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Sheo Pratap Singh and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1930All820
AppellantSheo Pratap Singh and ors.
RespondentEmperor
Excerpt:
- - the document therefore is clearly a complaint......magistrate and convicted under sections 379 and 434, i.p.c., and mr. deb dealt with the appeal as district magistrate. the calcutta high court held:it is now argued by the district magistrate, mr. foley, in his letter showing causa that the amin filed a written complaint to him. this is contrary to the view taken by the deputy magistrate in his judgment, and it would not seem to us that the written report of the amin was a complaint, nor was it treated by mr. foley as a complaint but rather dealt with by him as collector, as the deputy magistrate says it was, and hence mr. deb must be regarded as taking cognizance of the case under section 190(1)(c). so before hearing the appeal when he became district magistrate he should have followed the procedure laid down by section 191, because an.....
Judgment:
ORDER

Bennet, J.

1. This is an application in revision filed on behalf of three persons, Sheo Pratap Singh, Gaja and Baram Din Singh, who have been convicted by a Magistrate under Section 353, 1. P.C., and sentenced to one day's simple imprisonment each and fines of Rs. 100, Rs. 20 and Rs. 25 respectively. An appeal was made to the learned Sessions Judge and dismissed by him, and the application in revision is directed against that appeal. In revision grounds 1 and 3 have been argued. Ground 1 alleges that

the conviction of the applicants is wholly void and illegal inasmuch as the learned Magistrate omitted to inform the applicants under Section 191, Criminal P.C., of their right to have the case tried by another Court.

2. This argument assumes chat the Magistrate acted under Section 190(1)(c). The record shows that the Magistrate issued process on receiving a writing from the Tahsildar forwarding a writing from the amin, who stated that the accused had assaulted him in discharge of his duty. The question is whether the Magistrate acted on informations under Section 190(1)(c), or on a complaint under Section 190(1)(a). If he acted on a complaint, Section 191, Criminal P.C., does not apply. A complaint is defined in Section 4(h), Criminal P.C., which says:

Complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.

3. 'Information' is not defined, but has been held to cover statements of witnesses: Khudiram Mookerjee v. Empress [1897] 1 C.W.N. 105, communications by post: Karim Bakhsh v. Adil Khan [1899] A.W.N. 201, anonymous communications by post In the matter of Hari Narayan Biswas [1899] 3 C.W.N. 65, and may be received in another capacity than that of Magistrate: Sundaresam, In re [1920] 43 Mad. 709. The essential difference between a complaint and information is that a Magistrate acts on a complaint because the complainant has asked him to act, but a Magistrate acts on information on his own initiative. In the case of a complaint the Magistrate is asked to prosecute the persons named as accused, and he has then to decide whether he will accede to the request, or not. If he does not, then he must record his reasons under Section 202(1), Criminal P.C., and may either make an enquiry himself, or direct an enquiry or investigation, or dismiss the complaint under Section 203, Criminal P.C., after recording his reasons. But in the case of receiving information, the Magistrate is not asked by anyone to issue process, and if he does not choose to act on the information, he need not record any reasons or pass any order.

4. A Magistrate acting under Section 190(1)(c) upon information or upon his own knowledge or suspicion, acts in each of these cases of his own accord and initiative. It is for this reason that Section 191 provides that he must inform the accused that the accused may be tried by another Court. In the case of information there is no complainant to examine on oath. On a complaint the complainant is first examined on oath unless, as in the present case, the complaint has been made by a public servant acting in the discharge of his official duty: Section 200(aa), Criminal P.C. Now the Tahsildar wrote a document in English on 12th March 1929 addressed to the S.D.M., that is, the Sub-Divisional Magistrate. In that document he states after setting forth certain facts:

Sheo Pratap Singh and his servants have committed an of offence described in Section 353, I.P.C. It is therefore requested that the three persons named overleaf be tried under the said section.

5. We have here in this document of the Tahsildar the allegation in writing to the Magistrate that the three persons named had committed an offence, and a definite request that they should be tried under Section 353, I.P.C. Accordingly all the ingredients of a complaint, as defined under Section 4(h), Criminal P.C., are present. The document therefore is clearly a complaint. Some argument was made by the learned counsel for the applicants on the distinction between a complaint and information. He alleged, firstly, that a complaint can only be made in a non-cognizable case. There is no authority in the Criminal Procedure Code for this proposition. Secondly, he alleged that a complaint must be made by the person who is aggrieved. The contrary has been held in Farzand Ali v. Hanuman Prasad [1896] 18 All. 465. There is nothing in the definition of complaint' which requires it to be made by the person aggrieved. The third point was that a complaint must bear a court-fee stamp. It is not shown that a complaint by an official in an official capacity requires a court-fee Stamp. The learned counsel than referred to a ruling of the Punjab Chief Court in 1913, reported in Makhan Singh v. Gunner Jepson [1914] 15 Cr. L.J. 261. In that case the Cantonment Magistrate wrote a letter to an Assistant Commissioner suggesting that a person should be proceeded against for using abusive language to a gunner. It was held that the Magistrate addressed, in taking action, took cognizance under Section 191(1)(c). But that case is distinguishable from the present case, because the Cantonment Magistrate had no official connexion with the gunner. Consequently in writing to the Assistant Commissioner the Cantonment Magistrate must have been acting in his private capacity and not in his official capacity.

6. The next case to which reference is made is reported in Bansi Lal v. Emperor [1908] 12 C.W.N. 438. In that case an amin reported to the Collector, Mr. Foley, that he had erected eight boundary pillars on the western side of the village, and when he had gone to take his dinner the accused with 20 or 25 men went to the spot, destroyed the pillar and took away the materials with them. On this Mr. Foley passed the following order:

See under what section Bansi Lal, Dasrathi Lal and their servants can be prosecuted, and prosecute them accordingly. Put up before Mr. Deb for the issue of necessary orders.

7. The case coining up before Mr. Deb he made the following order: 'Summon Bansi Lal under Section 434.' The accused was then put on trial before a Deputy Magistrate and convicted under Sections 379 and 434, I.P.C., and Mr. Deb dealt with the appeal as District Magistrate. The Calcutta High Court held:

It is now argued by the District Magistrate, Mr. Foley, in his letter showing causa that the amin filed a written complaint to him. This is contrary to the view taken by the Deputy Magistrate in his judgment, and it would not seem to us that the written report of the amin was a complaint, nor was it treated by Mr. Foley as a complaint but rather dealt with by him as Collector, as the Deputy Magistrate says it was, and hence Mr. Deb must be regarded as taking cognizance of the case under Section 190(1)(c). So before hearing the appeal when he became District Magistrate he should have followed the procedure laid down by Section 191, because an appeal is part of the trial of an offence.

8. This passage shows that the Court considered that it would have been open to Mr. Foley to deal with the complaint as District Magistrate, but that Mr. Foley in fact did deal with the complaint as Collector. Their Lordships commenting on the order of Mr. Foley observed:

This is not the order which would be passed on a written complaint under Section 202 made to a Magistrate.

9. Therefore, so far as the ruling goes, it is authority for the proposition that a report by an amin to the head of the district might be treated by him as a criminal complaint, but that in the particular case before the Court the head of the district treated it in his capacity of Collector and not in his capacity of District Magistrate.

10. I may also refer to Sarju Prasad v. Emperor A.I.R. 1924 All. 190, in which there was the report of a Magistrate to the District Magistrate that an offence under Section 477, I.P.C., had been committed. This report was made after the Magistrate had ceased to exercise jurisdiction in the case, which had terminated. It was held that this was a complaint. In Raja Ram v. Emperor [1914] 15 Cr.L.J. 700, a report by a District Judge was held to be a complaint. In Queen-Empress v. Monu [1888] 11 Mad. 443 a report by a revenue officer to a Magistrate was held to be a complaint. I consider there is ample authority from the definition in the Code and from the rulings to which I have referred for the proposition that the document sent by the Tahsildar to the Magistrate in the present ease was a complaint. Accordingly it was not necessary for the Magistrate to ask the accused under Section 191, Criminal P.C., whether they desired their case to be tried by another Magistrate. This disposes of the first ground of revision. The third ground of revision was that Section 353, I.P.C., has no direct application to the facts of the present case. In support of this the learned counsel referred only to the report of the amin. That report states that certain cattle were attached by the amin and that they were rescued by force (ba zor chhin lia). Evidence was given on the point and the finding of the Magistrate is:

Baram Din Singh gave the peon, Mehdi Husain, a push and snatched away the string of the attached buffalo which he (Mehdi Husain) was holding. Gaja stopped the cattle from in front.

11. In the third definition of Section 349 force is said to be used

by inducing any animal to move, to change its motion, or to cease to move.

12. In the present case therefore, when the accused caused the animals to cease to move, they were using force as in the definition of Section 349, 1. P.C. I consider therefore that Section 353, I.P.C., does apply to the facts found by the lower Courts. In the result I dismiss the application in revision.


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