1. These are two connected matters for (a) setting aside the Order made by the learned District Magistrate (Judicial) Salem in O. A. No. 71 of 1954 dismissing an appeal sought to be preferred in his court on the ground of limitation; and (b) for quashing the proceedings in C. C. 149 of 1954 on the file of the Sub-divisional Magistrate, Dharmapuri.
2. The facts are : The petitioner herein Subramania Asari, Kammala Street, Dharmapuri, presented a typed complaint before the Sub-Magistrate, Dharmapuri, to the effect that his widowed daughter-in-law Sukirtham alias Manotunani Ammal who was living away from her husband for three years prior to his death on 27-1-1952 had become pregnant and had brought about a miscarriage and secretly burled the foctus ten days prior to the filing of the complaint. The father of this girl was accused of having abetted the commission of these offences. The Sub-Magistrate of Dharmapuri without recording the sworn statement of this complainant and without recording his reasons for postponing the issue of process and causing an investigation to be made by the Police forwarded it to the Sub-Inspector of Police, Dharmapuri, for investigation. The police after investigation reported that the complaint was false. The Sub-Magistrate passed administrative orders as prescribed by the Criminal Rules of Practice on the final report holding the complaint to be false agreeing with the Police. Then aa stated by him in his order after perusing the 'record of investigation by the Police he came to the conclusion that the complainant had falsely accused his daughter-in-law Sukirtham and his Sambhandi of serious offences having no just or lawful ground for doing so. Therefore he considered it expedient in the interests of justice that a complaint against this Subramania Asari should be filed for an offence under Section 211, I. P. C., and did so.
The Sub-Divisional Magistrate, Dharmapuri, to whom this complaint had been made enquired into the matter in O. C. No. 44 of 1953. Six witnesses were examined on the side of the prosecution and eight witnesses were examined on the side of the defence. The learned Sub-Divisional Magistrate came to the conclusion that by reason of the ill-will between this Subramania Asari and his widowed daughter-in-law and her father and between whom a Civil litigation had also arisen for partition of the deceased Dakshinamoorth's properties, this false complaint had been lodged and that Subramania Asari had no Just or lawful ground for instituting such proceedings or charge. Therefore he found the petitioner herein Subramania Asari guilty of an offence under Section 211, I. P. C., and sentenced him to R. I. for six months taking into consideration the following aggravating circumstances :
'In my opinion the accused deserves a very deterrent sentence. He is a literate person and, occupies a decent status in life. He is an experienced and aged man. Therefore there are no mitigating circumstances at all in this case. Offences under Section 211, I, P. C., are increasing to an alarming extent and the tendency to abuse the process of law and to use the same for private vendetta should be put down.'
3. There was an appeal therefore in C. A. 239 of 1953 and the learned Sessions Judge, Salem, set aside the conviction and sentence and discharged the accused on the ground that inasmuch as the Sub-Magistrate had not recorded the sworn statement of Subramania Asari and had postponed the issue of process without recording reasons and forwarded the complaint to the Sub-Inspector and then as a result of the report made by the Sub-Inspector launched this prosecution the entire proceedings were illegal and void. In conclusion the learned sessions Judge also remarked :
'The learned Sub-Magistrate of Dharmapuri if he considers that the interests of justice require a prosecution of the complainant, must examine the complainant on oath and dispose of the complaint filed by the complainant as per law and then consider this question if it arises after such an enquiry.'
This completed one stage of this matter.
4. Subramania Asari thereafter appeared before the S. S. M. Dharmapuri and was examined on oath and the complaint given by him was taken on file under 6s. 313 and 316, I. P. O. The District Magistrate; Salem, in his order dated 29-12-1953 in M. P. No. 80 of 1953 transferred the case to the court of the Judicial Sub-Magistrate, Harur, for disposal according to law. The case was taken on file by the learned Sub-Magistrate as P. R. No. 1 of 1954. Subramania Asari examined himself as P. W. 1 and did not examine any 'other witnesses on the ground that the witnesses-examined by him before the Sub-Divisional Magistrate, Dharmapuri, had been won over. The accused examined three D. Ws. The learned Sub-Magistrate came to the conclusion that Subramania Asari's case was thoroughly false and was only brought about as a result of the bitter ill-feeling between himself and his daughter-in-law who was prosecuting a suit for partition against him, and discharged the accused. In the course Of the discharge order he has also expressed that it was expedient in the interests of justice that steps should be taken to prosecute Subramania Asari for an offence under Section 211, I.P.O. The Sub-Magistrate accordingly drafted a complaint and forwarded it to the Sub-Divisional Magistrate, Dharmapuri, for being taken on file and disposed of according to law. This completes the second stage of the matter.
5. Subramania Asari did not move for setting aside the order of discharge of the accused but only preferred an appeal in the Court of the District Magistrate (Judicial) Salem against the order of the Sub Magistrate, Harur, that a complaint should be lodged against him for an offence under Section 211, I, P. C. This appeal was filed two months after the order was made by the Sub Magistrate, Harur, and within 30 days of the complaint being actually filed in the court of the Sub-Divisional Magistrate, Dharmapuri. This appeal was accompanied by a petition under Section 5, Limitation Act, and the ground put forward was undoubtedly false viz., that the petitioner was not aware of the order of the Sub-Magistrate, Harur, that a complaint would be lodged against him under Section 211, I. P. C., and that he came to know of it only when summons were served on him coming from the court of the Sub-Divisional Magistrate of Dharmapuri.
The learned. District. Magistrate refused to excuse the delay on the assumption that the appeal should have been filed within 30 days of the pronouncement of the order finding that a complaint should be lodged and dismissed the application to excuse the delay and the appeal as being barred by time.
6. It is in these circumstances that these two petitions have been filed & the short points for determination are threefold viz., (a) Limitation (b) bar of double jeopardy pleaded under Section 403, Cr. P. C; and (c) ditto under Article 20(2) of the Constitution of India.
7. Point (a) :-- It is now well settled (for a lucid discussion See AIR commentaries -- The Indian Limitation Act 3rd Edn. (1952) Vol. III P. 2484, Mitra Criminal Procedure Code, 12th Edn. (1954) Vol. II, p. 1846 & Benganatha Iyer's Code of Criminal Procedure 7th Edn. (1954), page 1793) that for purpose of limitation an appeal under Section 476-B, Criminal P. C., is an appeal Under the Criminal Procedure Code within the meaning of Articles 154 and 155 and not an appeal under the Civil P. C. under Article 152 or 156, Limitation Act: see -- 'Chunder Kumar v. Mathuriya Debya : AIR1925Cal1228 ; 'Rajani Kanta v. Bistoo Moni Dassi : AIR1927Cal718 ; -Sheo Prasad v. Sheo Bans : AIR1926All211 ; 'Kandaswami Pillai, v. Thirunayukarasu', 1931 MWN 1064 (D) ; Harcharan v. Kirpa', AIR 1935 Lah 677 (E), following -- 'Dhanpat v. Balak Ram', AIB 1931 Lah 761 (F) and 'Daulat Ram v. Kanhaiya Lal : AIR1925All419 . Where an application under Section 476, Cr. P. C., asking the Court to make a complaint is refused time runs from the date of the order of refusal. Where, however, an order is made directing a complaint to be filed, time is to be calculated not from the date of such order but from the date when the complaint has been actually made. The reason is that Section 476-B, Cr. P. C., gives a right of appeal to a person against whom -a complaint has been made : -- 'Daga Devji Patil v. Emperor', AIR 1928 Bom 64 (H); 'Labha Mal v. Wasawa Mal', 106 Ind Cas 584 (I); 'Pitzholmes v. Emperor', AIR 1927 Lah 54 (J) and --.'Bai Govind v. Jamnabai', AIr 1935 Nag 199 (K). There is a difference of opinion about the point) whether the making of the complaint by the court within the meaning of the words under Section 476-B is something antecedent to the despatch to the Court viz., the date when the complaint is signed by the Magistrate who is complaining or should be taken as the date when the court receives the complaint. The better opinion, however, seems to be that the date of making the complaint should be construed as the date on which the complaint is actually presented to or received by the court and which may be either in person as in the case of an ordinary complaint or through post as in the case of a court or a public officer.
I need not point out that the rules of limitation should not be given a strained interpretation which would work hardship on the affected persons. I need not further point out that even if a stricter view is taken 'ex debito Justitiae', the delay can be excused under Section 5, Limitation Act. Therefore, first of all I find that this appeal to the District Magistrate (Judicial), Salem, was within time. Even assuming that there was any delay this was a fit case for excusing it under Section 5, Limitation Act. The order of the learned District Magistrate, Salem, is, set aside and he is directed to take the appeal on file and dispose of it according to law, C. R. C. 729 of 54 is allowed.
8. Point (b) : The Revision seeking the quashing of the proceedings before the Sub-Divisional Magistrate, Dharmapuri is based upon alleged double jeopardy under 6. 403, Cr. P. C. It Is an elementary proposition that to bar a fresh trial, under Section 403, Cr. P. C., the court by which the accused was first tried should have been a Court competent to pass a valid order of acquittal or conviction and unless the earlier trial was a lawful one which might have resulted in a conviction, the accused could never have been in jeopardy. This has been laid down by their Lordships of the Privy Council in -- 'Yusufali v. The King . Therefore, we have got to see whether the earlier complaint before the Sub-Divisional Magistrate, Dharmapuri, was a competent one of which the said Sub-Divisional Magistrate could have taken cognisance of and maintained a prosecution and convicted the accused.
9. Oh the question as to the effect of examination of a complainant on oath at once after the presentation of the complaint there are two lines of decisions. One line of decisions lays down that the examination of the complainant is not a mere matter of formality and when a Magistrate dismisses a complaint without making an examination under Section 200, Cr. P. C., the order of dismissal is illegal and must be set aside. It is further laid down that no investigation can be ordered under Section 202, Cr. P.C., without examining the complainant. It is finally laid down that where without examining the complainant the Magistrate referred the matter to the Police and then on comparison of the complaint with the police report, dismissed the complaint, held that the proceedings were irregular and must be quashed and the Magistrate should be, directed to reopen the enquiry arid examine the complainant. This is all on the foot that Such proceedings are made without Jurisdiction .and cannot form the basis of any Judicial action.
10. In -- 'In re, Ningappa Rayappa', : AIR1924Bom321 (M), it has been held that where the trying Magistrate dismissed a complaint for criminal breach of trust without examining the complainant in contravention of Section 203, Cr. P. C., and sanctioned his prosecution under Section 211 or 182, I. P. C., the complainant could not be convicted for bringing a false charge because the complaint was hot dismissed according to law contained in Section 203, Cr. p. C., and granting of sanction was illegal. In --In re Pampappa Ballarao Desai', : AIR1926Bom284 (N), it has been held that it is not open to a Magistrate to lodge a complaint for making a false charge until he has first investigated according to law the original complaint which the complainant has made. Where a Criminal charge is filed by a complainant before a Magistrate but the Magistrate does not examine the complainant on oath, nor does he take down his statement in writing, the complainant even if the charge turns out to be a false one, cannot be prosecuted under Section 211, I. P. C.
In -- 'Mir Hameed Saheb v. Abdul Khadir : AIR1929Mad849 , it has been, held that where no order was passed on the complaint as per law, it must be deemed to be pending. In -- 'Bhagwan Das v. Emperor : AIR1935All745 it has been held that a magistrate has no jurisdiction to direct an investigation by the Police until he had examined the complainant on oath. His omission to take this necessary step vitiates the whole of the proceeding. In -- 'P. N. S. Aiyar v. K. J. Nathan', AIR 1948 Mad 424 (Q), it has been held that it is obligatory on a Magistrate before postponement of the issue of process by directing a Police Officer to enquire into the case, to examine the complainant on oath under Section 200, Cr. P. C. The failure of the Magistrate to observe this mandatory provision cannot be cured by Section 537, Cr. P. C.
In -- 'Abhoy Charan v. Bangshadhar Mitra', AIR 1949 Cal 58 (R), it has been held that a Magistrate having taken cognizance of an offence upon a complaint is bound to proceed in accordance with the provisions of one or other of the sections contained in Chapter XVI and the first thing he should do is to examine the complainant oh oath in accordance with the provisions of Section 200 and thereafter decide whether he should issue process and act under Section 202. Where he does neither of these things and without examining the complainant passes an order upon the. Police to Investigate the case, to seize the paddy & arrest the culprits, the order is illegal.
In -- 'Samaddar v. Suresh', AIR 1949 Cal 197 (S), it has been held that 'upon a complaint being filed before a Magistrate, the Magistrate is bound to take cognizance of the offence disclosed by the complaint. He has no option in the matter .....The next thing which the Magistrate is bound to do is to act under Section 200. A failure to examine the complainant upon oath in accordance with Section 200 renders subsequent proceedings invalid.' In -- 'Yakub Shek v. The King', : AIR1950Cal340 (T), it has been held that when a complaint is filed before a Magistrate, unless there is any legal bar to the entertainment of the complaint the Magistrate is bound to take cognizance of the offence, that he has no option in the matter, that he is bound under the provisions of Section 200, Cr. P. C., to examine the complainant on oath at once and that failure to do so is fatal.
11. See also 'In re Janakidas', 12 Bom 161 (U); 'In the matter of the petition of Gahesh Narayan', 13 Bom 590 (V) ; 'Mangu Koeri v. Emperor', AIR 1920 Pat 670 (W); 'Moolchand v. Kessomal', 23 Cri LJ 243 (X); 'Loke Nath v. Sanyasi Charan', 30 Cal 923 (Y) ; 'Fazlar Rahaman v. Abedar Rahaman', : AIR1919Cal78 (Z); 'Haladhar v. Sub Inspector of Police Husa Outpost 9 Cal WN 199 (Z1); 'Satya Charan v. Chairman of the Uttarparah Municipality', 3 Cal WN 17 (Z2); 'Ramaswami v. Emperor', -AIR 1922 Mad 443 (Z3); 'Jitan v. Emperor', 1 Pat LT 564 (Z4); 'Mahadeo Siqgh v. Queen Empress', 27 Cal 921 (Z5); 'Budh Nath v. Empress', 4 CWN 305 (Z6); 'Virabhadrayya v. Vyricherla', 2 Weir 244 (Z7); 'Ali Muhammad v. Emperor,' 12 Cri LJ 539 (Z8); 'Abhoyeswari v Kishori Mohan', AIR 1914 Cal 479 (Z9); 'Khetter Mohan Mitter v. Emperor', 17 CWN 448 (Z10); 'Jalaluddin Muhammad v. Harkchand', 2 Suth WR 812 (Z11); 'Golusu Appalanarasiah v. Emperor', AIR 1930 Mad 705 (Z12).
12. The other line of decisions is to the effect that such omissions are merely irregularities and do not invalidate the conviction where there has been no failure of justice or any prejudice to the accused by reason of such irregularities : See --Phagu Shahu v. Emperor', AIR 1916 Pat 129 (Z13); 'Bharat Kishore v. Judhistir Modall', AIR 1929 Pat 473 (FB) (Z14); 'Begam Rai v. The State', : AIR1952Pat154 (Z15); 'Emperor v. Heman Cope', AIR 1920 Pat 232 (Z16); 'Bhairab Chandra v. Emperor', : AIR1919Cal433 (Z17); 'Queen Empress v. Monu', 11 Mad 443 (Z18); 'Molaippa Goundan v. Emperor AIR 1928 Mad 1235 (Z19); 'Bateshar v. Emperor', : AIR1915All417 (Z20); 'Gopiehand v. Emperor'. AIR 1924 Rang 87 (Z21); 'Chiragh Din v. Emperor', AIR 1924 Lah 258 (Z22); 'Muso v. Emperor', AIR 1914 Bind 19 (Z23); 'Daroga Mahton v. Emperor', AIR 1934 Pat 573 (Z24); 'Anil v. Badam : AIR1929Cal175 ; 'Ram Gir v. Ravisaran : AIR1935All883 ; 'Raghunandan Lal v. Emperor', : AIR1934Pat156 (Z27); 'Baldewa v. Emperor : AIR1933All816 ; 'Ramjas v. Purulia Municipality', : AIR1936Pat145 (Z29); 'Desaibhai Khushalbhai v. Emperor : AIR1938Bom50 (Z30); 'Tara Singh v. Emperor : AIR1938All449 ; 'Dufan Dayal Singh v. Emperor', AIR 1945 Oudh 102 (Z32); 'Ambayara Goundari v. Pachamuthu', AIR 1924 Mad 587 (Z33); : AIR1929Pat473 (Z14); 'Abdul Ali v. Emperor', AIR 1920 Fab 700 (Z34); 'Baldewa v. Emperor : AIR1933All816 ; 'Makhan Lal v. Sakhi : AIR1933Cal552 .
13. In addition to these decisions, it is interesting to note that two well known commentators on the Criminal Procedure Code make the following observations : G. P. Boys (later justice) in his Code of Criminal Procedure, Vol. II (1914), Butterworth Publication, writes at page 429 :
'In many of the above cases it was held that failure to examine the complainant was a fatal error. But in view of Section 537 it is difficult to see how this can be and it has been held that failure to examine the complainant is only an error of procedure which does not vitiate, the proceedings unless it has caused prejudice'.
Justice Sir John Woodroffe in his Criminal Procedure in British India, 1926 Edn, (Thackerspink& Co.), page 234 writes:
'In some cases it has been held that failure to examine the complainant was a fatal error. But this, it is submitted, is not so. The court will only interfere where the omission has caused prejudice'. (See 11 Mad 443 (Z18)'; --. 'Sarb Dyal v. Empress', 10 Pun Re 1896 (Z37); -- 'Girdhari v. Emperor', 11 Pun Re 1911 (Z38).
14. These two lines of decisions reflect the changing interpretations placed upon the scope of Section 537, Cr. P. C. In -- 'Subrahmanya Ayyar v. King Emperor', 25 Mad 61 (Z39), where an accused person was tried on an indictment in. which he was charged with no less than forty-one acts, extending over a period of two years their Lordships of the Privy Council held that the trial was void as being in contravention of Section 233, Cr. P. C., and that Section 537 did not apply to the ease. Their Lordships observed as follows :
'Their Lordships are unable to regard the disobedience of an express provision as to a mode of trial as a mere, irregularity. Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time and those offences being spread over a longer period than by law could have been joined together in one indictment. The illustration of the section itself sufficiently shows what was meant.
The remedying of mere irregularities is familiar in most system's of Jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that, when the code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission of irregularity....
With all respect to Sir Francis Maclean and the other Judges who agreed with him in the case of -- 'In re Abdur Rahman', 27 Cal 839 (Z40), he appears to have fallen into a very manifest logical error in arguing that because all irregularities, are illegal as he saya in a sense, and this trial was illegal, that therefore all things that may in his view be called illegal are, therefore, by that one adjective applied to them become equal in importance and are susceptible of being treated alike. But ' this trial was prohibited In the mode in which it was conducted....'
15. 'Subramania Aiyar's case (Z39)', was followed in a number of cases and whenever there was a defect in the mode of trial, it was held that the defect could not be cured by reference to Section 537. It was also held on the basts of this case that Section 537 could not be applied to a non-compliance with a mandatory provision of law bub can be applied only where the error is a technical one arising out of inadvertence or accident or oversight. Some decisions also made a distinction between an irregularity and illegality and held that the section only applied to the former and not to the latter (See the catena of decisions collected and appended to Notes 6 and 7 of Section 537 in the exaustive, critical and analytical AIR Commentaries on the CriminaI Procedure Code 4th (1950) Edn., Vol. III, pp. 2976 to 2987 illustrating these changes.) But the section itself doea not make any distinction between illegality and irregularity, and in fact as was pointed by their Lordships in 'Subrahmania Aiyar's case (Z39)', all irregularities are illegal in one sense' but that they were not all of equal importance capable of being treated alike.
This tendency to carry to extreme lengths the non-application of Section 537 was checked by the subsequent decision of their Lordships of the Privy Council in -- 'Abdul Bahman v. Emperor , which was a case of non-compliance with Section 360 of the Code and this decision is important for the interpretation placed by the Judicial Committee in that the illegality in 'Subramania Ayyar's case (Z39) should be considered to have occasioned a failure of Justice and that otherwise such non-compliance even with the mandatory provision of law would not by itself constitute an illegality vitiating the trial and the conviction and that what has to be considered in each case is whether the illegality or irregularity complained of affects the competency of the court or whether it occasions or must be taken to have occasioned failure of justice. The view that the distinction drawn in many cases in India between an illegality and irregularity and over which much legal ingenuity Was exercised was recently pronounced in -- 'Adam Haji , Jama v. The King', AIR 1948 PC 63 (Z42), to be one of degree rather than of kind. Thus the interpretation of Section 537 as settled by the Privy Council and now accepted by the Supreme Court is that when a trial is conducted in a manner different from that, prescribed by the Code aa in 25 Mad 61 (Z39)', the trial is bad and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the code, but some irregularity occurs in the course of such conduct, theirregularity can be cured under Section 537 and nonetheless so because the irregularity involves asmuch really always be the case the prejudice ofone or more of the very comprehensive provisions of the Code.
16. The net result of this analysis is that what has to be considered in each case is whether the illegality or irregularity complained of affected the competency of the court or whether it had occasioned or must be taken to have occasioned a failure of justice. To quote Dr. Nandlal (The Code of Criminal Procedure, Vol. II (Kishen Lal & Co., Lahore (1936)) the test is : Does the error go to the whole root of trial? Does it in effect vitiate the proceedings? Has the court assumed an authority which it did not possess? Has it broken the vital rules of procedure? If the error is of such a nature then the proceedings are vitiated in their very inception and the Section 537 has no application; but the mere fact that a certain provision of the code is imperative does not itself indicate that on breach of the provision vitiates the whole proceedings : -- 'Bechu Chaube v. Emperor', : AIR1923All81 (Z43).
16a. That is why in AIR 1922 Mad 443 (Z3) a distinction was drawn between cases where the complainant and accused are the petitioners. The omission to examine the complainant it was held in AIR 1924 Lah 258 (Z22) was a. serious Irregularity and if it caused prejudice as it generally does so far as the complainant is concerned when the complaint is thrown out, the High Court will revise. But when' the case ends in con-diction he has no grievance and the accused, as has been pointed out in AIR 1924 Mad 587 (Z33) cannot in general complain of the irregularity, as omission to take a sworn statement from the complainant cannot prejudice the accused. This prejudice to the complainant becomes an illegality when enquiry and report under Section 202, Cr. P. C., is called for because in terms of Section 202 unless the complainant is duly examined such enquiry and report under Section 202 cannot be called for and are made without jurisdiction and cannot form the basis of any further action.
This unsworn complaint cannot also become the basis of further action as sanctioning proceedings under. Section 182, I. P. C., against a complainant without examining the complainant or witnesses named by him but only on a comparison of the complaint and the papers connected with the complaint received from the Police: In such a case the proceedings are irregular and must be quashed and the Magistrate should be directed to re-open the enquiry and examine the complainant: -- 'In the matter of Biyogi Bhagat', 4 Cal LR 134 (Z44). See also -- 'In re Krishno Churun', 17 Suth WR 2 (Z45) (cited on page 502 of Sohoni's Cri. Pro. Code, Twelfth Edn., p. 503 and Doctor Swaminathan's Code of Criminal Procedure (Addison & Co.) p, 392).
17. Therefore, on the facts of the instant casethis would fall not only under the first line butalso under the second line of decisions set outabove.
18. On these findings the facts of this case all within the decision of the Privy Council in and inasmuch as the first trial was before a court not competent to pass a valid order of acquittal or conviction the accused was never in jeopardy. The accused having never been in jeopardy in the previous trial the question of double Jeopardy under Section 403, Cr. P. C., does not arise.
19. Point (c) : The learned Advocate did not press before me the case based on Article 20(2) of the Constitution of India which lays down that no person shall be prosecuted and punished for the offence more than once, because for the reasons set out by me in -- 'In re C. Devanugraham', : AIR1952Mad725 (Z46) where an accused has been discharged on account of a trial which was a nullity there is no punishment and Article 20(2) does not apply.
20. In the result the complaint made by thelearned Sub-Magistrate, Harur, is irreproachableand Cr. M. P. 1126 of 1954 is dismissed.