D.P. Desai, J.
1. From a complaint filed by one Khodabhai Hargovandas the President of a co-operative society, at Delwada, hereinafter referred to as the complainant, against three persons including the sarpanch and the secretary of the village panchayat of Delwada, the present two references have arisen. The complaint was filed before police on 15.1.1968. The sarpanch of the village panchayat Hathibhai Dwarkadas. will hereinafter be referred to as original accused No. 2, the secretary Ishwarbhai Jivramdas, will hereinafter be referred to as original accused No. 1 and the third accused namely a goldsmith named Baldevbhai Ganeshbhai will hereinafter be referred to as original accused No. 3. This sequence is adopted from the serial numbers given to the accused persons in the aforesaid complaint before the police. The allegations made in this complaint were that a demand bill for the arrears of water tax from the complainant society was served on the complainant on 1.5.1968. Against that bill the complainant issued protest and filed an appeal in the District Panchayat of Mehsana. Thereafter no notice or demand bill was given to the society. Even though the demand bill was given under Section 192(1) of the Gujarat Panchayats Act 1961 (hereinafter referred to as the Act), the complainant was not bound to pay the sum mentioned therein at that time. Thereafter the sarpanch i.e. accused No. 2 of the said panchayat without following any legal procedure, that is, without any compliance with Section 192(2) and (4) of the Act, appointed accused No. 1 as the person to carry out attachment. The accused No. 1 gave a notice to the society on 22.11.1968 informing that the attachment will be levied on 12.12.1968. It was alleged that before the expiry of the time which should be given according to law, the notice in question was given by accused Nos. 1 and 2. The further allegation was that even though the notice stated that the attachment will be made on 12.12.1968 the attachment was not levied on that day, but on the next day i.e. 13.12.1968 when the President and other officers of the society had gone to Mehsana District Panchayat the attachment was levied in their absence at 4.30 p.m. It was also alleged that in levying that attachment all the three accused even though they had no right to break open the lock o the Society, had broken it open and had entered into the premises of the society which act amounted to criminal trespass. It was also alleged that at the time of levying attachment accused Nos. 1 and 2 had got the lock broken open by accused No. 3 and in that manner accused No. 3 had abetted the offence of criminal house trespass committed by accused Nos. 1 and 2. It was alleged that accused Nos. 1 and 2 were aware of the fact that the secretary and other members of the society were out of the village still with the wilful intention of causing damage to the society all the three accused had committed criminal trespass and had taken away an electric fan, a petromax and cash of Rs. 80/- from the premises of the society. In the complaint it was also alleged that pursuant to levy attachment accused No. 1 had issued a notification on 13.12.1968 and had applied his lock and possession of the premises was handed over on the same day to the complainant at 7.30 p.m. Thereby the complainant wanted to say that in the period between 4.30 p. m. and 7.30 p. m. the accused had committed criminal trespass Into the premises of the society and had caused damage and had taken away moveables including cash of the society. On these allegations it was stated that offences punishable under Sections 380 and 452 of the Indian Penal Code were committed by accused Nos. 1 and 2 and the same offences read with Section 114 of the Indian Penal Code were committed by accused No. 3. The police investigated into this complaint and ultimately submitted a final report to the learned judicial Magistrate. First Class Vijapur asking for 'B' summary. It appears that they prayed for this summary with prosecution.
2. On this the learned Magistrate issued notices to the complainant and the accused and having heard them he granted 'B' summary without prosecution on 14.5.1970. It may be mentioned at this stage that in reply to the notice issued by the learned Magistrate in connection with the grant of this 'B' summary the complainant appeared and gave his objections in writing at Exh. 3. In these objections having criticized the police report and the investigation he stated that the accused had committed offences by taking away the electric fan, petromax and the cash of Rs. 80/- and therefore process be issued against them. The learned Magistrate passed below this application the following order:
Considering the facts of the case It is ordered that 'B' summary without prosecution be given.
It appears that original accused No. 2 was aggrieved by the order of 'B' summary without prosecution inasmuch as he wanted that the complainant should have been prosecuted for filing a false complaint. Therefore, original accused No. 2 approached the Sessions Court at Mehsana in revision by filing criminal revision application No. 54/70. The complainant was aggrieved by the order granting 'B' summary without prosecution inasmuch as the learned Magistrate did not take cognizance of the offences and therefore he also approached the Sessions Court in revision by filing re-visional application No. 64/70.
3. Both these revisional applications were heard by the learned Additional Sessions Judge at Mehsana together. He was of the opinion that the objection application given by the complainant in terms requested the Magistrate to issue process against the accused and it amounted to a complaint as defined by Section 4(1)(h) of the Criminal Procedure Code (hereinafter referred to as the Code) and therefore the order of the learned Magistrate issuing 'B' summary without prosecution on this objection application was illegal inasmuch as the said order was passed without following the provisions of Sections 200, 202 and 203 of the Code. In the opinion of the learned Judge this order of granting 'B' summary without prosecution passed by the learned Magistrate deserves to be set aside as illegal and the learned Magistrate should be directed to treat the objection application filed as a complaint and to proceed with the same in the manner laid down in Sections 200, 202 and 203 of the Code and then pass necessary orders according to law. The learned Judge also commented upon the fact that the learned Magistrate in passing the impugned order has not given reasons. He therefore ordered a reference to be made in each of the two matters with the recommendation that the order passed by the learned Magistrate granting 'B' summary without prosecution be set aside and the learned Magistrate be directed to proceed with the written statement filed by the complainant as if it was a complaint filed by him. As he passed this order in both the revisional applications, it appears that two references came to be filed upon this order. Criminal Reference No. 5 of 1971 was given to the order passed in criminal revision application No. 54/70 and Criminal Reference No. 6/71 was given number to the order passed in criminal revision application No. 64/70. As stated earlier, criminal revision application No. 54/70 arose upon the application made by the original accused No. 2 in order to obtain an order for 'B' summary with prosecution. Criminal revision application No. 64/70 arose on the application of the original complainant asking for setting aside the order about 'B' summary without prosecution and in treating the objection application as a complaint and for proceeding in accordance with law.
4. The orders in both these revisional applications which were disposed of by a common judgment came to be made by the learned Additional Sessions Judge on January 21. 1971.
5. At this stage we have to take notice of another event on -which a contention has been based by the learned Advocate for the complainant. It is this. Against the order granting 'B' summary without prosecution original accused No. 2 approached this High Court also by filing revision application No. 324 of 1970. That revision application was summarily rejected by my learned brother Divan J, on November 6, 1970, that is prior to the date on which the aforesaid order making the references was passed by the learned Additional Sessions Judge. It appears, however, that the original accused No. 2 did not bring this fact to the notice of the learned Judge. On the strength of this order it was contended by Mr. M.B. Shah for the original complainant that so far as the issue of 'B' summary without prosecution is concerned that order as passed by the learned Magistrate stands and cannot be disturbed now even on the reference made by the learned Additional Sessions Judge. This objection resolves the question to be considered in these criminal references into two questions. Firstly the question is whether the order granting 'B' summary without prosecution of the complainant has become final so far as original accused No.2 is concerned and secondly whether the learned Magistrate acted illegally in not treating the objection application of the complainant as a complaint and in not taking proper steps thereon as provided in Sections 200. 202 and 203 of the Code.
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9. Then the only question which remains for consideration is the second question mentioned above. Now on this point we will have to take into consideration the contents of the objection application filed by the complainant in reply to the notice issued to him by the learned Magistrate to show cause why the summary as prayed for by the police should not be granted. That objection application is at Exh. 3 in the paper book. In that objection application the complainant has given the cause title describing the Court as the Court of the Judicial Magistrate. First Class Vijapur and giving his name as Khodabhai Hargovandas Patel residing at Delwada as the complainant and giving the names of the three accused and their place of residence as Delwada taluka Vijapur. Having framed this cause title of the objection application, the application begins with a statement in Gujarati which reads when translated as under:
I, the complainant, give this written reply to the show cause notice as under:
The point to be noticed at this stage is that in the beginning of this objection application also the complainant described himself as complainant. In paras 1, 2 and 3 the complainant has assailed the police report. He has ended para 3 by saying that the statement of police in its report that the complainant's appeal to the District Panchayat was decided against the complainant was absolutely false and arbitrary. Then come the material paras 4, 5, 6, 7 and 9. In para 4 the notice dated 22.11.1968 given by the original accused No. 1 is referred to and it is stated that even though the notice intimated to the society that attachment will be levied on 12.12.1968 and even though the complainant and members of the committee of the society remained present on that day, attachment was not levied on that day. Instead on the next day that is 13.12.1968 in their absence the lock of the society was broken open and attachment was levied. It is alleged that this act was illegal and without bona fides. The further allegations were that no notice of attachment to be levied on 13.12.1968 was given to the complainant and that before levying the attachment no notice was given to the District Registrar and the sanction of the District Registrar was also not obtained. Then para 4 ends with the averment 'In spite of this the police has committed a grave error in characterising the action of the accused as legal.' Para 5 says that even though the society had dues from the panchayat to the extent of Rs. 285/- the attachment proceedings were levied mala fide. Para 6 says that at the time of attachment accused No. 1 had kept two panchas who were his collaborators present and as a result of which there was no visible evidence about taking away Rs. 80/- from the table of the secretary as stated in his statement before the police that Rs. 80/- were missing. Para 7 on which some argument was raised by Mr. C.C. Patel for original accused No. 2 may be translated in its entirety:
On considering the papers as a whole it is clear that on 13.12.1968 the accused took away electric fan and petromax of the society by attaching them and also took away Rs. 80/- from the drawer of the table of the Secretary and thereby committed offences. Therefore, we request that process be issued against them.
Para 9 refers to the demand of 'C' summary by the police officer as against which the Police Inspector had demanded 'B' summary. Then he comes with the request 'None of the demands of the police may be accepted and process should be issued against the accused.' The question is whether this objection application would amount to a complaint as defined by Section 4(1)(h) of the Code. Let us reproduce the provisions of that section. It reads:
4(1)(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.
The objection application ex faice seems to fall squarely within this definition. But then Mr. C.C. Patel for original accused No. 2 submits that this was an objection application pure and simple which raised objections to the report of the police and the investigation by the police. He, of course, conceded that in this objection application there was a prayer to issue process against the accused but in his submission, that prayer only meant that the Magistrate should take cognizance of the offences under Section 190(1)(b) of the Code upon the submission of the final report by the police. Section 190(1)(b) may be reproduced. It reads:
190(1). Except as hereinafter provided any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-
(b) upon a report in writing of such facts made by any police officer.
Now, it is well settled that even on a summary asked by the police whether 'A' 'B' or 'C' type the Magistrate is not bound to issue summary in any of these forms and he can take cognizance of the offence under Section 190(1)(b) of the Code Vide State v. Lakhamshi 7 Guj LR 130 : 1966 Cri LJ 1420 (FB). It is also laid down by the same decision that the Magistrate receiving police report which would be a final report under Section 169 of the Code has to deal with the report judicially and the order passed by him would be a judicial order and not an administrative order. It was also pointed out that if the final report submitted by the police does not set out the facts constituting the offence the Magistrate still can proceed to take cognizance of the offence under Section 190(1)(c) of the Code of course the Full Bench decided that in any of these cases the Magistrate has no right to call upon the police to submit a charge sheet. It was also made clear that Section 173 of the Code speaks only of report to be submitted by the police on completion of the investigation and that report has to be submitted where the case falls under Section 169, i.e. where the police officer making investigation or the officer in charge of the police station, thinks that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 170 lays down what the police officer has to do if he thinks that there is sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to the Magistrate. In the case falling under Section 169 the police officer has to take a bond from the accused or his surety and to release the accused whereas in a case falling under Section 170 the police officer has to forward the accused under custody to a Magistrate entitled to take cognizance of the offence on a police report or if the offence is bailable and the accused is able to give security to take security from him for his appearance before such Magistrate on the date fixed. In either case the report submitted by the police officer is a report falling under Section 173. In making this position at law clear the Full Bench pointed out that the Code does not use the word 'charge-sheet' or 'final report' but the Bombay Police Manual which contains rules and regulations uses the words 'charge-sheet' in the report to be made by the police in a case falling within Section 170 of the Code and uses the words 'final report' to be made by the police in a case falling under Section 169 of the Code.
10. Mr. C.C. Patel submits that by the prayer to issue process the complainant wanted the Magistrate to take cognizance under Section 190(1)(b) of the Code. It is not possible to agree with this submission. The function of taking cognizance under Section 190(1)(b) of the Code was the function resting entirely with the Magistrate. The complainant was called upon to show cause why 'B' summary with prosecution should not be granted and it is more likely that in showing cause he filed the objection application which was drafted in such a manner as to bear the common characteristics of a complaint as shown by the cause title referred to earlier, and which also contains an allegation saying that the offence has been committed by the named accused persons coupled with the request to issue process. Mr. Patel wanted to submit from para 7, which has been translated earlier, that in making the request to issue process the complainant referred to the police papers only which showed that he wanted the Magistrate to take cognizance under Section 190(1) (b) of the Code. Now the reference to police papers is only by way of evidence in support of the allegations made by the complainant that the offence has been committed by the accused as mentioned in para 7. At the end of para 9, the complainant requests the Magistrate not to issue any sort of summary but to issue process against the accused. This objection application is presented by a lawyer who has signed it as a lawyer for the complainant. Therefore, reading the objection petition as a whole it is clear that it was a composite application consisting both a complaint of the complainant who wanted to file a complaint before the Magistrate notwithstanding the police report as well as the reply to the show cause notice for prosecution. Mr. Patel invited my attention to Emperor v. Imankhan Rasulkhan (1912) 14 Bom LR 141. In that case a sister of the person who filed the complaint before the police was abducted and along with that act an offence of theft was also committed. That sister was a married woman having her husband alive and staying in a village in Baroda State. That complaint was investigated by police and the accused was charge-sheeted for the offences punishable under Sections 366 and 379 Indian Penal Code. The learned Magistrate who inquired into these offences committed the accused to the Court of Session for these two offences only. At the trial the learned Additional Sessions Judge added a charge of adultery punishable under Section 498 of the Indian Penal Code and tried the accused for three offences. The trial went on with the aid of Assessors and the learned Judge agreeing with the Assessors found the accused not guilty of the offence punishable under Sections 366 and 379, Indian Penal Code, but differing from the Assessors he found the accused guilty of the offence punishable under Section 498, Indian Penal Code and convicted and sentenced the accused. The matter went in appeal to the High Court. One of the contentions urged before the High Court was that the accused could not be convicted for the offence punishable under Section 498, Indian Penal Code because there was no complaint as required by Section 199 of the Code. Now, what happened was that the complainant was examined before the Magistrate during inquiry and in his deposition he made statements showing that an offence under Section 498 was committed. The High Court held that the evidence given by that witness before the Magistrate cannot be said to be a complaint within Clause (h) of Section 4(1) of the Code. It was also pointed out that the intention of the Legislature was that in a case of adultery committed with a married woman it is the husband who Is the aggrieved person and he himself must take initial steps by means of a complaint made to a Magistrate before the latter can take cognizance of the act under Section 498 of the Indian Penal Code. Now, it is clear that the learned Magistrate at the inquiry stage had not taken cognizance of the offence under Section 498. It was the learned Additional Sessions Judge who added that charge. There was no question of his taking cognizance at that stage because the accused having been committed for trial to the Court of Session the cognizance of the offence could be taken only on the order of commitment by the Magistrate. Therefore so far as the Magistrate was concerned congizance was not taken of the offence under Section 498 as the learned Magistrate did not frame a charge under that section against the accused while committing him to the Court of Session. In these circumstances the conviction could not be supported on the ground that there was an allegation made in the deposition of the complainant before the committing Magistrate, such a deposition, it was held, would not amount to a complaint The case Is decided on different facts altogether and it is not helpful on the question involved in the present case. If in the present case at the initial stage itself the complainant applies to the court to Issue process by his written objections which are drafted in the form of a complaint, it is not possible to accept Mr. Patel's contention that the written objections in this case will not amount to a complaint. The contents of these objections have been reproduced earlier and they fall squarely within the definition of a complaint as given by Section 4(1)(h) of the Code.
11. The question then is what procedure was the learned Magistrate bound to adopt when the complaint under Section 4(1)(h) of the Code was given to him? Section 202 is clear on this point. The complaint does not fall within the cases laid down in the proviso to that section. Therefore the learned Magistrate was bound to examine the complainant and the witnesses, if any kept present upon oath and was bound to record substance of the examination. This was not done by the learned Magistrate. Without doing this he disposed of the complaint bypassing the impugned order which merely states that 'B' summary without prosecution be given. That was not the manner of disposing of the complaint made to him under the Code. The only manner in which he should have disposed of the complaint was by following the provisions of Sections 200, 202, 203 and 204 of the Code. Of course, it would be open to the learned Magistrate after examining the complainant on oath and his witnesses, if present to hold an inquiry by himself and then to consider the statements given by the complainant on oath and the statements of the witnesses as well as the result of his inquiry. And if he thought that there was no sufficient ground for proceeding he could dismiss the complaint. Without following this procedure the complaint has been dismissed in the present case. That order is clearly illegal. It has prejudiced the complainant inasmuch as his complaint which was duly given to the learned Magistrate has not been entertained at all by the learned Magistrate. Ex facie, therefore, so far as the complainant's complaint in the form of written objections before the learned Magistrate was concerned the order in terms amounts to dismissal of that complaint and is an Illegal order. That order has to be set aside and the learned Magistrate has to be directed to proceed with the complaint.
12. Cases have occurred in which somewhat similar situations arose in two of the High Courts as can be found from the decisions cited at the Bar before this court. In Lakshman v. Sudhakar : AIR1969Ori149 the police after investigating the complaint lodged by the petitioner, submitted a final report. Evidently this was a final report falling under Section 169 of the Code. The petitioner thereupon filed a protest petition in the court of the Sub-Divisional Magistrate for rejecting the final report and for calling upon the police to submit a charge-sheet, in that petition he had also alleged that the opposite party had taken away the crop which he had kept on his land and requested the Magistrate to take action against the opposite party. The Sub-Divisional Magistrate without examining the petitioner on oath and without proceeding in accordance with the provisions laid down in Chapter XVI and Chapter XVII of the Code rejected that petition relying upon the police report. It was held that the procedure followed by the Sub-Divisional Magistrate was not only unjustified but also contrary to law and the order dismissing the petition under Section 203 could not be sustained. It appears that the order was treated as an order dismissing the complaint under Section 203 of the Code. It was pointed out that the materials on which the Magistrate has to act in disposing of a complaint petition under Section 203 of the Code are expressly limited by the section itself to (i) statement on oath, if any of the complainant and the witnesses produced by him, and (ii) the result of the investigation or inquiry under Section 202. It was further pointed out that the investigation by the police had not been ordered by the Magistrate under Section 202 and as such the statements made by witnesses before the police during such inquiry or (the result of the inquiry embodied by the police in the final report cannot be looked into by the Magistrate in dealing with the complaint under Section 203. It was then observed that the Magistrate had no power to call for a charge-sheet as prayed for by the petitioner, but that did not mean that he should on that account be disentitled to get such relief as was provided by law. The correct procedure it was pointed out was to treat the protest petition as a petition of complainant to be dealt with in accordance with the provisions of Chapter XVI and Chapter XVII of the Code. It was held that the provision of Section 200 is mandatory. The omission to examine the complainant on oath under Section 200 was an irregularity, and if by reason thereof the complainant was prejudiced, he was entitled to an order that the subsequent proceedings were invalid. It was held that prejudice in fact had been caused to the complainant because he had been deprived of an opportunity to explain his case to the Magistrate which he could have got had the Magistrate examined him on oath. Therefore, the learned Magistrate in that case was directed to make further inquiry according to law in the light of the observations made in that judgment. In Mahabir Prasad v. The State : AIR1958Ori11 a final report was submitted by police. It was pointed out that in such a case where an informant has reasonable grounds to believe that such a final report will be submitted and he wishes to challenge that report, the usual practice is for him to file a protest petition before the Sub-Divisional Magistrate. Such protest petition may be either anticipatory or it may be filed after submission of the final report. It was held that in any case such a protest petition is in the nature of a complaint and should be dealt with in accordance with the provisions of Chapter XVI of the Code. It was pointed out that where a final report submitted by the police under Section 173 is pending before the Sub-Divisional Magistrate and he has not yet passed any orders thereon, but in the meantime a protest petition is filed and thus a complaint in respect of the same offence is pending before the same Magistrate, two courses are open to the Magistrate; (i) he may call for charge-sheet from the police and take cognizance under Section 190(1)(b) or (ii) he may take cognizance on the complaint under Section 190(1)(a) of the Code. So far as the observation relating to calling for the charge-sheet is concerned that is not good law because the point has been settled by the Supreme Court, It was held by the Supreme Court in Abhinandan Jha v. Dinesh Mishra : 1968CriLJ97 that there is no power expressly or impliedly, conferred under the Code on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. It was observed that though the Magistrate may or may not accept the report, and take suitable action according to law, he cannot impinge upon the jurisdiction of the police by compelling them to change their opinion so as to accord with his view. But the aforesaid observations showing two courses open to the Magistrate will hold good to this extent, when a final report is submitted by the police the two courses open to the Magistrate are to take cognizance of the offence under Section 190(1)(b) of the Code notwithstanding the contrary opinion of the police or to treat the protest application of the complainant as a complaint and take cognizance of the offence under Section 190 (1)(a) of the Code. In Satkari Ghosh v. Ram Lakshman Dutta : AIR1947Cal439 the complaint of theft made to the police was found to be false by police and the police reported to the Magistrate for taking action under Section 211 Indian Penal Code. The Magistrate issued notice to the complainant to show cause why he should not be prosecuted under Section 211. In answer to this notice, the complainant filed a 'naraji' petition impugning the correctness of the police report and stating that his case was true. The Magistrate examined certain witnesses produced by the complainant and coming to the conclusion that a prima facie case had been made against the complainant, decided to try him for an offence under Section 211. As regards the 'naraji' petition the Magistrate made the following observation. 'This also disposes of the 'naraji' petition.' It was held by the High Court that 'naraji' petition was a complaint within the meaning of Section 4(1)(h) of the Code. This being so, the Magistrate ought to have proceeded in accordance with the provisions of Sections 200, 202 and 203 of the Code. It was observed that after the Magistrate has disposed of the complaint in accordance with the provisions of law, the learned Magistrate may take such steps as he thinks proper in accordance with the provisions of the Code referred to earlier. This provision was the provision of Section 195(1)(b) of the Code.
13. The contingency which has arisen in the present case may arise frequently before the subordinate courts when police ask for 'B' summary without prosecution or for the matter of that ask for any of the three types of summaries contemplated under the Bombay Police Manual namely summaries 'A', 'B' and 'C'. In such a case if the complainant before the police files an objection application which more often than not is likely to contain adverse criticism against police investigation the court has to consider whether the said objection application can be treated as a complaint falling within the definition of Section 4(1)(h) of the Code. This objection application may be filed either in reply to the notice issued by the learned Magistrate to show cause why the summary asked for or any other summary should not be granted or it may be filed in anticipation of the act of investigating agency to ask for such a summary or it may be filed subsequent to the request for such a summary when a notice is served on the complainant. In each case, however, it is the duty of the learned Magistrate to see whether the objection application satisfies the requirements of a complaint under Section 4(1)(h) of the Code. If it does and there is a request made to the learned Magistrate to issue process against the accused it is the bounden duty of the Magistrate to proceed in accordance with Section 200 and subsequent provisions of Chapters XVI and XVII of the Code. The question may arise what the Magistrate should do with regard to the summary asked for by the police in such a case. It is clear that the Magistrate is not bound to issue the summary as asked for by the police or for the matter of that any summary at all In 7 Guj LR 130 : 1966 Cri LJ 1420(supra) it was observed at page 137 as under:
The Magistrate has to apply his mind judicially to the final report and decide what kind of summary is justified on the facts and circumstances of the case. The Magistrate may also refuse to Issue any summary at all if on a consideration of the final report and the police papers he is of the view that the request of the police is not well grounded. The Magistrate may take the view that the opinion formed by the police is not based on full and complete investigation and he may direct the police to make further investigation under Section 156(3). This power of the Magistrate is now recognized by all High Courts barring only the erstwhile Court of the Judicial Commissioner of Kutch....
14. Therefore, the Magistrate In such a case may withhold granting of any summary in the first instance and having treated the objection application of the complainant as a complaint may proceed in accordance with the provisions of Chaps. XVI and XVII of the Code as aforesaid. If on a verification of the complaint on oath the Magistrate finds that the matter is one which needs further inquiry by himself he may inquire into the matter as contemplated by Section 202. If on a consideration of the examination of the complainant and the statement made by his witnesses, if any, and the result of the inquiry, if any, made by the learned Magistrate he comes to the conclusion that there is no sufficient ground for proceeding in the matter he can dismiss the complaint after recording his reasons for doing so as provided by Section 203. In the event of such a dismissal the Magistrate can consider the question of issuing a summary as asked for by police and can decide whether there should be a prosecution of the complainant or not and grant 'B' summary with or without prosecution. It is therefore, necessary that before making the final judicial order as regards the grant of any summary the Magistrate has to consider whether the objection application is a complaint as defined by the Code and if he finds that it amounts to a complaint requesting him to issue process or take any other action he is bound to follow the procedure laid down by Chapter XVI of the Code. It is only thereafter that he can deal with the question of grant of summary. If the learned Magistrate thinks that there is sufficient ground to issue process for the examination of the complainant and his witnesses, if any. he has to proceed under Section 204 and in that case there would be no occasion to grant 'B' summary with or without prosecution as asked for by the police because there the learned Magistrate has taken cognizance of the offence under Section 190(1)(a) of the Code.
15. In the present case, as observed earlier, it is clear that the objection application given by the complainant amounted to a complaint. It was not only drafted in the form of a complaint but it had also requested the learned Magistrate to issue process against the accused ignoring the report given by the police. Therefore, the learned Magistrate was bound to comply with the provisions of Chapters XVI and XVII of the Code and the order that he passed on this objection application as reproduced earlier, is clearly illegal and without jurisdiction. The same will have to be set aside.
16. Mr. C.C. Patel for original accused No. 2 raised the contention that looking to the allegations made in the complaint given to the police in this case as well as in the objection application given by the complainant this is a case which falls squarely within Section 322-A of the Gujarat Panchayats Act, 1961 so far as the original accused No. 2 is concerned. That section reads:
When any person who is or had been a sarpanch, upa-sarpanch, chairman, vice-chairman, president or vice-president of a panchayat 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 State Govt. or any officer authorised by the State Government in this behalf.
It is clear that under Section 192(4) of the same Act if the sum for which a writ of demand has been served is not paid within thirty days from the date of such service, the panchayat may levy such sum by distraint and sale of the movable property of the defaulter in the prescribed manner. In the present case notice of demand has been served with regard to the tax due which was served on 12.3.1968 and the same was not complied with. Therefore, distrait could be levelled under Section 192 (4) of the Act. The Government of Gujarat has framed under the powers conferred upon it by Section 323 of the Act rules which are known as the Gujarat Panchayat (Recovery of Taxes and other Dues) Rules 1963. Rule 5 thereof provides for signing of the warrant of distrait either by the sarpanch or upa-sarpanch, etc. and says that it shall be executed by such officer as the panchayat may authorise in this behalf. Rule 6 confers upon the authorised officer the power of distrait of goods or chattel of the person named in the warrant as defaulter. In the present case the notice given by original accused No. 1 that is the secretary of the panchayat to the society itself shows that he claimed to be authorised by a resolution of the panchayat to levy distrait. A copy of the said resolution was also produced in the course of investigation before the police. Now so far as the sarpanch is concerned he Is clearly covered by Section 322-A of the Act because in signing the warrant and in effecting the distrait of goods he acted under the provisions of Section 192(4) of the Act coupled with Rule 5 of the Rules. In any case he could be considered to have purported to act in the discharge of his official duties in the facts of this case. Therefore, so far as the sarpanch was concerned the sanction to prosecute him was necessary under Section 322-A of the Act. Admittedly such sanction was not obtained. In these circumstances it may not be possible to order the learned Magistrate to proceed against the sarpanch on the objection are placation of the complainant in accordance with the provisions of Chapters XVI and XVII of the Code. If the complainant hereafter succeeds in obtaining the sanction to proceed against the sarpanch as contemplated by Section 322-A he will be at liberty to file a fresh complaint against the sarpanch but the order passed by the learned Magistrate so far as the sarpanch is concerned cannot be disturbed on this ground. So far as the secretary is concerned it is unfortunate that he does not fall squarely within Section 322-A of the Act No other provision under which he could be protected from prosecution has been pointed out on behalf of either of the two sides. Of necessity therefore the order as regards the secretary original accused No. 1 and the original accused No. 3 has to be set aside. The learned Magistrate, however, after complying with the procedure laid down in Chapter XVI of the Code will be at liberty to consider whether the facts as alleged by the complainant and as found on his verification amount to an offence punishable under the law.
17. In the result Reference Number 5/71 which arises out of Criminal Revision Application No. 54/70 at the instance of the original accused No. 2 in which original accused No. 2 prays for setting aside of the order for grant of 'B' summary without prosecution is rejected. Reference No. 6/71 arising from criminal revision application No. 64/70 made at the instance of the original complainant with regard to 'B' summary without prosecution as against original accused Nos. 1 and 3 is accepted. The order passed by the learned Magistrate granting 'B' summary without prosecution in so far as it operates against original accused Nos. 1 and 3 is set aside and the learned Magistrate is directed to treat the objection application of the complainant as a complaint against original accused Nos. 1 and 3 and to deal with the same in accordance with the provisions of the Code of Criminal Procedure as pointed out in this judgment and to dispose of the matter in accordance with law. So far as the original accused No. 2 is concerned the objection application which has been directed to be treated as a complaint having been filed without proper sanction cannot be entertained and the proceedings originating upon the said complaint are ordered to be dropped. There will however be liberty for the complainant to obtain requisite sanction under the Gujarat Panchayats Act 1961, for prosecution of original accused No. 2 and then to file a fresh complaint against him. Rule is made absolute In these terms.