1. This is an appeal by the State of Orissa Against an order of acquittal recorded by the Learned Sessions Judge, Mayurbhanj, in a case arising under Schedule 88 Penal Code.
2. The case for the prosecution is that the accused Oriya Sama Majhi disobeyed an order under Schedule 44 criminal P. C. promulgated on 5-2-49, in the Bamangati Subdivision of Mayurbhanj District, prohibiting the residents there in from carrying bows and arrows or any deadly weapons. It is alleged that the accused was moving about on 31-3-49 in his village, Maranda, with a bow, arrows, and a sword shouting that he would kill his enemies with, these weapons. The order under Schedule 44 was duly promulgated on 5-2-49, and it is proved that the accused had knowledge of the ban imposed under this order. The trying magistrate recorded a finding that the accused intentionally disobeyed the order and that the disobedience caused danger to human life and safety.
He accordingly convicted the accused of an offence under Schedule 88, Penal Code and sentenced him to undergo rigorous imprisonment for four months and to pay a fine of Rs. 100/-, in default, to undergo r.gorous imprisonment for one month more. The learned Sessions Judge, Mayurbhanj, who heard the appeal against this conviction, while agreeing with the trial Court on his finding of facts held that the prosecution was defective and that the Magistrate had no jurisdiction to take cognizance of an offence under Schedule 88, Penal Code without a complaint in writing by the Subdivisional Magistrate who passed the order under Schedule 44 Criminal P.C. as required by Section 195 (1) (c), He accordingly directed the accused to be acquitted on the ground that prosecution was incompetent.
3. The question that falls to be determined is whether Schedule 95 (1) (a) applies to the facts of this case. An offence under Schedule 88 Penal Code was non-cognizable and nonbailable by a notification of the State Government in exercise of the powers conferred on them by Schedule 0 (1), Criminal Law Amendment Act, 1932 (XXIII (23) of 1932). Section 10(1) provides:
'The provincial Government may, by notification in the official Gazette, declare that any offence punishable under Schedule 86. 188 and 189.. of the Indian Penal Code when committed in any area specified in the notification, shall, notwithstanding anything contained in the Code of Criminal procedure, 1898, shall, while such notification remains in force, be deemed to be amended accordingly'.
(2) The provincial Government may, in like manner and subject to like conditions and conditions and with like effect, declare that an. offence punishable under section 188 on section 506 Indian Penal Code shall be nonbailable'.
Acting under this section, the State Government in the Home Department issued a notification, dated 14-8-48 (No. 2946-C) which reads as under:
'In exercise of the powers conferred by subsection (1) of section 10 of the Criminal Law Amendment Act 1932 (XXIII (23 of 1932) as applied to the Orissa States by Notification of the Government of Orissa in the Home Department No. 2-A dated 1-1-1948, as subsequently amended, the Governor of Orissa is pleased to declare that any offence punishable under section 188 of the Indian Penal Code when committed in any part of the Orissa States, shall, notwithstanding anything contained in the Code of Criminal Procedure 1893 (V of 1898) be cognizable'. :
By another notification of the same date, Viz.,No. 2 948-C., dated 14-8-48,the offence was made non-bailable also. When the State of Mayurbhanj was merged with Orissa, the Criminal Law Amendment Act 1932 and the notifications thereunder were extended to that State by the Administration of Mayurbhanj State Order, 1949 on 1-1-1949. The prosecution, there-fore, contends that as the offence under Schedule 88, Penal Code has been made cognizable, cognizance can be taken of it by a Magistrate on a report in writing of such facts made by the Police Officer, as provided in Schedule 90 (1) (b), Criminal P.C. It is accordingly urged that Schedule 95 (1) (a) stands amended by implication by reason of Schedule 0, Criminal Law Amendment Act read with the notification issued by the State Government. On the other hand, it is urged for the accused that the requirement that a prosecution for an offence under Schedule 88, Penal Code should be initiated by the officer - whose order has been disobeyed - by a complaint in writing, is not inconsistent with the police being invested with power to investigate and arrest without warrant.
4. Chapter XV of the Code of Criminal Procedure deals generally with the jurisdiction of the criminal Courts in enquiries and trials and is divided into two parts. Part A deals with the place of enquiry or trial while Part B lays down the conditions requisite for Initiation of proceedings. The group of sections commencing with Schedule 90 is dealt with in Part B. This section lays down in what circumstances a Magistrate can take cognisance of an offence. Section 193 deals with the procedure relating to the cognisance of an offence by Courts of Session and Schedule 94 by the High Court. Section 195 prescribes the procedure to be adopted in prosecutions for contempt of lawful authority of public servants, of certain offences relating to documents given in evidence . Section 196 and Schedule 96-A deal respectively with the procedure for prosecution, for offences against the State and for certain classes of criminal conspiracy. Section 197 deals with the prosecution of Judges and public servants and Schedule 98 and 199 deal with prosecutions for offences against marriage. In the case of these latter offences, dealt iwth in Schedule 95 to 199, the Code lays down an additional requisite to the initiation of proceedings in the form of a complaint in writing by the public servant concerned or the previous sanction of the Court or the Local Government. Section 910 prescribes the three modes in which cognizance may be taken by a Magistrate and says:
'190 (1) 'Except as hereinafter provided' any presidency Magistrate, District Magistrate, Sub-divisional Magistrate or any other Magistrate specially empowered in this behalf, may take cognisance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer; and
(c) Upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed.
Thus, complaint, report and information are cognizance of an offence. In the present case the three modes in which a Magistrate can take the prosecution commenced with a report in writing by the police officer and the Magistrate purported to take cognizance under Schedule 90 (l)(b).
The opening words of Schedule 90 (1) 'except as hereinafter provided,' indicate that this section is to be read subject to the other sections of the Code and is controlled by Schedule 95. Section 195 (1) (a) however lays down that no Court shall take cognizance of any offence punishable under Schedule 72 to 188, Penal Code except on
'a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate'.
Cognizance of an offence under Schedule 72 to 188 has, therefore, been regarded as an exception to the general powers of cognizance vested under Schedule 90 (1). It may also be noticed that while Schedule 90 (1) makes a distinction between a 'complaint' and a 'report in writing' of a police officer the expression used in Schedule 95 (1) is 'complaint' only. 'Complaint' is defined in Schedule (1) (h), Criminal P.C. as follows:
''Complaint' means the allegation made orally or in writing to a Magistrate, with a view to taking action under this Code, that some other person, whether known or unknown, has committed an offence, but it 'does not include the report of a police officer'.
The word 'complaint' used in Schedule 95 (1) and 190 (1) (a) must be presumed to have been used in the sense in which that owrd is defined in Schedule (1) (h) and, therefore, should be held to exclude the report of a police officer. On a plain reading of different provisions I arrive at the conclusion that a Court cannot take cognizance of an offence under Schedule 88, Penal Code except on a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.
5. The next question is whether by reason; of the notification of the State Government declaring Schedule 88, Penal Code to be a cognizable and non-bailable offence, the operation of Schedule 95 has in any way been affected. It is pointed out by the learned Government Advocate that the notification expressly says that an offence punishable under Schedule 88, Penal Code shall notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable and that as Schedule 0(1), Criminal Law Amendment Act 1932 expressly provides that on the issue or the notification the Code of Criminal Procedure 1898 shall while such notification remains in force, be 'deemed to be amended accordingly', Schedule 95 (1), Criminal P.C. has been impliedly amended by this provision and that consequently a prosecution for an offence under Schedule 88 Penal Code need not fulfil the condition laid down in Schedule 95. It is further alleged that if the offence becomes cognisable and non-bailable the police can investigate the offence under Schedule 56, and exercise all the powers vested in the police officer under Chapter XIV of the Code. If they can investigate under S .156, they would be entitled to send up a report containing the result of their investigation under Schedule 73 and the Magistrate is thereupon bound to take cognisance under Schedule 90 (1) (b). I need not pause to examine the flaws in this syllogism. Assuming it to be correct, I do not agree with the conclusion. The power of the police to investigate and send up a report is not inconsistent with the additional requisite of a complaint in writing of the public servant concerned whose order has been violated. The Notification of the Govt. merely empowers the police to arrest without warrant and to conduct an investigation. After the investigation is completed it is open to the police to refer the matter to the public servant whose order has been disobeyed and leave it to him to decide whether prosecution should be started. It is for the public servant concerned to make up his mind whether in the public interest the offender should be brought to trial. It is in order to prevent vexations prosecutions that the bunch of sections beginning with Schedule 95 have been incorporated in the Code. The propriety of prosecution is guaranteed by the Legislature in requiring the public servant or Court to make themselves the complaint. Whether the offence is cognizable or non-cognizable is beside the point and has no relevancy to the policy of the Code in requiring the complaint of the public servant concerned of the Court. That this is the idea underlying this group of Sections in the Code will be clear from a reference to the following sections. Section 196 deals with offences against the State and offences relating to elections. It cannot be said that these offences are less serious than an offence under Schedule 88, Penal Code. Yet the Code requires that the complaint should be made by an order of or under the authority of the State Government or by some officer empowered by the State Government in this behalf. The policy of the Code is that a prosecution for such serious offences should not be initiated without due deliberation and consideration about its expediency by the State Government itself. But the weakness of this argument, advanced on behalf of the State, will be palpable when we refer to Schedule 96 (A) which deals with prosecutions for the offence of criminal conspiracy under E. 120 B, Penal Code. If the object of the conspiracy is to commit a cognizable offence, then the conspiracy itself becomes cognizable by the police and yet 196-A would require a complaint in writing to be made by an order of or under the authority of the Provincial Government. Section 197 makes the point even clearer. If the cognizable offence is committed by a Judge or a public servant (who is not removable from his office except by or with the sanction of Government) in the discharge of his official duties, cognizance could be taken by the Court only with the previous sanction of the Governor-General or the Governor of the province as the case may be. It does not, therefore follow that in each and every cognizable case, cognizance could be taken if there is a report in writing by a police officer. In all these sections, the word 'complaint' is used designedly but nowhere is a reference made to 'a report in writing by a police officer'. There is therefore no conflict between Schedule 90 and Schedule 95 even after the issue of the notification by the State Government. The words in Schedule 0 Criminal Law Amendment Act 1932 that the Code of Criminal Procedure' shall be deemed to be amended accordingly' can have reference only to those provisions which indicated that Schedule 88, Penal Code was non-cognizable and bailable before the notification. These words occur in S. II of the Code. Section 188, Penal Code was before the notification, shown as non-cognizable and bailable and the offence under that section was deemed to have become cognisable and non-bailable by reason of the notification read with S 10, Criminal Law Amendment Act. It may well be that a particular offence may be non-cognisable and yet non-bailable. See for instance Schedule 94, 195 and 476, Penal Code which are dealt with in Schedule 95 (b) and 195 (c), Criminal P. C. and for which a complaint in writing is required by the Court. Section 195 there, fore requires a complaint in writing in respect Of some non-bailable offences as well. The argument that cognizable and non-bailable offences are wholly excluded from the operation of Schedule 95 therefore stands on a week crutch.
A police officer making an arrest without warrant is obliged under Schedule 0, Criminal P C to take or send the person arrested before a Magistrate having Jurisdiction in the case. It is contended that if the Magistrate has no jurisdiction to try the case, unless the complaint in writing is made by the public servant concerned, then the accused is liable to be detained in police custody indefinitely. This argument proceeds upon a wrong reading of the provisions of the Code relating to the jurisdiction of a Magistrate and his powers. The word 'jurisdiction' is used throughout the Code as defining a local area within which a Magistrate may exercise any of the powers with which he may be invested. Sections 10 and 12 lay down the respective jurisdictions of the District Magistrate and the Subordinate Magistrates. The powers of Court are defined in Chap III and are divided into ordinary and additional powers which are given in greater detail in S. III and TV. Section 190 refers to a Magistrate who is 'empowered' to take cognizance. On receiving a complaint a Magistrate does not automatically take cognizance, but if he does choose to take cognizance, he has to follow the procedure laid down to Chap. XVI, When, however, he receives a complaint by a Court of a public servant, Schedule 00 (a) dispenses with the examination of the complainant. He can thereafter either choose to issue process or dismiss the complaint. Taking cognisance does not involve any formal action, but occurs as soon as the Magistrate takes legal notice of the commission of an offence with a view to decide whether he can take judicial action, by issuing or refusing process. The power to take cognisance therefore is not the same thing as the power to enquire into or try, for a Magistrate may be empowered to take cognisance of, but not to enquire into and try offences. Similarly, a Court is not empowered to take cognisance may try a case if it is transferred to its file. Under Schedule 01 if the Court is not empowered to take cognisance he returns the complaint for presentation to the proper Court. Taking cognisance therefore may be either in the form of initiating or refusing to initiate proceedings as the Magistrate thinks proper. The expansion 'taking cognisance' is however often times confused with 'cognisable offence' and 'cognisable case'. 'Cognizable offence' is defined as an offence in which a police officer may arrest without warrant and is described in S. II. While therefore an offence may be cognizable by the police the Magistrate, within whose jurisdiction the offence is committed, may not be . empowered to take cognizance of the same. I do not, therefore, see any inconsistency between the police officer being enabled to conduct investigation into an offence under Schedule 88, Penal Code and the Magistrate not being competent to take cognizance of the case until some other formality is complied with. It was open to the investigating officer to place the result of his investigation before the public servant concerned and request him to file a compliant in writing.
Our attention has been drawn to the cases reported in 'Emp v. Ganesh Vasudev 55 Bom 322: (AIR (18) 1931 Bom 135: and 'Latchmi Devi v. Emp 58 Cal 971: (AIR (18) 1931 Cal 122. Both these cases arose under ordinance V (5) of 1930 which was the precursor of the Criminal Law Amendment Act, 1932. Section 10, Criminal Law Amendment Act, 1932 merely reproduces the language of Schedule 1 of that Ordinance word for word. Both these cases lay down that an offence being cognisable by the police does not ipso facto' make it cognisable by a Magistrate. I have no doubt, in my mind, on a plain reading of the Sections of the Code, that Schedule 90 is controlled by Schedule 95 and a search for an exact precedent is a sterile pursuit.
8. I would only refer to one other instance where the powers of the police to investigate and the power of the Magistrate to try are 'kept separate and are not necessarily interdependent. Section 3 of Prevention of Corruption Act (XI (11) of 1947) makes an offence under Schedule 61 or Schedule 65, Penal Code a cognisable offence for the purposes of the Code of Criminal Procedure. But Section 6 of the same Act lays down that no Court shall take cognizance of such offences except with the previous sanction of the Government servant concerned. It would therefore be an idle parade of familiar learning to investigate all the cases which laydown that where a statute prescribes a condition precedent such as a complaint or sanction of an authority ,any prosecution launched without fulfilling the requisite condition is incom.petent. I cannot therefore persuade myself to treat the police charge-sheet as a complaint within the meaning of Schedule 90 (1) (a). The officer hwo promulgated the order under Schedule 44 in this case is the Sub-divisional Magistrate and he has not made any complaint. I have, therefore, no hesitation in accepting the view of the learned Sessions Judge as correct and in holding that the accused has been rightly acquitted. This appeal is dismissed.
9. I agree.