1. This is an application in revision by two persons, Ambika Sahi and Ram Lagan Gond, against an order passed by the learned Sessions Judge of Gorakhpur acting as a Court Of revision upon a petition made by the present-applicants challenging the validity of an order passed by a First Class Magistrate in the following circumstances.
2. The first applicant, Ambika Sahi had obtained a decree from the Court of Small Causes at Gorakhpur, and, in execution of that decree, certain movable properties belonging to the judgment-debtor were attached and made over to the custody of the other applicant, Ram Lagan Gond who executed a supurdnama and a bond in the ordinary course. Later on, the judgment-debtor filed an objection to the attachment of his property and that objection was allowed by the Court. When the Amin of the Court asked applicant 2 Ram Lagan Gond to produce the property which had been made over to his custody he failed to produce it and tried to evade the order of the Court. The learned Small Cause Court Judge then issued a notice to the present applicants to show cause why they should not be prosecuted for offences under Sections 406 and 426, Penal Code. The applicants failed to appear to in answer to that notice, and thereupon the learned small Cause Court Judge passed the following order:
Let a complaint be sent under Section 476 as prayed. The applicants to submit a list of witnesses, etc., and give all particulars necessary for the complaint.
A complaint was accordingly made by the Court and it came up for disposal before a Magistrate of the First Class. In that Court the applicants challenged the validity of the complaint principally on the ground that the offences with which the applicants had been charged in the complaint were not mentioned in Clauses (1)(b) and (c) of Section 195, Criminal P.C., and hence the learned Small Cause Court Judge had no jurisdiction to institute a proceeding under Section 476, Criminal P.C., and to make a complaint. It was also contended on behalf of the applicants that, even if the complaint is treated as one which had not been made under Section 476, the learned Magistrate was bound to examine the learned Small Cause Court Judge as an ordinary complainant under Section 200, Criminal P.C. These contentions were rejected by the learned Magistrate by an order which runs as follows:
The main objection of the counsel for the accused was that the complaint in question cannot be made by the Sub-Judge under Section 476, Criminal P.C., as the offence specified in the complaint does not fall under Section 195(1), Clauses (b) and (C), Criminal P.C. It is true that a complaint by a Court under Section 476, Criminal P.C., can be made only in respect of those offences specified in Clauses (b) and (c) of Sub-section (1) of Section 195, Criminal P.C. But it does not appear either from the contents of the complaint or other record that the Court concerned had sent up this complaint specifically under Section 476, Criminal P.C. It is, therefore, to be treated as an ordinary complaint by a Court of offences alleged to have been committed under Sections 406 and 426, Penal Code, and cognizance of the offences was rightly taken by this Court against the accused.The second objection being that if this is to be treated as an ordinary complaint, the complainant ought to have been examined under Section 200, Criminal P.C., but in my opinion the complaint clearly comes under the purview of the exception contained in Sub-section (aa) of Section 200, Criminal P.C., and it was not necessary to examine the Sub-Judge on receipt of the complaint.
I see no force in the application and, therefore, reject it. The case will proceed.
3. No argument is needed to show that the view taken by the learned Magistrate is wholly wrong in law. No Court functioning as a Court is authorised to make a complaint except in accordance with the procedure laid down by the law in Section 476, Criminal P.C., It is evident, therefore, that the learned Small Cause Court Judge had no jurisdiction to make a complaint in the present case because the offences with which the applicants had been charged were not offences falling within the purview of Section 195, Criminal P.C., The complaint was not made by the learned Small Cause Court Judge in his private capacity. This is clear from the order passed by the learned Small Cause Court Judge himself which has been set out above and which appears to have been ignored by the learned Magistrate. Nor was the Magistrate right in thinking that, if the complaint was to be treated as a complaint by a private individual, it was not necessary to examine the learned Small Cause Court Judge as complainant under Section 200, Criminal P.C., The complaint contemplated by the proviso (aa) to Section 200, Criminal P.C., is a valid complaint made in accordance with the procedure laid down in section 476.
4. The question, however, is whether the result must necessarily be that the whole proceeding should be quashed as desired by the applicant. I think the answer should be in the negative. The complaint made by the Small, cause Court Judge may not be a complaint either made by the Court under Section 476, Criminal P.C., or by a private individual, but it certainly was information within the meaning of Section 190(1)(c), Criminal P.C., upon which the Magistrate could take cognizance of the offences with which the applicants had been charged. It may be noted that the offence under Section 406, Penal Code, with which the applicants were charged is cognizable offence for which the applicants could have been arrested by the police without any warrant. If that offence has been committed it is evident that the applicants should be prosecuted for it in the ordinary course. In that event it would not be necessary for the Magistrate to examine any complainant as required by Section 200, Criminal P.C., He must however follow the procedure laid down in Section 191, Criminal P.C., and must inform the accused persons before any evidence is recorded that they are entitled to have the case tried by another Court. I am deliberately not expressing any opinion as to whether an offence under Sections 406 and 426 has or has not been committed upon the allegations contained in the complaint made by the Small Cause Court Judge. It would obviously be advisable for the learned Magistrate to give the applicants a chance of showing that upon those allegations no offence has really been committed. If, after hearing the applicant, the learned Magistrate thinks that an offence has been committed it would be open to him to proceed with the matter after following the procedure laid down in Section 191, Criminal P.C.
5. The result, therefore, is that I dismiss this application and refuse the proceeding The learned Magistrate shall proceed in accordance with the directions given in this order.