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Rev. Fr. Antony Vs. V. Mariarpudhom - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 74 of 1959
Judge
Reported inAIR1960Ker315
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(1), 173, 173(1), 173(4), 190, 251A and 252 to 259; Travancore-Cochin Public Safety Measures Act, 1950 - Sections 71
AppellantRev. Fr. Antony
RespondentV. Mariarpudhom
Advocates: Mathew Muricken and; V.S. Moothathu, Advs.;Public Prosecutor
DispositionRevision dismissed
Excerpt:
.....- complaint - sections 4(1), 173, 173 (1), 173 (4), 190 and 251a and 252 to 259 of criminal procedure code, 1898 and section 71 of travancore-cochin public safety measures act, 1950 - petition against order dismissing objections to complaint against accused - section 71 makes offences under chapter 3 cognizable by police - in case of offence under section 34 (1) government can proceed against accused by filing complaint before magistrate instead of conducting investigation before moving magistrate - chapter 14 of code does not confer right on accused - held, order dismissing accused's objection not be interfered. - - the government sanction necessary to institute the complaint as well as the authorisation in favour of the district superintendent of police were also produced...........the order of a competent magistrate.thus it may be seen that according to the scheme of the code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the magistrate takes cognizance otherwise than on a police report in which case he has the power under section 202 of the code to order investigation if he thinks fit).'the import of the above observations is that before the accused is put up for trial for a cognizable offence, normally there should be an investigation except when the magistrate takes cognizance of the offence otherwise than on a police report.3. the magistrate can take cognizance of an offence in three ways. section 190 of the criminal procedure code which empowers magistrates to take cognizance.....
Judgment:

Anna Chandy, J.

1. The Revision Petitioner is the 1st accused in C. C. No. 70 of 1958 on the file of the District) Magistrate's Court, Kottayam. He is the Editor of 'Deepika' a Malayalam daily published from Kottayam. He along with the Printer and Publisher of the paper who is the 2nd accused, was proceeded against under Section 34(1) of the Travancore-Cochin Public Safety Measures Act (V of 1950) read with Section 117, I. P. C. The proceedings were initiated by a complaint filed by the District Superintendent of Police, Kottayam. The gist of the complaint is that the accused published in the 'Deepika' dated 14-8-1958 a leading article under the caption ''Sankatakaravayapatam' with the intention of instigating and inciting the public to commit offences involving criminal force and violence against the officers of Government. The Government sanction necessary to institute the complaint as well as the authorisation in favour of the District Superintendent of Police were also produced. The schedule of witnesses was also filed.

The court took cognizance of the complaint and issued summons to the accused. They entered appearance and were released on bail and exempted from personal appearance. The Editor who is the Revision Petitioner then objected to the initiation of the proceedings against him by a mere complaint of the District Superintendent of Police and urged that the complaint should be dismissed. The main contentions of the petitioner were (i) that the offences mentioned in the complaint being cognizable the District Superintendent of Police who got information about it was bound to follow the provisions of Chapter XIV of the Criminal Procedure Code and to file a report after the necessary investigation and that the failure to do so involves a violation of Section 5 Clauses 1 and 2 of the Criminal Procedure Code and (ii) as the case was not instituted on a police report the benefits of a trial under Section 251(a) of the Criminal Procedure Code were denied to the accused. These as well as Some other objections which were not pressed before us were repelled by the learned District Magistrate. This Revision Petition is against the order dismissing the objection.

2. The first point to be considered is whetherthe offence under Section 34(1) of the Public SafetyMeasures Act being cognizable it was wrong tohave initiated the proceedings against the accusedby a mere complaint to the Magistrate by a PoliceOfficer instead of filing a report before the Magistrate after due investigation under Chapter XIV ofthe Criminal Procedure Code. The contentionof learned counsel for the petitioner is that aninvestigation under Chapter XIV of the CriminalProcedure Code must necessarily precede theinitiation of the proceedings against a person whois alleged to have committed a cognizable offence.In this connection the learned counsel has broughtto our notice certain observations made by theirLordships of the Supreme Court in H. N. Rishbudv. State of Delhi, AIR 1955 Supreme Court 196.That was a case under the Prevention of Corruption Act and the validity of the trial was challenged on the ground of the violation of the provisions of Section 5(4) of the Act, which enjoins that certain offences shall not be investigated by a policeofficer below the rank of a Deputy Superintendentof Police except under orders of a Magistrate of theFirst Class. In considering the question whetherthe above provision was directory or mandatorytheir Lordships observed--

'The Criminal Procedure Code provides not merely for judicial enquiry into or trial of alleged offences but also for prior investigation thereof. Section 5 of the Code shows that all offences 'shall be investigated, inquired into, tried and otherwise dealt with in accordance with the Code' (except in so far as any special enactment may provide otherwise). For the purposes o investigation offences are divided into two categories 'cognizable' and 'non-cognizable'. When information of the commission of a cognizable offence is received or such commission Js suspected, the appropriate police officer has the authority to enter on the investigation of the same (unless it appears to him that there is no sufficient ground). But where the information relates to a non-cognizable offence, he shall, not investigate it without the order of a competent Magistrate.

Thus it may be seen that according to the scheme of the Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance otherwise than on a police report in which case he has the power under Section 202 of the Code to order investigation if he thinks fit).'

The import of the above observations is that before the accused is put up for trial for a cognizable offence, normally there should be an investigation except when the Magistrate takes cognizance of the offence otherwise than on a police report.

3. The Magistrate can take cognizance of an offence in three ways. Section 190 of the Criminal Procedure Code which empowers Magistrates to take cognizance provides;

'(1) Except as hereinafter provided, any Presidential Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance 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;

(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.'

Prior investigation is contemplated only in cases where the Magistrate takes cognizance under Clause (b) of the above section. In cases such as the present one where the Magistrate takes cognizance of the offence under clause (a), i.e. on a 'complaint' there is no provision making prior investigation necessary. However after he receives the complaint the Magistrate may order an investigation if he thinks fit to do so. Section 202 empowers:

''Any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under Section 192, if he thinks fit, for reasons to be recorded in writing to postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police-officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint'.

In other words, if the Magistrate has reasons for doubting the truth of the allegations and thinks that he would not be justified in proceeding with the case before ascertaining whether there is sufficient evidence of the charge or a prima facie case against the accused, he may inquire into it himself or direct such enquiry or investigation to be done by another Magistrate or police officer or any other person. The section leaves the decision to order such an investigation, entirely to the discretion of the Magistrate. In this case there is no allegation that the Magistrate failed to exercise that discretion or that he used it wrongly. Thus it is clear that no prior investigation by the police is necessary where the Magistrate takes cognizance of an offence (cognizable or otherwise) on a complaint filed before him and whether an investigation should be conducted or not after the receipt of the complaint is to be decided by the Magistrate. Moreover there is no provision in the Code enabling the Magistrate to order an enquiry after he has issued process to compel the attendance of the person complained against.

4. Before leaving this aspect of the case it has to be seen whether a 'complaint' can be filed before a Magistrate by a police officer. A com-plaint is defined by Section 4(h) of the Criminal procedure Code thus:

'4(h) '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.'

According to this section a police report will not come under the definition of a 'complaint'. However it is not disputed that the police report contemplated above is the report under Sub-section (1) of Section 173 of the Criminal Procedure Code commonly known as a 'charge-sheet'. In the present case, there is no contention that the document filed by the District Superintendent of Police was a 'charge-sheet'. What the Government directed the District Superintendent of Police to do and what the District Superintendent of Police actually did, was to file a complaint before the District Magistrate against the accused for having committed an offence under Section 34(1) of the Public Safety Measures Act.

Thus there is no difficulty in finding that the document filed by the District Superintendent of Police was a complaint as denned in Section 4(h) of the Code. We have been unable to find any provision either in the Police Act or in the Criminal Procedure Code prohibiting the filing of a complaint by a police officer or the reception of such a complaint by a Magistrate, nor was any authority cited before us in support of such a position. Indeed the contention of the learned counsel for the petitioner was that as there is a special provision in Section 190(b) for filing a police report before the Magistrate, it must be deemed that the police are not permitted to approach the Magistrate with a complaint, under Clause (a) of the same section. We are unable to see how such an interpretation is warranted by the section. Public Safety Measures Act is a special Act.

The scheme of the Act indicates that Section 71 which makes offences under Chapter III cognizable by the police, i.e., offences for which a police officer can arrest without warrant, was enacted to enable the police to take prompt action where offences against public safety are committed, In the present case where the alleged offence is one under Section 34(1) of the Act, i. e., publishing materials inciting the public to commit offences involving criminal force and violence against the officers of the Government, the Government for their own reasons thought it fit to proceed against the accused by forthwith filing a complaint before the Magistrate instead of adopting the slower process of conducting an investigation before moving the Magistrate. Therefore unless it can be shown that such action is prohibited under law it cannot be stamped as illegal. As already noted the document filed by the District Superintendent of Police purports to be and in fact is a 'complaint' and as there is no provision prohibiting the officer from filing such a complaint it is clear that the accused has not the right to compel the police to adopt an alternative procedure to prosecute him. Chapter XIV of the Criminal Procedure Code does not confer any particular right on the accused, but only prescribes and controls the mode of investigation, if there is to be an investigation.

5. The second objection raised by the learned counsel for the petitioner is that the accused is prejudiced by the procedure adopted by the police in initiating the proceedings against him by filing a complaint instead of a police report. The contention is that because of the filing of the complaint the trial of the accused is being conducted under Sections 252 - 259, Criminal Procedure Code whereas if the proceedings were initiated by a police report the accused would have had the benefit of a trial under Section 251A. It cannot be disputed that there are differences between the modes of trial envisaged by the two sections, but we are at a loss to find how the accused is prejudiced by not being tried under Section 251A. Trial under Section 251-A is no doubt speedier but the section does not afford any special safeguards for the accused which are not provided by Sections 252 - 259. In fact as pointed out by the learned District Magistrate the provision for cross-examining the prosecution witnesses both before and after the framing of the charge is an additional advantage. Except for the benefit of getting free copies of the documents specified in Section 173(4) there are no special advantages to the accused in a trial under Section 251A. However in this case where the complaint is based on a leading article published in a newspaper and besides filing a list of witnesses a list of the documents was also given to the accused on the direction of the Magistrate, even that question does not assume much importance.

6. So long as there is no statutory bar to a police officer filing a complaint or the Magistrate taking cognizance of it under Section 190(a) and no prejudice is caused to the accused by the procedure adopted, the order of the learned District Magistrate dismissing the accused's objection and proceeding with the trial of the case, does not call for interference in revision and has only to be confirmed. However we wish to observe that since investigation under Chapter XIV of the Criminal Procedure Code is the normal procedure to be followed in the case of cognizable offences and when the new Sections 173(4) and 251A are introduced in the Criminal Procedure Code, it is desirable that the police would follow that normal procedure when dealing with offences made cognizable by Section 71 of the Public Safety Measures Act.

7. This Revision Petition is accordingly dismissed.


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