suspicion in the death, What is mentioned here as a panchnama is not what is ordinarily understood by that name, but purports to be a statement made by one Yeshwant. It is signed neither by Yeshwant nor by the police patel. It is nowhere stated in the panchnama that the panchas were invited to see the dead body or had done so or had given an opinion that no suspicion attached to the death. The report further states that the Police Sub-Inspector had recorded eighteen statements and had found that the death was a natural one. Under the Criminal Procedure Code it is not the province of a police-officer to sift evidence and come to a conclusion in a case of death which appeared to be suspicious. If the case was not dealt with as suspicious we do not understand why the Sub-Inspector should have taken down eighteen statements in respect of it. That he did so leads to a legitimate inference that when he received the information of the death being suspicious, he acted on that information, believed it to be true and held an enquiry accordingly. That being so, the case would seem to fall under Section 174, We see no justification for the police-officers concerned having refused to make a report and send up the result of their investigation to the proper judicial officer, the applicant, more particularly when he repeatedly called upon them to do so. As was pointed out in our earlier judgment Section 176, Criminal Procedure Code, proceeds upon the basis that enquiry into a suspicious death should not depend merely upon the opinion the police may form, but that there should be a further chock by enabling a local Magistrate to hold an independent enquiry.
27. In para 6 of his report the District Superintendent of Police mentioned that he had taken down the statements of eight persons who had accused the applicant in the course of his magisterial enquiry of having lashed one of them with a view to coercing him into giving false evidence, had tutored some to give false evidence, and had coerced others by browbeating, by threats and by putting leading questions into giving false evidence.
28. The District Superintendent of Police does not consider the possibility of these statements made to him being false or exaggerated, it being to the interest of these witnesses or their friends and relations to withdraw from or minimise the damaging statements already made by some of them before the applicant. He does not also consider the possibility of the offended Sub-Inspector of Police or his partisans manufacturing this class of evidence with a view to have their revenge on the applicant.
29. The District Superintendent of Police arrived at Supa on January 15. On that occasion one Gopal was produced before him with a medical certificate showing that there were two small marks one on each other about one inch long and 1/2 inch on the back of and in the middle of the right thigh. The District Superintendent of Police examined Gopal and found two parallel scars on each leg several inches in length. While mentioning this in the report the District Superintendent of Police has omitted to mention that the certificate wag dated January 14, 1928, and the injury caused to Gopal would be not later than December 28, when the witnesses were last examined by the applicant. The District Superintendent of Police had Gopal examined by the medical officer on the 15th. The medical officer issued a new certificate on that date and destroyed the old one. From that circumstance the District Superintendent of Police suspects that the medical officer is doing his utmost to help the applicant.
30. So far as the charges under Section 330 are concerned the applicant by his counsel has challenged the District Superintendent of Police or any one else to prosecute him under that section. That would appear to be a proper thing to do, if there is reasonable ground to believe that the applicant is guilty of such an offence, In case the applicant has committed the offence, and the information gathered by the police is to be treated as reliable, it would be but fair and proper for everybody concerned that there should be a public trial and the offender, if his offence is proved, is punished. If after a judicial trial the charge is held to be false and frivolous the applicant will have a remedy against those on whoss information the prosecution will be launched. So far as we are concerned on the present materials, we do not find the report of the District Superintendent of Police sufficiently reliable for us to hold that the statements recorded by the applicant in his magisterial inquiry are false and fabricated or that there is no need for a further enquiry under Section 176.
31. This brings us to the question whether the District Magistrate acted properly on receipt of the report from the District Superintendent of Police virtually to stop the enquiry under Section 176' and to institute a departmental enquiry into the conduct of the applicant. The letter of the District Superintendent of Police was addressed to the District Magistrate. Mr. Baskerville, who combines the functions of Collector and District Magistrate, acted in the matter not as District Magistrate but as Collector of Kanara. As District Magistrate he had no power to end the enquiry or to interfere with it beyond calling for a report and the papers from the Second Class Magistrate under the provisions of Section 435, Criminal Procedure Code. If he was satisfied on perusal of those papers that there was-an illegality or an irregularity in the proceedings, he could have reported to this Court under Section 438, and this Court would have then passed such orders as it thought fit. Instead of following that course Mr. Baskerville, in his capacity of Collector, purported to interfere with the judicial enquiry and virtually put an end to it. Such an action, in our opinion, was both illegal and improper, An executive officer is not entitled to interfere with the course of a judicial proceeding in the manner purported to be done by the Collector. We were justified, therefore, in issuing an interim stay of the proceedings under the Collector's order when this application was admitted by us on February 28, 1928.
32. The further question to be examined is whether the applicant's suspension as a Magistrate is a legal one and whether he has been divested of his magisterial functions. As stated in his letter to the Registrar of this Court, the Collector purported, by his order dated February 25, 1928, to suspend the applicant and relieve him of all his duties. By being relieved of all his duties we understand that he has been suspended by the Collector not only as Mahalkari, but also as Second Class Magistrate. We do not propose to express an opinion with regard to the legality of this suspension so far as it relates to the applicant as Mahalkari. Under the Bombay Land Revenue Code it appears that the power of suspension is given to the Collector in respect of the office of Mahalkari and he has to comply with certain conditions, e. g., give written reasons for his order of suspension, With regard to the of a Subordinate Magistrate, the power of appointment is vested in the Local Government under Section 12 of the Criminal Procedure Code. Under Section 26 of the Code of Criminal Procedure such Magistrates may be suspended or removed from office by the Local Government only. The Collector, therefore, would have no power to suspend the applicant in his capacity of a Second Class Magistrate. It is contended by Mr. Shingne that the applicant holds the office of Second Class Magistrate in virtue of his office of Mahalkari, and if he is suspended as Mahalkari, the suspension amounts to a suspension from all functions including those of a Magistrate. He further contends that in any event Government must be deemed to have ratified the act of the Collector by appointing a successor to the applicant as Second Class Magistrate. That they have done by a Notification dated April 26, 1928, in the Bombay Government Gazette.
33. Under Section 39 of the Code of Criminal Procedure the Local Government may by order empower persons specially by name or in virtue of their office. By Government Notification No. 2837 dated April 27, 1899 (Part I, p. 522), Bombay Government Gazette, Government notified that:-
In the Districts of the Presidency of Bombay excluding Sindh, all persona now or hereafter permanently or temporarily holding the office of Matnlatdar or Mahalkari as defined in the Land Revenue Code, 1879, or of First or Head Karkun... and not invested with higher magisterial powers are hereby appointed under 3, 12 of the Code of Criminal Procedure to be Magistrates of the Third Class in the Districts to which they may be posted for such time as they may hold the aforesaid offices and subject be any order for the withdrawal of the powers hereby conferred that may be issued in the case of any such officer under Section 41 of the Code of Criminal Procedure 1898.
34. By a Government Resolution doted 1907 the applicant, who was then the Acting Head Karkun, Ankola, was described as holding Third Class Magisterial powers in virtue of the Notification dated 1899, and was invested by name with certain additional powers including the power to hold inquests under Section 176. In 1917 by Notification No. 7379 dated November 21, 1917, the applicant who was then an acting Mahalkari was appointed by name as Second Class Magistrate in the following terms :-
Mr. Laxminarayan Timmanbhab Karki, Acting Mahalkari of Supa and Magistrate of the Third Class in the District of Kanara, is appointed under Section 12 of the Code of Criminal Procedure, 1888, to be a Magistrate of the Second Class in that District.
35. The effect of the two Notifications of 1907 and 1917, in our opinion, is that Government have empowered and later appointed the applicant a Second Class Magistrate not by virtue of his executive or revenue office but by name and designation, It was not competent to the Collector, in our opinion, to suspend the applicant from his office of Magistrate and the suspension of the applicant as Mahalkari does not, in our opinion, amount to suspension as a Magistrate of the Second Class.
36. In appointing the applicant's successor, Government have nowhere stated that they have suspended the applicant from the exercise of his magisterial functions, In this matter we are governed by a decision of our Court. In Queen-Empress v. Rama (1887) C C. 322 where West and Birdwood JJ, held that a Mamlatdar who was invested by name with second class magisterial powers in a District had retained those powers although he had ceased to be a Mamlatdar. Mr. Shingne has contended that this decision is no longer operative in view of the Notification dated 1&99, We are of opinion that the Notification of 1899 does not affect the case before us as the appointment of the applicant as Second Glass Magistrate is by name and not by virtue of the executive office of Mahalkari he holds. The applicant, in our opinion, continues to be a Second Glass Magistrate until he is validly suspended or dismissed.
37. The applicant being still a Second Glass Magistrate capable of exercising the function required under Section 176, is there anything proved against him which would make us take away the inquiry from his hands and entrust it to somebody else? We are not concerned with the rights and wrongs of the departmental enquiry before the Assistant Collector, and the rights and wrongs of the order of suspension by the Collector of the applicant as Mahalkari. The applicant clearly has a remedy in respect of any wrong done to him under that enquiry or by the order of suspension and it is not necessary for us to express an opinion on those points, The enquiry from our point of view has elicited nothing reliable against the applicant which would make us consider it undesirable for him as a Magistrate to be entrusted with the enquiry under Section 176.
38. The disobedience to the order of the Assistant Collector for which he has been suspended is not, under the circumstances, in our opinion, such a disciplinary offence as would incline us to take away the enquiry under Section 176 from the applicant's hands. In his letter dated February 18, 1928, to the Collector, Mr. Vyas insinuated that the excuse the applicant had brought forward for asking for an adjournment on account of the Shradh or anniversary ceremony of his mother was untrue. That position is not persisted in by Mr. Vyas in his present explanation. If Mr. Vyas thought that the statement made by the applicant was untrue he could before making the insinuation have ascertained whether it was so, as the applicant's residence adjoined the Cutcherry where Mr. Vyas was holding his enquiry. The insinuation appears to us to be without any foundation. If the applicant had to perform the Shradh of his mother we cannot regard his application for a short adjournment of the enquiry to be an unreasonable one or Mr. Vyas' refusal to grant it as reasonable, more particularly as the applicant had already given intimation on the previous day that he would require an adjournment the nest day for performing the ceremony, The case was specially fixed on that account for an early hour in the morning, and had lasted for over four hours when the adjournment was asked for. We do not agree with Mr. Vyas' statement in his order dated February 18, 1928, that the applicant wished to enjoy the rest of that day after 1-15 p. m. as more or less a holiday on account of his mother's anniversary. So far as we are aware the Shradh ceremony is a solemn rite of the Hindu religion which every KARKI dutiful eon is expected to perform on the anniversary of his parent's death. We also do not agree with Mr. Vyas' statement that the convenience of the applicant in this matter stood on the same footing as the convenience of each one of the number of witnesses who would be delayed if the adjournment were granted. The applicant was in the position of an accused person, and his reasonable convenience in the matter would be more important to consider than that of those who were accusing him of having committed an offence. Mr. Vyas could easily have avoided the inconvenience to the witnesses by having called them on the previous days when the enquiry was taken up with the examination first of the Sub-Inspector of Police, then of the accused, and of the two Shanbhogs who were interposed. At the most as the applicant is said to have left the departmental enquiry fully understanding that he did so at his own risk, the enquiry could have proceeded in his absence, as it did, and if it was not possible for the witnesses who were examined in his absence to be recalled on a future date for cross-examination, the enquiring officer could have refused to issue an order for their recall. Mr. Vyas seems to have resented very much what he regarded as a wanton disobedience on the part of the applicant of his order. We ourselves would not have taken so serious a view of the applicant's disobedience. A new point is taken in Mr. Vyas' explanation with regard to the conduct of the applicant in the course of the departmental enquiry. He says that the applicant browbeat him and intentionally prolonged the departmental enquiry. The allegation of browbeating is somewhat of a general and vague nature, and is not borne out by any note taken by Mr. Vyas during the proceedings before him. No complaint on that account was made by Mr. Vyas to the Collector and District Magistrate in his letter of February 18. The letter of the applicant addressed to Mr. Vyas and handed over to him at 2 p. m. on February 18 is couched in respectful terms. Mr. Vyas is now possibly attaching too much importance to some small incident which may have occurred to which at the time he did not attach sufficient importance to mention it either in the record of his proceedings or in his letter of complaint to the Collector, Whatever small discourtesy the applicant may have shown to Mr. Vyas in the course of the departmental enquiry must, in our opinion, have been unintentional on his part and done in the heat of his personally conducting his own case against what must have appeared to him to be heavy odds owing to the open hostility o( the police to him and the apparent disposition of his superior officers to side with the police in the matter. The applicant, in our opinion, had just cause for showing some excitment at 2 p. m. on February 18, when his request for an adjournment was refused and he was peremptorily required to give up his religious ceremony and be present at the enquiry.
39. I do not express any opinion whether the above facts would or would not justify the applicant's suspension as a Mahalkari. I have considered the facts from the point of view whether the cause for which the applicant has been suspended as Mahalkari is sufficient, in our opinion, to induce us to take away the enquiry under Section 176 from his hands. We are of opinion that it is not.
40. The applicant has shown zeal in the matter of the enquiry under Section 176, and in our opinion has acted with great courage in continuing that enquiry in the face of the improper opposition he encountered from the Sub-Inspector of Police and later the District Superintendent of Police. The prestige of the law has suffered by the abrupt termination of a proceeding the applicant was conducting in the due course of his magisterial office. A way to vindicate the administration of justice and restore public confidence would be to rehabilitate the applicant and ask him to complete his enquiry, The opposition of the local police authorities could be overcome by means of au injunction against them. We are, however, concerned here primarily not with the vindication of law and its administration but with making the best of a situation as we find it now exists. There is need for immediate enquiry as the delay which has already taken place has greatly prejudiced it. Owing to the unfortunate turn events have taken in this District by the opposition of the local police to this enquiry, the situation, in our opinion, calls for the strong hand of the District Magistrate who as Collector can be expected to control the police officers of his District and inspire confidence into those who might make their statements before him in the course of the enquiry. Without meaning to cast any slur on the applicant we are of opinion that in the events that have happened, if we were to entrust him with the completion of the enquiry, we might not fully achieve the object we have primarily in view, which is the speedy detection of the probable offenders and their punishment according to law, We direct, therefore, that the District Magistrate may be requested as far as possible himself to complete this enquiry under Section 176 road with Section 174, take all possible steps to ascertain who the probable offenders in respect of Rama's death and nose cutting may be, and bring as far as possible such offenders to justice.
41. The interim stay we had granted will stand dissolved.
42. This application is made by Mr. L.T. Karki, Mahalkari and Second Class Magistrate of Supa, North Kanara, for revision of the order of the Collector of Kanara directing the Assistant Collector of Karwar Division to conduct a departmental enquiry into all the circumstances connected with certain action taken by the applicant as the Second Class Magistrate of Supa.
43. The Second Class Magistrate was conducting an inquiry into the death of one Rama mother Gokle, a Devli by caste, residing at the house belonging to three brothers, Barkelo, Yeshwant and Suryoba, in the village of Karanjoda. Kama died on December 2, 1927. On December 5, the Police Patil m said to have gone to the house and made a panchnama that it was a natural death, The pauehnama was not signed by the Police Patil, but ho took it to the Shanbhog or village accountant, Kano by name. The Shanbhog, after questioning certain persons, finding that the panchnama did not correctly state the facts, drafted a, report that the death was suspicious, This report was signed by the Police Patil and sent to the tub-Inspector of Police, Mr. Mane. The Sub-Inspector, however, came to the conclusion that there was nothing suspicious about the death, On December 15 the Mahalkari and Second CIush Magistrate received an anonymous petition that the death of Rama was not due to natural causes and on the same date he received a report from the Police Patil to the same effect. The Second Class Magistrate, therefore, decided to make an inquiry under Section 176 of the Criminal Procedure Code, and requested the Sub Assistant Surgeon of Supa to come to the village where he was encamped on the 17th, and the body of the deceased Rama was exhumed in the presence of pancbas and the medical officer. The examination of the body showed that the nose and the upper lip of the corpse were missing. The medical officer conducted a post-mortem examination in which he noted that the nose and the upper lip were missing, that the nose seemed to have been cut oil' the nasal bones were Patkar J. fractured, the septum was out off along with the bridge of the nose, that the spleen has been ruptured, and gave his opinion that the death might have been caused by syncope brought on by hiemorrhage resulting from a ruptured spleen, On December 20, the Second Class Magistrate made a report to the Sub-Divisional Magistrate that the death was suspicious and that he was carrying on the investigation. It appears that the Sub-Inspector, who had coma to the conclusion that the death was due to natural causes, made a representation to the District Superintendent of Police, On January 15, the District Superintendent of Police verified the statements of witnesses examined by the Police Sub-Inspector and wrote a letter to the District Magistrate that the inquiry was conducted by the Second Class Magistrate in a high-handed manner. On February 4, the District Magistrate as Collector addressed a confidential letter to the Assistant Collector requesting him to conduct a departmental inquiry into all the circumstances connected with the exhumation, under the orders of Mr. L.T. Karki, Mahalkari and Second Class Magistrate, Supa, of the corpse of Kama mother Gokle, and into the propriety of Mr. Karki'a alleged acts, which Mr. Karki himself must be given opportunities to explain. On February 11, the Assistant Collector called for the papers relating to the inquest and commenced an inquiry. The Assistant Collector, Mr. Vyas, examined the Police Sub-Inspector and the Second Class Magistrate, Mr. Karki, On February 18, he was ordered to cross-examine the principal witness the complainant immediately after his examination. It is alleged on behalf of the petitioner Mr. Karki that the case was taken on the 18th from 9 a. m. to 1-15 p. m. as he was to be relieved in the afternoon for the performance of the religious ceremony of his mother's anniversary. He was ordered to resume the cross-examination at 2 p. m., but he requested the Assistant Collector to resume the cross-examination of the witnesses either on Monday February 20, or at any other convenient time, Mr. Vyas, the Assistant. Collector, refused to adjourn the case, being of opinion that Mr. Karki wished to enjoy the rest of the day after 1-15 p. m. as more or less a holiday on account of his mother's anniversary, and that, the anniversary of his mother's death was a purely private affair and ought not to bear any relationship with the conduct of the inquiry which was a matter of public and official nature. Mr. Karki, however, was unable to comply with the requisition, but at 6 p. m. after doing his other work as Mahalkari, he informed the Assistant Collector that his work was finished, and that if the inquiry was to be resumed, he, would come over if ordered. The Mahalkari was suspended under Section 33 of the Land Revenue Code on February 25, 1928.
44. This application was made by Mr. Karki to the High Court on the ground that the procedure followed by the District Magistrate was illegal and prayed for an interim stay of proceedings. On February 28, 192S, Fawcett and Mirza JJ. held that assuming the statements in the application to be correct, the Second Class Magistrate was prima facie exercising powers vested in him by Section 176 read with Section 174, Criminal Procedure Code, and that so far as the action of the Collector might interfere with the proper exercise of these powers, the case might certainly be said to be one where that action can properly be scrutinised under the inherent powers of the High Court to pass orders 'to secure the ends of justice' under Section 561-A of the Criminal Procedure Code. They further held that Section 176 of the Criminal Procedure Code proceeds upon the basis that inquiry into a suspicious death should not depend merely upon the opinion of the police only, but there should be a further check by enabling a local Magistrate to hold an independent inquiry, and that, therefore, any undue interference with action legitimately taken by a Magistrate under Section 176 of the Criminal Procedure Code would fall under Section 561-A of the Code. The High Court then issued a rule to show cause why the Collector's order should not be modified or set aside and directed interim stay of the proceedings before the Assistant Collector. The District Magistrate, on March 6, 1928, made a report forwarding the report of the District Superintendent of Police dated January 19, 1928, on the strength of which he issued the order to the Assistant Collector, and did not think it necessary to instruct the Government Pleader. It was alleged that the Second Class Magistrate was fabricating a false case regarding the death of Rama mother Gokle and that in doing so had lashed one Gopal twice with a whip in order to compel him to make a false statement and thereby committed an offence under Section 330, Indian Penal Code. The District Magistrate reported that Mr. Karki was suspended and relieved of all his duties on the report of Mr. Vyas, that Mr. Karki was defying his authority and refusing to attend his Court when ordered to do so.
45. When this application came on for hearing on May 2, as there was no appearance on behalf of the Crown, the Government Pleader was directed to appear in the case, and a copy of the affidavit of the applicant dated May 1 was forwarded to the Collector for report with a request to forward any explanation which the Assistant Collector might make with regard to the allegations made against him.
46. It is urged on behalf of the applicant that the inquiry which the Second Class Magistrate was conducting was a judicial inquiry, and the action of the Collector in instituting a departmental inquiry on the strength of the report of the District Superintendent of Police was an unwarranted interference with the judicial inquiry conducted by the Second Class Magistrate. It is urged, on the other hand, by the learned Government Pleader that the inquiry conducted by the Second Class Magistrate under Sections 174 and 176 was not a judicial inquiry, and reliance is placed on the decision in In the matter of Troylokhanath Biswas arid Ram Churn Biswas I.L.R (1878) Cal. 742. In the interlocutory judgment of this Court delivered by Fawcett and Mirza JJ. it was held that any undue interference with action legitimately taken by a Magistrate under Section 176 can be scrutinised under the inherent powers of this Court under Section 561-A of the Criminal Procedure Code, In In the matter of Troylokhanath Biswas and Ram Churn Biswas, where the Magistrate hold an inquiry under Section 135 of the Criminal Procedure Code, Act X of lf-72, corresponding to Section 176 of the present Code, into the cause of the death of a person found dead under suspicions circumstances, drew up a report embodying the result of the inquiry and sent it to the District 'lagiatrate, it was held that ass. 185 did not require the Magistrate to make a report or to give a finding, the report actually sent could not be considered to be a part of the judicial proceeding, and therefore, the High Court had no power to send for it under Section 296 of the Criminal Procedure Code then in force, It has not been decided in that case that the inquiry made by the Magistrate under Section 135 of the Criminal Procedure Code then in force was not a judicial inquiry, but that the report made by the Magistrate, which was not required to be made under Section 185, did not form part of the judicial proceeding, Under Section 176, a Magistrate empowered to hold an inquest has all the powers in conducting it which he would have in holding an inquiry into an offence, and the Magistrate holding such an inquiry is empowered to record evidence taken by him in connection therewith in any of the manners thereinafter prescribed according to the circumstances of the case. It would, therefore, fall within the definition of inquiry in Clause (k) of Section 4, and would fall within the definition of judicial proceeding in Clause (m) of Section 4.
47. It is urged by the learned Government Pleader that according to the decision in Emperor v. Purshottam Ishvar Amin (1920) 23 Bom. L.R. 1 . a statement recorded by a Magistrate in the course of a police investigation under Section 154of the Criminal Procedure Code, was not evidence in a stage of a judicial proceeding within the meaning of Section 193, Explanation 2, of the Indian Penal Code, The statement taken under Section 164 by a Magistrate being in the course of a police investigation was considered by this Court as not being evidence in a stage of a judicial proceeding differing from the view taken by this Court in Queen-Empress v. Pamhram Ray sing I.L.R (1883) Bom. 216 and by the Madras High Court in Queen-Empress v. Alagu Kone I.L.R (1892) Mad. 421 and Suppa Tevan v. Emperor I.L.R (1903) Mad. 89. The inquiry under Section 176 is a magisterial inquiry which is prescribed as a check on the police inquiry regarding the cause of a suspicious death, Under Sub-section (3) of Section 435 of the Criminal Procedure Code, Act V of 1898, proceedings under Section 176 were not proceedings within the meaning of Section 435 of the Criminal Procedure Code. It is clear, therefore, that proceedings under Section 176 were specifically excluded from the re visional powers of the High Court. If the proceedings under Section 176 were executive and not judicial proceedings, it was not necessary to exclude them from the revisional powers of tb. 3 High Court under Sub-section (3) of Section 435. Sub-section (3) of Section 435 is now omitted by Act XVIII of 1923, Section 116. It would, therefore, follow that the proceedings under Section 176 are subject to the revisional powers of the High Court under Sections 435 and 439 of the Criminal Procedure Code, Apart, therefore, from the inherent powers of the High Court which have been explicitly recognized by Section 561-A of the amended Criminal Procedure Code, the High Court would have power of revision under Sections 435 and 439 of the Criminal Procedure Code with reference to the proceedings of a Magistrate under Section 176 of the Criminal Procedure Code.
48. The second question arising in this application is whether there are sufficient grounds to interfere with the order of the Collector interfering with the judicial inquiry by the Magistrate under Section 176 of the Criminal Procedure Code. The Collector has no power to interfere with the inquiry by the Second Class Magistrate though he may be the superior of the Second Class Magistrate in his capacity as Collector with reference to the Second Class Magistrate's position as Mahalkari, Assuming, how-over, that the order passed on February 4, 1928, by the Collector of Kauara was in his capacity as a District Magistrate, the proper course for the 'District Magistrate was to make a report under Section 438 of the Criminal Procedure Code to the High Court with any recommendation he might have considered proper, He had no jurisdiction as a Collector or as a District Magistrate to interfere with the inquiry conducted by the Second Class Magistrate in his capacity as a Magistrate under Section 176 of the Criminal Procedure Code. The order, therefore, of February 4, 1928, was without jurisdiction.
49. On the merits of the order, we think that the order of the Collector or the District Magistrate was improper. The District Magistrate acted upon the report of the District Superintendent of Police dated January 19, 1928. The report made by the District Superintendent of Police is couched in improper language so far as the action of the Second Class Magistrate is concerned and has not brought to the notice of the District Magistrate certain facts which if was his duty to have brought to his notice. While the District Superintendent of Police refers to the post-mortem notes of the medical officer wherein it is stated that no signs of blood were noticed, the District Superintendent of Police has failed to bring to the District Magistrate's notice the fact that the post-mortem notes disclose that the nose and the upper lip were missing, that the nose seemed to have been cut off, the nasal bones were fractured, the septum was cut off along with the bridge of the nose, and that there was injury to the spleen, and, according to the opinion of the medical officer, the death might have been caused by syncope brought on by haemorrhage resulting from a ruptured spleen. The opinion on the medical officer was clearly in favour of the theory that violence was caused to the deceased, and that the death of the deceased was due to violence and not to natural causes. The Second Class Magistrate acted upon an anonymous letter and the report of the Police Patil in starting this inquiry, and in exhuming the body and requiring the presence of the medical officer at the time of the exhumation. The Second Class Magistrate was in my opinion, quite justified in taking the action he did and in instituting an inquiry under Section 176 of the Criminal Procedure Code which is intended by law to be a check on the inquiry made by the police-officer in the case of a suspicious death. The Sub-Inspector's conduct in not handing over the papers of the inquiry made by him and called for by the Second Class Magistrate is reprehensible. I think the District Superintendent of Police ought to have complied with the request of the Second Glass Magistrate when he called upon him to hand over the papers of the inquiry of the Sub-Inspector when he was conducting an inquiry under Section 176. The persons in whose house death was caused were examined by the Magistrate and they admitted that the deceased received injuries to his nose and lips which caused profuse bleeding, The statements thus made by these witnesses against their own interest, and the post-mortem examination made by the medical officer, give rise to the inference in support of the theory that the death was not due to natural causes. The District Superintendent of Police suggests in his report that Barkelo and Yeshwant were tutored by the Magistrate to say that when Rama became delirious he was acting like a madman, and he requested them to take him outside and while doing so, fell down and received injuries to his nose and lips which caused profuse bleeding, It appears that the District Superintendent of Police was acting under the influence) of the Sub-Inspector who had come to a different conclusion as to the cause of the death of the deceased, and has made an unfair report against the Second Class Magistrate behind his back without putting the District Magistrate in possession of all the facts and drawing his specific attention to the material points in the post-mortem notes of the medical officer, The District Superintendent of Police suggests in his report that he is convinced that the medical officer is doing his utmost to support the Mahalkari in his objectionable procedure. It is unnecessary to go into the several other inaccuracies and omissions hi the report of the District Superintendent of Police to the District Magistrate. If the Second Class Magistrate is guilty of an offence under Section 330, Indian Penal Code, it would have been proper to make a report to the District Magistrate and ask his permission to make an inquiry into the cognizable offence under Section 157 of the Criminal Procedure Code. If the District Magistrate was of opinion that the Second Class Magistrate ought not to have proceeded with the further inquiry under Section 176 of the Criminal Procedure Code, he ought to have made a report to the High Court under Section 438 of the Criminal Procedure Code. He had no power to stop the judicial inquiry which was being conducted by the Second Class Magistrate. I am of opinion that the action of the Second Class Magistrate, in conducting au inquiry under b, 176 supported as it is by the opinion of the medical officer notwithstanding the opposition of the Sub-Inspector and the District Superintendent of Police, is commendable and justified in the circumstances of the present case.
50. The facts brought out in the investigation by the Second Class Magistrate and the opinion of the medical officer are sufficient, in my opinion, to give rise to an inference that the death of Rama was not due to natural causes, and, therefore, the inquiry instituted by the Second Glass Magistrate ought, in the interests of justice, to be further investigated, The only question is to whom this inquiry should be entrusted. It is suggested on behalf of the applicant that the inquiry under Section 176 should be entrusted to the Second Class Magistrate as he has not ceased to be a Magistrate though ho might have been suspended as a Mahalkari under Section 33 of the Land Revenue Code. It is urged by the learned Government Pleader that the Second Class Magistrate has ceased to be a Magistrate as he was appointed by virtue of his office under Section 39 of the Criminal Procedure Code, and reliance is placed on Government Resolution No. 2837 at page 522 of the Bombay Government Gazette, Part I, of 1899, dated April 27, 1899, and Government Resolution No. 7379 at page 2556 of the Bombay Government Gazette, Part I, for 1917, dated November 21, 1917, and it is further urged that another Mahalkari and Second Class Magistrate has been appointed on April 26, 1928. The applicant in this ease is a Mahalkari and by virtue of his office he has the power of a Third Class Magistrate by the terms of the Resolution No. 2837, dated April 20, 1899. With regard to his powers of the Second Class Magistrate, he must be considered to have been invested with those powers under Section 12 of the Criminal Procedure Code, and it is the Local Government alone that has power, under Section 26 of the Criminal Procedure Code, of suspending or removing from office a Second Class Magistrate appointed under Section 12. The applicant has not been suspended by the Local Government is his capacity of a Second Class Magistrate. The departmental inquiry which has culminated in the suspension of the applicant as a Mahalkari is outside the superintendence of this Court, but it appears that the powers of the applicant as a Second Class Magistrate have not come to an end by any order of the Local Government under Section 26 of the Criminal Procedure Code.
51. It appears to us that the fact that the petitioner failed to attend before Mr. Vyas, the Assistant Collector, on February 18, after 2 p. m., is not a sufficient ground for suspension. The Second Class Magistrate requested the Assistant Collector holding the inquiry to commence the hearing of the case at 9 a.m. on February 18 on the ground that he had to attend to the religious ceremony of the anniversary of his mother, and he asked for an adjournment which was refused by the Assistant Collector, though the case, according to him, was specially fixed early in the morning at 9 a. m. in order to enable him to absent himself later on during the course of the day. The Assistant Collector is not able to remember when he commenced the proceedings on that day, i. e., on February 18. We have no reason to doubt the affidavit of the applicant that the case was specially fixed at 9 o'clock in the morning that day in order to enable him to absent himself later on during the course of the day. The Assistant Collector was wrong in not exercising the discretion in allowing the adjournment on the ground that the applicant had to attend a religious ceremony in connection with his mother's anniversary, and the remark of the Assistant Collector in his order of February 18 that the applicant wished to enjoy the rest of the day after 1-15 p. m. as more or lees a holiday on account of his mother's anniversary, seems to have been uncalled for. We think, therefore, that the inability of the applicant to attend on the day of the anniversary of his mother's death, when he specially requested the Assistant Collector to hold the inquiry that day early in the morning in order to enable him to absent himself later in the day, would not be a sufficient ground for inflicting on him the severe penalty of suspension. The Assistant Collector in his report to this Court has referred to the browbeating and the objectionable exhibition of manners and insubordination displayed by the applicant, but apart from the report made to this Court, there is no sufficient basis on the record in support of that suggestion. On the other hand, the application on record submitted by the applicant for adjournment is very courteous and couched in respectful terms.
52. Though, however, the applicant's suspension is not, in our opinion, justified under the circumstances brought to our notice, and though, in our opinion, his powers as a, Second Class Magistrate have not been suspended by the Local Government under Section 26 of the Criminal Procedure Code, we do not think that, under the circumstances of this case and its later developments, it will serve any useful purpose to order that the inquiry should be resumed by the applicant. We think that it is necessary and desirable that the inquiry which has been instituted by Mr. L.T. Karki as a Second Class Magistrate under Section 176 should be completed, though, no doubt, the delay caused by the interference of the Collector by his departmental order might result in prejudicially affecting the result of that inquiry. We think, however, that in the interests of justice, this inquiry should be completed as soon as possible by the District Magistrate himself. On these grounds, I agree with the order proposed by my learned brother.