1. This Court is much handicapped by neither the Deputy Magistrate Mr. Wali Bakht nor the District Magistrate of Agra quoting (except in one instance in one report) a single section of the Code of Criminal Procedure, which is the only Code laying down rules for the guidance of Magistrates in the procedure that they should follow. It appears that a complaint possibly anonymous was made to the District Magistrate against Babu Bhairon Prasad to the effect that be being a member of the Municipal Board of Agra acquired a share in a contract with the Board. Such conduct on the part of a member of a Municipal Board is prohibited by the provisions of Section 82 (1), U.P. Municipalities Act of 1916 and is made punishable as if the member who acquired an interest in the contract had committed an offence under Section 168, I.P.C. It appears that (though it cannot be said for certain as no specific details are given by either Magistrate and the learned Government Advocate was not in possession of all the details) the District Magistrate immediately took cognizance and started an inquiry which inquiry could only be under Section 202, Criminal P.C. The account-books of B. Bhairon Prasad were taken possession of after a search of his house and examined under the order of the District Magistrate to discover whether the complaint as to his contract with the Municipality contrary to law was correct or not. It appears further from the report of Mr. Wali Bakht that the examination has revealed further alleged offences committed by B. Bhairon Prasad.
2. In my opinion the District Magistrate had no jurisdiction whatsoever to take cognizance as he has done. The learned Government Advocate was inclined to think that the District Magistrate was acting in his capacity as executive officer. An 'executive officer is nowhere defined so far as I know, and the argument possibly means that Mr. Nethersole being head of the Agra District can do what he pleases within the limits of that district without reference to the Code of Criminal Procedure. The District Magistrate himself, however, does not lay claim to any such power and has specifically stated in his report that Mr. Bhakht undertook the inquiry in consequence of orders passed by Mr. Nethersole as District Magistrate for inquiry into a specific complaint of misconduct as a Municipal member on the part of Lala Bhairon Prasad in connexion with certain gram contracts. Obviously, therefore, Mr. Nethersole claims to have taken action under Sections 190 and 202, Criminal P.C. This disposes of the question whether the High Court has jurisdiction or not to interfere in this case. In whatever capacity any officer of the Crown in certain actions taken by him orders search of the house of a public servant or of a subject of the Crown, I think that this Court would have jurisdiction independently of the Code. Nothing in the Code shall be deemed to limit or effect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice (Section 561-A Criminal P. C). I have no doubt whatsoever as to the authority or ability of this Court to interfere in the present matter.
3. Section 190, of the Code does give a District Magistrate authority to take cognizance of an offence upon information received from any person or upon his own knowledge or suspicion that such offence has been committed. Even if the knowledge or suspicion was based on an anonymous letter, that will be sufficient to entitle him to take cognizance provided there was no bar to the taking of such cognizance. In the present case however, cognizance is barred under the provisions of Section 197 (1), Criminal P.C. When any public servant who is not removable from his office save by or with the sanction of the Local Government or some higher authority is accused of any offence alleged to have been committed by him while acting, or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Local Government. Not only the sanction of the Local Government is necessary, but in para. 2, the Local Government has to determine the person by whom and the manner in which the prosecution is to be conducted, and may specify the Court before which the trial is to be held. Until such sanction is received no Magistrate can take cognizance under Section 190, Criminal P.C. So far as I understand the two reports of the two Magistrates no such sanction has so far been received. Under the circumstances the action of the District Magistrate and under his orders of the Deputy Magistrate has been entirely without jurisdiction. If we go further and enquire as to how proceedings may be taken under Section 202, we find the same bar. Any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance may postpone the issue of process for compelling the attendance of the person complained against and either enquire into the case himself or direct an inquiry to be made by any Magistrate subordinate to him. Here also the complaint has to be of an offence of which the District Magistrate has authority to take cognizance. I have already pointed out that the District Magistrate in this particular case was barred under the provisions of Section 197 from taking cognizance, and so he had no authority to direct inquiry by a Magistrate subordinate to him. When the law has provided safeguards, there must be some reason for providing them and a Magistrate cannot be permitted to behave as if no safeguards had been provided by law.
4. Reference was made by the learned Government Advocate to the provisions of Section 523, Criminal P.C. Those provisions have no application whatsoever to the present case.
5. In the result I direct both the District Magistrate and the Magistrate in charge of the inquiry to stay all proceedings and to return whatever property may have been obtained on search of the house of Babu Bhairon Prasad.
6. A copy of this order shall be sent to the District Magistrate.