1. This is a revision petition against the order dated 15-7-1054 passed by the Sub-Divisional Magistrate, Bhopal in criminal case No. 6 0.1 1954 committing the applicants to the Sessions Court to take their trial for offences of Sections 366 and 366 read with Section 109 Indian Penal Code. It is prayed the commitment be quashed.
2. A challan was filed against the applicants by the Bhopal Kotwali Police, in column 8 of which tile following entry was made as to the statement of facts constituting the offences viz.
Accused No 1 abducted the complainant with the help of S. No. 2 and 3 and they have committed an offence Under Section 366/109 IPC as the complainant has attended (attained) 20 years of age
The Sub-Divisional Magistrate took cognizance of tile offence against the accused on this report in writing mad', by the Police Officer apparently Under Section 190(l)(b), Cr.PC
3. The case for the prosecution developed in the enquiry was that the accused No. 1 Badarni-lal abducted one Laxmi Bai aged about 20 years of age wife of one Jamna Prasad in order that she may be forced or seduced to illicit intercourse and that the accused 2 and 3 Kammo and Lalsingh respectively had abetted the offence.
The case for the accused No. 1 was that Laxmi Bai is his own married wife and had left sometime back and had gone to live with Janma Prasad and she herself of her own accord had come away with the accused No. 1. The accused No. 2 and. 3 denied to have taken any part in the alleged incident.
4. The Sub-Divisional Magistrate in his order of commitment observed that the facts in paras 1 and 2 of his order were found proved. One of the facts stated in para 1 is that
Laxmibai was formerly married to Badami-lal who turned her out from his place and thus virtually, divorced her. On such abandonment, the lady was again remarried to Jamna Prasad who lived at Gulgaon.
5. It is now contended that (a) the Magistrate had no jurisdiction to take cognizance of the offence on a report from the police officer Under Section 190(l)(b) which did not contain a statement of facts which constituted the offence and therefore, the order resulting from such cognizance was illegal or ultra vires and liable to be quashed, (b) no offence, much less Under Section 366, IPC was proved on the very facts held established as the element of illicit intercourse was absent, the accused Badamilal being Laxmibai's married husband whose intercourse, even if any would have been. lawful and on this ground also the order was illegal.
6. On the other side, the learned Government Advocate pointed out that no objection was taken by the accused when the prosecution was opened in the committing Court and urged that it could not be Ijgken now. It was further said that the entry in column 8 of the challan contained the statement of the facts as required. On the-second point it was said that consideration of the-merits was premature at this stage.
7. Examining the first contention it must be held that it has substantial force and that the Magistrate acted illegally in taking cognizance o the offence on the report of the police in the case on hand. Uader Section 190(l)(b) it is essential that the report of the police shall contain a statement of facts which constitute the offence. It is not enough if the report merely states the name and the section of the offence and any cognizance by the Magistrate on such a report is illegal and without jurisdiction.
What is stated in the report in the instant case is pointed out in para 2 of this order. I am perfectly clear that the report does not comply with the most important essential requirement. The report does not comply even with the requirement of Section 173(l.)(a), Cr.PC as tire nature of the information is absent.
8. In 'Lee v. H. L. Adhikary', 37 Cal 49-(A), it has been held that:
A prosecution is not legally instituted Under Section 190(l)(b) of the Criminal Procedure Code when the police report Under Section 173 does not set forth the nature of the information.
This case is followed In Re Shivlingappa Bhagappa AIR _1930 Bom 372 (B). where it is held that:
If such charge sheet after mentioning sections of Penal Code, fails to give any details or circumstances of any description, the provisions of Section 173 which require that the nature of the information should be stated and those of Section 190(l)(b) which require that the facts constituting the offences should be stated are disregarded and so prosecution cannot be based on such charge sheet treating; it either as report or complaint.
These two decisions are followed in Achor Ch. Dev Barma v. Govt. of Tripura AIR 1952 Tripura 14 (C).
9. The contention of the Government Advocate that the entry in the report made in column 8 which is retraced in para 2 above was sufficient, has no substance It may be pointed Out that in the Bombay case it was stated in the charge sheet that
In connection with Hubli town C. R. Nos. 36 and 37 of 1927 the accused noted in the charge sheet and others conspired with each other and abetted one another in committing offences Under Sections 161, 162, 163, 164, 165, and 109, 1. P. C.' Even this statement was held to be insufficient and the same view must be taken in die instant case where the statement is still meagre.
I may point out that the object of such statement in the report or complaint is to give the Magistrate as well as the accused an idea of the facts and circumstances which, according to the police, constitute the offence and a mere name and section of the offence can never be expected to do so. In this connection, it may be further pointed out that the entry in column 8 in the report merely refers to 'abduction'. This alone does not even indicate an offence Under Section 366, IPCI unless the purpose of the abduction was added.
Then the entry also fails to refer even to the section of the offence as all the accused are indicated to have committed an offence Under Section 366/109 without stating who first of all committed the offence Under Section 366 which the accused had abetted. I am therefore clearly of the opinion that the report of the police officer in the case on hand fails to comply with either the provisions of Section I73(1)(a) or Section 190(l)(b) Cr.PC and as such the cognizance taken by the Magistrate on such report is Illegal land even ultra vires.
The learned Government Advocate also said that the accused not having taken this objection # at the early stage of the enquiry, cannot now do so. This contention is fundamentally wrong and is repelled by the principle that the rule of estoppel or waiver or acquiescence is not applicable against the accused in a criminal case aim I may only refer in this connection to the observations of the learned Judicial Commissioner in Ali 1952 Tri-pura 14 (C) (ibid) with which I am in full agreement. It is observed that:It Is a fundamental mistake to consider that a legal defect can be cured if the accused does not point out such mistake to High Court. No principle of the nature of waiver, aeqnisecence or estoppel can arise against the accused in criminal cases ami legal consequence must follow all actions and decisions of the Courts whether the accused does or does not raise objection at an earlier stage.
On the first contention alone of' the applicants the oider of commitment is illegal and without jurisdiction and is liable to be set aside and quashed.
10. It was them, urged that even on the facts held proved by the Magistrate, no offence Under Section 366 is even prima facie made out and hence the commitment is liable to be quashed. As pointed out above, the Magistrate's factual findings on the evidence on record are that Laxmi Bai was the married wife of accused Badamilal, that he had turned her out of his house and that she was then remarried to the complainant Jamna Prasad.
His observation that 'accused No, 1 had virtually divorced her' is nothing but an unwarranted iri- ference from the fact that he (Badamilal) had turned her out of his house. It is thus clear that even on the factual findings of the Magistrate the accused Badamilal could not be said to have abducted the woman for 'illicit intercourse' as his intercourse, even if any could not be 'illicit' but lawful.
The parties are admittedly Hindus and it is not said that there was a custon of divorce in the community to whi~h they belang and that die husband's turning of his wife was enough to constitute a divorce. Mere abduction of a woman is not an offence Under Section 366 IPC amd no such offence was even prima facie made out on the findings of the Magistrate himself.
11. The learned Government Advocate urged that it was too premature to consider the evidence in the case. In making such contention, he seems ,to have lost sight of the fact that no evidence is 'considered by this Court and the conclusion reached above is on the factual findings alone of the Magistrate himself. Section 215, Cr.PC lays down that a commitment oraee made can be quashed only on a point of law.
The committing Court is not to act merely as a post office but has to apply its mind to consider if on its own findings, at least a prima facie case is made out against die accused liable to be committed to the Sessions Court. The High Court is entitled to consider if on the factual findings of the Magistrate himself the charge which he has framed and the which the commitment is made can be prima facie sustained.
Restricting myself to this test, I am of the pinion that the charge cannot be sustained and it would be nothtog but sheer waste of time of the Sessions Court and the money of the State in prosecuting the accused on the charge. The order is therefore liable to be set aside on this ground also.
12. The result is that the order of the Sub-Divisional Magistrate dated 15-7-1954 committing the applicants 1 to 3 to take their trial in the Sessions Court is set aside and the commitment is quashed. D.R.fi. Commitment quashed.