1. There are two connected Writ Petitions arising in connection with the death of one Arumugham in Police custody and filed by two Sub-Inspectors Natarajan and Rajangam and four Constables P. C. Nos. 113, 1331, 2118 and 2119 and from the alleged torture in Police custody of one Jayaraman filed by Sub-Inspector Rajangam and the aforesaid four Police constables.
2. The facts leading to the institution of these Writ petitions are as follows: Sub-Inspector Natarajan at the material time was the Law and Order Sub-Inspector attached to J-3 Police Station. Sub-Inspector Rajangam was the Detective Sub-Inspector of Police, attached to the same Station. The four Police Constables were attached to the Crime Section of J-3 Station.
The deceased Arumugliam aged about 23 was living at No. 51, Chinnaraju Pillai Thottam, Kodam-bakkam, within the limits of the J-3 Police Station, With his mother Challammal, his mother's paramour Vedachalam, that Vedachalam's wife Kamala and her four children. He was also keeping a concubine by name Rukmani, a flower vendor, aged about 18. This Arumugham was for some time living with that Rukmani in a house separately. The Police Constables Nos. 1331, 2118 and 2119 are said to have been making attempts to have illicit intimacy with that Rukmani.
In these circumstances on 8-2-1958 a complaint by one Manjani was registered by the Crime Section as Crime No. 122 of 1958 under Sections 457 and 380, I. P. C. in J-3 Kodambakkam Station. The deceased Arumugham was suspected in that case. He seems to have been out of view and could not be apprehended immediately. Therefore, on 17-2-1958, Chellammal, the mother of Arumugham, Kamala and her four children were taken to the J-3 Station and kept there with a view to put pressure on Arumugham to surrender himself.
This is a time-honoured practice euphemistically described as keeping under surveillance in the South and as having their presence in the north. is a practice severely sought to be put down by higher Police Officers but still persisting albeit illegally. But this step succeeded in this case in that that day at about 8-30 P. M. Vedachalam accompanied by four other residents of the locality surrendered Arumugham to the Sub-Inspector Rajangam. Cheilammal was sent away under the instruction of Rajangam. Vedachalam returned home at about 10 P. M. and after that he did not see this Arumugham alive.
On 20-2-1958 at about 11-45 P. M. Rajangam telephoned the Assistant Commissioner of Police, Crime (South) that Arumugham had died of fits while being examined in J-3 Police Station. Thereupon the Assistant Commissioner went to the Kodambakkam Police Station and after an informal enquiry sought to contact the Chief Presidency Magistrate and finally located the Sixth Presidency Magistrate, Saidapet, whose turn it was to hold an inquest--the Presidency Magistrates seem to arrange themselves in rota for doing this unpleasant task by turns to hold an inquest over the dead body of Arumugham in the interest of justice.
The Sixth Presidency Magistrate came to the Police Station and held the inquest. The Pancha-yatdars returned an open verdici that "the deceased appears to have died on account of epileptic fits while being interrogated by the Police. The deceased has fallen down on account of fits and died". The report of this investigation held under Section 174, Criminal Procedure Code, has been typed as document No. 1 in the file of typed papers supplied to us by the petitioners. The dead body of Arumugham was sent through P. C. 947 Murugiah to the Professor of Forensic Medicine, General Hospital, for post-mortem examination. This was on 21-2-1958.
On 22-2-1958 Vedachalam and Chellammal presented a petition before the Commissioner of Police (typed as document No. 2 in the file of typed papers supplied to us) alleging that the death of Arumu-gham was caused while he was in the custody of the Police at the Kodambakkam Police Station and that it was not a natural death and that they were keeping the dead body handed over to them by the Medical authorities and praying for necessary enquiry into the cause of death. The Commissioner of Police then, as directed by P. S. O. 157, the machinery prescribed for the Police Officers and embodying the executive directions forwarded the petition to the Chief Presidency Magistrate for necessary action.
The Chief Presidency Magistrate ordered the removal of the dead body of Arumugham again to the General Hospital for a second post-mortem examination by Dr. Asirvadham. Dr. Asirvadham conducted a second post mortem examination. He held that "bruising of tissues was seen over the right buttock, i. e., fatty layer as well as muscles and the deceased died of pulmonary fat embolism the fat having come from the injured fatty layer of the buttock, the fat globules entering the circulatory system and blocking the blood vessels of the lungs, producing acute respiratory failure resulting in sudden asphyxial death."
The Chief Presidency Magistrate acting under the provisions of Section 176, Criminal Procedure Code, as applicable to the City of Madras directed the Fifth Presidency Magistrate to hold an enquiry into the cause of death of Arumugham at Kodambakkam Police Station. I have already mentioned that the procedure for the enquiry by executive directions is prescribed in P. S. O. 157, as it stands now amended. The Fifth Presidency Magistrate held the enquiry and submitted his report to the Chief Presidency Magistrate that there was a prima facie. case made out against the aforesaid two Sub-Inspectors and four Police Constables.
I may point out here parenthetically that one of the grounds of complaint in the Writ Petition is that the enquiry was unfortunately attended by the utmost publicity and this caused serious prejudice to them. It is no doubt true that the free for all enquiry came to wear air of theatricality and naturally invited the muse ling-in-of all sensation mon-fering elements and made the inquiry bear no resem-blance whatsoever to the enquiry contemplated under Section 176 with the limited objectives set out in In The matter of Troylokhanath Biswas. ILR 3 Cal 742.
It is no doubt equally true that to some extent when a local sensational matter of this nature is being enquired into, a certain amount of publicity is unavoidable. But possibly if the learned Magistrate had requested the pressmen to give a condensed version, as is now being done in the Harbour firing enquiry, this kind of hardship complained by the petitioners could have been avoided. Our Madras Press is most co-operative and understanding in these matters. A departmental committee in England on Proceedings before examining justices has recently urged ban on full scale reporting in the press resulting in complications at the time of the trial.
This is not a matter however which affects in any way the points at issue before us in these certi-orari writ petitions and there are other places and other proceedings for mitigating the evil consequences of such undue publicity in the later stages.
To come back to the report made by the Fifth Presidency Magistrate, the Chief Presidency Magistrate on receipt of the same and after applying his mind to the facts disclosed, followed the procedure prescribed under P. S. O. 157 and directed the Commissioner of Police to lay a complaint before him and this has been done. The learned Chief Presidency Magistrate, inasmuch as he is the prosecutor, very properly directed the case to be transferred to the Seventh Presidency Magistrate for disposal according tn law.
It is at this stage that this certiorari writ petition has been filed asking for the quashing of the entire proceedings of the Fifth Presidency Magistrate culminating in the complaint preferred by the Commissioner and transferred to the Seventh Presidency Magistrate as totally illegal, void and without jurisdiction. The petitioners also applied for stay of the trial which is pending before the Seventh Presidency Magistrate who has taken cognizance and further steps for the appearance of the accused and is proceeding with the trial. This stay has been granted pending disposal of this Writ Petition.
I have already mentioned that there is a connected writ petition filed by one of the Sub-Inspectors and four Constables concerned in the prior Writ Petition, in connection with the alleged tor-hiring of one Jayaraman. Now a complaint relating thereto is now pending before the Second Presidency Magistrate was in this wise.
On 14-4-1958 Jayaraman was examined as a witness in the enquiry conducted uncler Section 176 Criminal Procedure Code, read with P. S. O. 157 by the learned Fifth Presidency Magistrate into the death of Arunmugham in Police custody at Kodam-bakkam Police Station. In that enquiry apart from giving evidence about the Police torturing Arunmu-gham which resulted in his death, the said Jaya-rarnan deposed that he himself was beaten with hands and lathies indiscriminately at Kodambakkam Police Station and that he sustained severe injuries.
The Fifth Presidency Magistrate brought this to the notice of he Chief Presidency Magistrate who ordered the Fourth Presidency Magistrate to hold an enquiry under Section 176, Criminal Procedure Code, read with P. S. O. 157 and submit a report with a view to eventually action being taken by him, if necessary. The Fourth Presidency Magistrate held the enquiry and he submitted a report holding that Sub Inspector Rajangam and the tour Police Constables appear to have committed offences punishable under Sections 330, 331 read with Section 34 I, P. C.
On these findings the learned Chief Presidency Magistrate in accordance with the procedure laid down in P. S. O. 157 directed the Commissioner to file a complaint and the Commissioner has dona so on the foot of the following facts.
On 11-2-1958 at about 5-30 hours near Kodarn-bakkam railway Station Jayaraman was arrested by the Kodamhakkam Police under Sections 54 and 550, Criminal Procedure Code, and taken to the Kodambakkam Police Station. At the Police Station P. G. Jagannathan and two other Police Constables made him lie down, tied his hands and legs with a rope and beat him on his legs with lathis. Rajangam who was then the Detective Sub Inspector attached to Kodambakkam Police Station came at 7 A. M. and he also beat Jayaraman on all parts of his body indiscriminately with a lathi.
Two other Police Constables beat him with lathis on his back and his buttocks. He was then taken before the Commissioner of Police for remand and police custody was obtained till 16-2-1958 and Jayaraman was brought back to the Kodambakkam Police Station and again sub-Inspector Rajangam and other. constables beat him with lathis till 16-2-1958. They took him before the Commissioner of Police on 17-2-1958 and took further Police custody till 24-2-1958.
As a result of the confession or information given by the said Jayaraman consequent on the torture by the Police between 11-2-1958 and 17-2-1958, the Police were able to discover various items of property being the subject-matter of cases against Jayaraman pending before the Sixth Presidency Magistrate. Between 17-2-1958 and 24-2-1958 he was not beaten as he had already a large number of injuries and could not walk about and could not answer calls of nature without the help of others. On the night of 20-2-1958 he was taken to the Saidapet Jail and locked up and produced before the Sixth Presidency Magistrate on 25-2-1958. He was convicted by the Sixth Presidency Magistrate on his pleading guilty to the charges and sentenced to Rule I, for six months in each case. The said Jayaraman has sustained injuries on his left shoulder, hand, legs, back, buttocks and other parts of his body. The Police did not send him to any doctor for treatment of his injuries and for the first time he got treatment at the hands of the Jail Doctor at the Central Jail, Madras, on 27-2-1958. On 4-3-1958 an ex-ray was taken at the General Hospital which revealed a fracture of the collar bone and on 17-3-1958 he was also examined by a Doctor.
This complaint laid before the Chief Presidency Magistrate was properly directed by him. because he was in effect the prosecutor in the case to be transferred to the file of the Second Presidency Magistrate. He has taken it on file for offences punishable under Sections 330 and 331, road with Section 34 I. P. C. and has taken further steps to get along with the trial. It is at this stage that this Writ Petition (W. P. No. 435 of 1958) has been filed by the Police officers for similar reliefs as in W. P. No. 434 of 1958.
These complaints are now pending before the-Seventh Presidency Magistrate and the second Presidency Magistrate numbered as C. C. Nos. 6090 of (1958 and 5073 of 1958 respectively. The learned Advocates for the petitioners who seek the calling for records relating to (he enquiry held by the Fifth Presidency Magistrate culminating in the complaints filed by the Commissioner of Police before the Chief Presidency Magistrate, and for quashing them by the issue of a Writ of Certiorari, urged that the enquiry was held under P. S. O. 157, that the enquiry as prescribed under P. S. O. 157 is ultra vires, that by reason of cerlain principles embodied in P. S. O. (157 contrary to the provisions of Section 176 of the Criminal Procedure Code and Articles. 14 and 20(3) and 21 of the Constitution of India, the proceedings constituted a nullity and that therefore on the foot of null and void proceedings the complaints cannot be filed.
3. The learned Advocates for the petitioners Mr. Nambiyar develops his arguments as follows:
(a) "Section 5 of the Criminal Procedure Code directs that all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of the Criminal Procedure Code. The Code provides for a scheme of investigation into cognizable offences; and Sections 156 to 173 lay down the procedure to be followed by an officer in charge of a police station. After investigation, he is responsible for placing the accused on trial and his report is taken cognizance of by the Magistrate under Section 190(1)(b).
When a person however dies while in custody of police, an enquiry into the cause of death is prescribed to be held to be by a Magistrate, instead of by the Police Officer. When he does so, the Magistrate has all the powers which he would have in holding an enquiry into an offence; and the Magistrate holding the enquiry is empowered to record the evidence taken by him in the manner provided by the Code. These are judicial proceedings subject to the safeguard of the revisional powers of the High Court under Sections 435 and 439, Cr. P. Code.
If the Magistrate arrives at the conclusion that an offence has been committed he could take cog-nisance of the same under Section 190(1)(c) of the Code. There is no other provision in the Code for holding a magisterial enquiry into the cause of death of a person who died while in the custody of the police. The Code being exhaustive and Section 5 thereof being explicit that the enquiry shall be held or investigated for an offence under the Indian Penal Code only in the manner provided for in Crl. P. C., it is not open to Government of a State to override the law of the land and substitute or prescribe a different procedure apart or different from what has been prescribed under the sections of the Code, P. S. O. 157 is thus violative of Sections 5 and 176 Crl. P. C.
(b) P. S. O. 157 is only an executive and administrative instruction. It has no legal force and is founded on no statutory authority. It is not competent for the Government by an executive instruction to direct an inquiry affecting the life, limb, liberty or properly of a citizen unless it is authorised by law, particularly when it involves the compulsory attendance of citizens as witnesses to testify on oath. Such powers can be exercised only by virtue of any law. P. S. O. 157 and all proceedings held thereunder including the submission of findings and the filing of the complaint are totally illegal, void and non est.
(c) Under the scheme formulated in P. S. O. (157 the enquiry envisaged is purely informal and the proceedings non-judicial. But Section 176 Cri P. C. prescribes a judicial enquiry. It is not open to the Government to substitute a non-judicial inquiry and circumvent the provisions of Section 176 Crl. P. C. thereof. The Sixth Presidency Magistrate who held the inquiry under Section 178 Crl. P. C. does not appear to have implicated the petitioners as having committed any offence in connection with the death of Arumugham; and if this be right it is not competent for the Chief Presidency Magistrate to direct another Magistrate to embark upon an enquiry not envisaged by the Criminal Procedure Code and compel the filing of complaints before him.
(d) P. S. O. 157 having been found inadequate to compel the attendance of any witness, the Government conferred further powers under Section (2) of the Madras Revenue Enquiries Act, 1893, and it was in exercise of such powers that the Fifth presidency Magistrate compelled persons to testify at the enquiry on oath and arrive at his findings. The Petitioners submit that it is not open to the Government to invest a Presidency Magistrate who is a statutory authority under the Criminal Procedure Code with any power under provisions of the Madras Revenue Enquiries Act, which is intended to subserve a different object and a different purpose.
Such enforcement of powers on a Magistrate is totally alien to the scheme of the Revenue Enquiries Act, and is therefore ultra vires the powers of the Government under the Hevenue Enquiries Act.
(e) Neither the Chief Presidency Magistrate nor the Fifth Presidency Magistrate is an authority created by the Government of Madras, under the Revenue Enquiries Act of 1893, nor is it competent for the Government to authorise officers in general with powers under the Revenue Enquiries Act. The proceedings so held and the evidence so obtained are illegal and liable to be quashed.
(f) P. S. O. 157 is also inconsistent with Section 190 of the Cri P. C. Section 190 leads Chap. XVI of the Criminal Procedure Code and is headed "The condition and requisite for initiation of proceedings" and Section 190(1) empowers a Magistrate to take cognizance of an offence, only in one of the three ways specified thuerein; viz.,
(a) upon receiving a complaint of facts which constitutes an 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.
(g) Section 190(1)(c) read with Section 176 empowers the Magistrate holding the enquiry to take cognisance of an offence and proceed in accordance to the provisions of the Code. But P. S. O. 157 renders these provisions ineffective and cripples the enquiring Magistrate from taking cognizance on his own, in so fnr as it compels him to forward his findings to the Chief Presidency Magistrate and disables him from taking cognisance of the offence himself. P. S. O. 157 is therefore in conflict with Section 190(1)(c) of the Code.
(h) When a cognisable offence is suspected to be committed investigation has to he conducted into and the enquiry or trial held only in the manner prescribed by the Criminal Procedure Code; and as stated earlier, apart from a complaint from & private individual, there can only be two ways in which the offender could be brought to trial.
(a) On a police action report.
(b) By the enquiring Magistrate himself.
There is no provision in the Code empowering the Chief Presidency Magistrate to direct the Commissioner of Police to file a complaint before him as in the present case. The Chief Presidency Magistrate has no jurisdiction to direct the Commissioner of Police, to file the complaint against the present petitioners and such direction is not authorised by the Code and in so far as P. S. O. 157 authorised such a procedure it is ultra vires and invalid.
When a statute says that a certain thing shall be done in certain way, it should be done that way and no other. When the Code directs that cognisance shall be taken only according to the conditions prescribed it is not competent for the Magistrate to take cognisance jn a different way altogether.
The conditions prescribed by Clauses (a), (b) & (c) are distinct, separate anci mutually exclusive. Cognisance under one cannot be cognisance under the other. The complaint that is contemplated under Section 190(a) is a complaint emanating from the knowledge of a person other than a Magistrate taking cognisance and cannot he identical either with a Police report or one which has its source from the now ledge or suspicion of the Magistrate himself.
What has happened herein is that the complaint has been directed to be filed by the Chief Presidency Magistrate himself who forwarded to the Commissioner, a copy of the findings of the Fifth Presidency Magistrate. That complaint therefore is not based on the knowledge or suspicion of the Commissioner, but dictated or directed by the Chief Presidency Magistrate, on his own knowledge. The petitioner sumbits that the procedure prescribed by Section 190 Crl. Procedure Code directs a corn-plaint to be filed in accordance with its terms; and the knowledge is to be imported by the complainant to the Magistrate not vice versa.
The present complaint does not come within the provisions of Sub-Divisions (a), (b) or (c) of Section 100 (I) Crl. P. C. which prescribes the requisite conditions for the initiation of proceedings. To take cognisances under Section 190 Crl. Procedure Code is a procedure of entailing serious consequences to a citizen; and its provisions cannot be defeated or rendered nugatory by a Magistrate by compelling a complaint for purpose of taking cognizance of what the Magistrate is already cognisant of Section 190 should be conferred to not merely in form hut also in substance.
(i) Nor is it competent for the Commissioner of Police to file a complaint merely as a conduit pipe of the Chief Presidency Magistrate. The Commissioner of Police is a statutory authority and can enable the Magistrate to take cognizance of an offence only in the manner prescribed by the Code. His duty is only to file a report; and in filing the police report ho must exercise his own personal judgment after investigation into the alleged offence and must take full responsibility for placing the accused for trial before the Magistrate.
The Code does not contemplate a complaint to take the place of police report, much less could such a complaint be filed on dictation of or as the mouth piece of an outside authority however high it may be unless expressly authorised by the Code. The present complaint directed by the P. S. O. 157 and filed by the Commissioner under the orders of the Chief Presidency Magistrate is not a complaint comprehended by the Criminal Procedure Code.
(j) Further Article 20(3) of the Constitution and Section 342 of the Criminal Procedure Code prohibit the person accused of an offence being compelled to testify on oath. Article 20(3) of the Constitution directed that no person accused of any offence shall be compelled to be a witness against himself. The Fifth Presidency Magistrate who held the enquiry under P. S. O. 157 should have been quite aware of the fact that all the petitioners were the accused persons against whom a complaint was filed by the relations of deceased Arumugham.
Nevertheless they were compelled to give evidence even though the enquiry was in effect into an offence alleged to have been committed by them, The P. S. O. as amended by the G. O. No. 2349 Public (General-A) Department dated 5-8-1957 instead of being framed in consonance with the Art, 20(3) authorises the Magistrate to violate the same. The proceedings so held, the findings so arrived at, and the complaints that ultimately emanated are all void and unconstitutional.
(k) In an enquiry where a person accused of aa offence is questioned, under Section 342, no oath may be administered to him. The P. S. O. 157 as amended, which empowered the administration of oath on the petitioners and compelled them to give evidence violates the Criminal Procedure Code.
(1) Even if P. S. O. 157 is intra vires and valid the petitioner submits that the enquiry by the Magistrate resulting in the complaints by the Commissioner of Police, is totally unwarranted by the provisions thereof. As stated earlier a complaint was filed before the Chief Presidency Magistrate by the relations of the deceased. According to P. S. O. 157 Clause (3) where a complaint is filed before the Judicial Magistrate, the Revenue Divisional Officer or his counter-part in the Presidency Town should keep his findings confidential pending the result of the judicial enquiry or the trial emanating from the complaint.
P. S. O. 157 therefore clearly contemplated that once a complant has been filed before the Judicial Magistrate to take cognisance of the same and proceed with the trial and that the findings of the Revenue Divisional Officer should be subject to the result of the trial and not vice versa, When the complaint was filed before the Chief Presidency Magistrate it was his duty in consonance with P. S. O. 157 to take immediate cognisance of the complaint and proceed with the enquiry or trial and not direct the Fifth Presidency Magistrate to hold the enquiry as if such complaint had not been filed at all.
Even under P. S. O. 157, the findings of the non-judicial enquiry are intended not to prejudice a judicial trial. The learned Chief Presidency Magistrate erred in reversing the process and drect-ing the enquiry and enabling the findings to be arrived at under glaring press publicity and such publicity may tend in no small measure to embarrass and prejudice a fair trial.
The petitioners therefore submit that the entire proceedings of the Fifth Presidency Magistrate culminating in the complaints preferred by the Commissioner of Police under the P. S. O. 157 are totally illegal, void and without jurisdiction. The proceedings being entirely void, the complaints filed before the Chief Presidency Magistrate and the taking cognisance of by him is void, and the transfer of the said complaints to the Seventh Presidency Magistrate and Second Presidency Magistrate and the proceedings contemplated in pursuance thereof are equally illegal and without jurisdiction,
The petitioners have no other remedy under law but to approach this Hon'ble Court for the issue of a Writ of Cerfiorari or any other appropriate writ, order or direction to call for the records relating to the enquiry held by the Fifth Presidency Magistrate under P. S. O. 157 culminating in the complaints filed by the Commissioner of Police, to the Chief Presidency Magistrate on 9-5-1958 and 16-5-1958 and transferring them to the Second and Seventh Presidency Magistrate and to quash the same and for such other relief as may be appropriate."
4. On the other hand, the contention of the learned Advocate-General is that the enquiry which was held was one under Section 176, Crl. P. C. as applicable to the City of Madras and that that fact-finding enquiry is intra-vires, that P. S. O. 157 consisting of executive directions to effectuate the carrying out of the provisions of Section 176, Cri, P. C. as applicable to the City of Madras is neither repugnant to the provisions of the Crl. P. C. nor to Articles. 19, 20(3) and 21 of the Constitution of India and that such fact-finding enquiry involving no decision and no adjudication of rights and which is not binding on the parties cannot be made the subject-matter of a writ of certiorari.
5. The position taken up by the learned Advocate-General will be found amplified in the following extract from the counter affidavit filed by the Commissioner of Police in these proceedings:
The complaints have been taken on file by the Chief Presidency Magistrate and transferred to the file of the VIIth Presidency Magistrate and IInd Presidency Magistrate and these were numbered as C. C. No. 6090 of 58 and C. C. 5073 of 58 respectively.
I submit that these petitions are not maintainable in law and ought to be dismissed in limine. It is incorrect to state that the petitioners have no other remedy under law but to approach this Court for the issue of a Writ. I submit that the petitioners have ample remedies under the Code of Criminal Procedure to set aside the proceedings initiated by my complaint if such proceedings are illegal.
I submit that this Court has no jurisdiction to interfere by way of Writ of Certiorari with the proceedings of a Court Subordinate to it, when such proceedings are subject to the ordinary appellate and revisional jurisdiction of this court.
I submit that an enquiry held under police standing Order 157 is not ultra vires. These orders make provisions for any enquiry in the nature of a preliminary investigation by a responsible officer who will be free from police influence to enable the authorities to satisfy themselves as to whether there is a ease to go before the Court.
I submit that police standing Order 157 does not override the law of the land or substitute or prescribe a procedure apart or different from that under the Code. P. S. O. 157 makes it quite clear that the powers exercised therein do not derogate frotn the general powers under the Crl. P. C. which being of a judicial nature will always take precedence. P. S. O. 157 is only an executive and administrative instruction.
The enquiry thereunder does not affect the life, limb, liberty or property of a citizen. The only inquiry that can have such an effect is the proposed enquiry under the Code.
1 submit that the inquiry under P. S. O. 157 does not circumvent the provisions of Section 176 Crl. P. C. The two enquiries are independent and the findings arrived in either of them cannot in any way influence the ultimate enquiry or trial launched against the accused persons. I submit it is irrelevant whether the sixth Presidency Magistrate has or has not implicated the petitioners.
No court is bound by the opinion of a Magistrate under Section 176 Crl. P. C in arriving at a conclusion as to the guilt or innocence of an accused person at any enquiry or trial where such guilt or innocence is directly in issue. In an enquiry under Section 176 no one is arraigned as an accused as it is an open enquiry to arrive at the true facts.
I submit that the Government has full authority to invest Magistrates with powers under the Revenue Enquiries Act
I submit that P. S. O. 157 is not Inconsistent with, Section 190 Crl. P.C. My complaint falls under Section 190, Crl. P. C. The complaint is based on the knowledge of facts contained in the report of the Fifth Presidency Magistrate.
I submit that P. S. O. 157 does not under the provisions of Sections 176 and 190 of the Crl. P.C. ineffective. In fact P. S. O. 157 makes it clear that the Judicial Proceedings, if pending, must take precedence. P. S. O. 157 states that no action can be taken thereunder while any judicial proceeding is pending. In this case there were no judicial Proceedings pending at the time I filed the complaints.
Aspersions cast against me are misconceived and ill founded. I am bound by the Government instructions in P. S. O. 157, under which the Chief Presidency Magistrate directed me to prefer a complaint on the findings of the Fifth Presidency Magistrate. On receipt of the orders of the Chief Presidency Magistrate, I was bound to file the complaint, even though I might not have investigated or supervised the investigation into the offence.
Nor could any blame be cast on me for doing. so, since the Police Standing Order requires me to file the complaint on the direction of the Magistrate. It is respectfully submitted that it is not open to the petitioners to impugn the validity of a complaint filed under Police Standing Order 157 which is intra vires and within the powers of the Govern" ment of Madras to promulgate. The attack against the validity of this said police standing order is unwarranted and unsustainable.
I submit that there has been no violation of Article 20(3) of the Constitution. At the time of the examination of the petitioners they were not accused persons. Section 342 of the Crl. P. C. has also not been violated because any enquiry under P.S.O. 157 is neither an "enquiry" nor a "trial" under the provisions of the Criminal Procedure Code.
I most respectfully submit that in any event it is always open to me to file a complaint or lay such information before a Magistrate as will enable the latter to enquire into or try a cognisable offence. Such a power is quite independent of the enquiry under Police Standing Order 157. I submit that it is quite immaterial for the purpose of the complaint to the Court whether that complaint is the result of an enquiry under P. S. O. 157 or not, The power of Magistrate to proceed with the case springs from the complaint or information giving him knowledge of the commission of a cognisable offence and not the antecedent enquiry.
I submit that it is open to me to make a report in writing relating to any offence under Section 190 Crl. P. C., notwithstanding that an enquiry has been held by a Magistrate under Section 176, Crl. P. C. and the Magistrate has on his conclusions not proceeded to take cognizance under Section 190 (1) fc) read with Section 191. Crl. P.C. I submit that my power to file a complaint under Section 190 Crl. P. C. is not conditioned or affected by anything done or not done by a Magistrate under Section 176 Crl. P.C. or under Police Standing-Order 157.
The true object of Section 176 Crl. P.C. is to authorise a Magistrate to conduct an enquiry in the case specified therein so lhat the Police who are ex-hypothesi involved or interested may not hush up the matter. It is an enabling provision in the interest of booking offenders without giving the Police Officers a chance of shielding a comrade.
It should be subversive of the object and policy of this section to say as the petitioner's claim that when a police officer is responsible for the death of a person in custody a case cannot be taken cognizance of except through Section 176 Cr. P.C. The Magistrate may default or he may come to perverse conclusion in an inquiry under Section 176 Crl. P. C.; that does not preclude a complaint under Section 190 Cr. P. C. The accused cannot be prejudiced as the present cases will be dealt with judicially on the evidence therein by competent courts subject to revision by this court.
I submit that if the present complaints dated 15-5-58 and 9-5-58 are defective for any reason, it does not preclude me from making a fresh complaint or file a charge-sheet under Section 190 Cr. P. C."
6. Before entering into the respective contentions of the learned advocates for the petitioners and the learned Advocate-General, we must bear in mind the provisions of Section 176, Criminal Procedure Code, as they are applicable to the mufussil and as they arc applicable to the City of Madras and the contents of P. S. O. 157 as it now stands.
7. Section 176(1), Criminal Procedure Code is as follow.
"When any person dies while in the custody of the police, the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in Section 174, Clauses (a), (b) and (c) of subSection (1), any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police-officer and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.
The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case."
8. In regard to the city of Madras originally there was a coroner as in the case of Bombay and Calcutta. That office was abolished by Act V of 1889. Section 4 of the said Act V of 1889 enacted that Sections 174, 175 and 176 of the Code of Criminal Procedure shall in their application to the town of Madras, be read as follows:
"176. Provisions with respect to inquiries by Presidency Magistrates and the disinternment of dead bodies : (1) The Chief Presidency Magistrate or such other Presidency Magistrate as the Chief Presidency Magistrate may depute in this behalf, shall, when any person dies while in the custody or the police or in prison, and may in any other case mentioned in Section 174, Sub-section (1). Clause (a), Clause (b), or Clause (c), hold an inquiry into the cause of death either instead of, or in addition to the investigation under either of the two last foregoing sections; and, where he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence and shall record any evidence taken by him in the course of the inquiry as nearly as may be in the manner prescribed in Section 362.
(2) Whenever the Commissioner of Police or a Presidency Magistrate considers it expedient for the discovery of the cause of death of a deceased person whose body has been interred, that an examination should be made of the dead body, such Commissioner or Magistrate as the case may he, may cause the body to be 'disinterred and examined'." (For rules for the guidance of Police Officers in the City of Madras in conducting inquests, see Notification No. 87, Fort St. George Gazette, 1889, Part I, page 366). It would no doubt have been better if this Section 176 substituted for the City of Madras had been numbered as Section 176-A. But this makes no difference and that this substituted or amended Section 176 alone is applicable to the City of Madras will be evident from the following analysis made by the learned Advocate General which cannot be controverted. __________________________________________________________________
Section 157 of East India Co., Act, 1793, 33 Geo. III, Ch. 52.
Coroners appointed for Cities of Bombay, Calcutta and Madras.
Coroners Act IV of 1871 Do amended by ActX of 1881. Applied to the three Presidency Towns.
Criminal Procedure Codes.
Section (1) (e) "Nothing in sections 174, 175 and 176 shall apply to the Police in the town of Madras."
Act V of 1889.Abolished office of Coroner of Madras, by omitting "Madras" in Coroners Act IV of 1871.
Section 4-2 clauses :
repealed Cl. (e) of section 1 of Criminal Procedure Code 1882 (2)."Sections 174, 175 and 176 of that Code IX of 1882; shall in their application to the area comprised within. the local limits of the ordinary Original Civil jurisdiction of the High Court of Judicature at Madras, be read as follows :-
Criminal Procedure Code, 1898
Section 31- References in other enactments to Code of 1882 shall as far as practicable be taken to be made to this Code or corresponding chapter or section.
The Repealing Act, 1938. See sections 3 & 4.
Act I Of 1938.
Section 4 is substantially the same as section 6-A Inserted in 1936 into General Clauses Act.
In list of repeals Act X of 1881.
Act V of 1889.
By Act V ol 1889 :
In respect of a geographical area (Madras City) sections 174 to 176 of Criminal Procedure Code were to be read as the same time, the provision in the Code that sections 174 to 116 do not apply to Madras City was repealed; the enactment therefore is that sections 174 to 176 in amended or substituted form are to apply to the City of Madras. __________________________________________________________________
9. That this is the correct legal position in regard to Section 176 Cr. P. C. is set out in the following standard commentaries on the Criminal Procedure: In G. P. Boy's (later Justice) Code of Criminal Procedure Volume II at page 320 it is pointed out "As to Madras, see Act V of 1889, Section 4(2), an Act to abolish the office of Coroner of Madras."
In Dr. S. Swaminathan's Code of Criminal Procedure at page 308, Note I under Section 176 states that the section is not applicable to Madras City so far as the area comprised within the ordinary original Civil Jurisdiction of the High Court of Judicature at Madras is concerned and that this section is replaced by Section 4 of Act V of 1889. Sohoni'a Code of Criminal Procedure (12th Edn) page 398, under Section 176, has the following to say:
Section not applicable to Madras City. So far as regards the area comprised within the ordinary original Civil Jurisdiction of the High Court of Judicature at Madras is concerned, this section is replaced by Section 4, Act V of 1889". M. L. J's commentaries on the Code of Criminal Procedure, Third Edition, at page 613:
"The office of the Coroner in the Presidency town of Madras was abolished by Act V of 1889, and Sections 174 to 176 of this Code slightly modified, are in force there."
S. Ranganathaiyar's Code of Criminal Procedure, 7th Edition, page 638:
"This section is not applicable to the City of Madras. Section 4 of Act V of 1889 enacts that inquiry is to be held by the Chief Presidency Magistrate or such Presidency Magistrate as he deputes and power to disinter bodies is given to the commissioner of police or a Presidency Magistrate".
10. In regard to P. S. O. 157, the following constitute the sum total of that order:
GOVERNMENT OF MADRAS
Police Standing Order Volume I-Charges of tortures, etc, against the Police--Procedure--Amendments to Order No. 157--Issued.
G. O. Ms, No. 2854.
Dated the 12th October, 1955
Read the following:--
1. Memorandum No. 0232/55-3, Public (G1-A) Department, dated the 19th October, 1958.
2. G. O. Ms. No. 409, Public (General-A) Department, dated the 22nd March 1954. Read the following:--
1. From the Commissioner of Police, Re. No. 61/F. 1/56 dated the 16th May, 1953.
2. Endorsement of the Inspector-General of Police Re. No. 1233/Crimes/53, dated the 23rd June, 1953.
3. From the Inspector-General of Police, Re. No. 2487/Crimes/53, dated the 12th January, 1954.
The Government direct that the following orders shall be substituted for the existing orders in Police Standing Order 157.
"157. The following procedure is prescribed in respect of charges of torture or of causing death or grievous hurt, against the Police Officials:--
IN THE MOFUSSIL
(1) (a) A Gazetted Police Officer to whom a complaint of such an offence is made or who otherwise hears of such an occurrence should immediately start an informal investigation into the occurrence and should also report the case at once to the Revenue Divisional Officer concerned. Any such investigation should be subject to the instructions in paragraph (2) below,
(b) When information of the commission of any such offence is received by a Police Officer below the rank of Assistant or Deputy Superintendent of Police, he should not make any regular investigation himself but should at once report the case to the Revenue Divisional Officer and the Assistant or Deputy Superintendent of Police to whom he is subordinate and send a copy of such report to the District Superintendent of Police direct.
(2) On receiving information about any such occurrence either from a Police Officer as indicated in paragraph (1) above or otherwise, an informal inquiry into the occurrence should he conducted by the Revenue Divisional Officer to see whether there are grounds for launching a criminal prosecution and to fix the responsibility on individual police officers. There is no objection to a gazetted Police Officer being associated with suck an inquiry but there should be no parallel investigation by the police, referred to in paragraph (1) above or otherwise, and any information gathered by a gazetted Police Officer should promptly be reported to the Revenue Divisional Officer. The Revenue Divisional Officer should complete the informal inquiry in the manner indicated in paragraphs (3) and (4) below.
(3) When a complaint of torture has been filed in the Court of a Judicial Magistrate by the affected party, the Revenue Divisional Officer conducting the informal inquiry under paragraph (2) above should not terminate it but should continue it and arrive at his own findings on the individual responsibilities of each Police Official; such findings should however be kept confidential pending the result of the Judicial inquiry or trial emanating from the complaint. On the completion of such Judicial inquiry, the Revenue Divisional Officer should decide on the further course of action to be followed, in the light of the Judicial decision and take appropriate steps.
(4) When the affected party files no such complaint in the Court of Judicial Magistrate, the Revenue Divisional Officer should complete his investigation and arrive at specific findings as to whether there are grounds to launch criminal proceedings and as to the individual responsibility of each of the Police Officers concerned and submit a report to the Collector. If any prosecution for the offence is considered necessary as a result of such findings, the Collector should issue instructions to the Revenue Divisional Officer for laying a formal complaint, for the offence or offences disclosed, before the Court of the First Class Judicial Magistrate having jurisdiction.
CITY OF MADRAS
(5) The procedure prescribed in paragraphs (1) to (4) will apply mutatis mutandis in respect of the charges of the same nature against the Police in the City of Madras, with the following modifications.
Every reference to the Revenue Divisional Officer in those paragraphs will be construed as referred to the Chief Presidency Magistrate. The report to the Collector referred to in paragraph (4) above need not however be sent by the Chief Presidency Magistrate to any other authority. The Chief Presidency Magistrate may direct any of the Presidency Magistrates to hold the informal inquiry into the occurrence. Such Presidency Magistrate should conduct the informal inquiry and record findings on the questions referred to in Paragraph (2) above in the matter and forward the same to the Chief Presidency Magistrate. If any prosecution for the offence is considered necessary in consequence of these findings, the Chief Presidency Magistrate may issue instructions to the Commissioner of Police for laying a formal complaint in such Court of the Presidency Magistrate he may specify, other than the Presidency Magistrate who conducted the informal inquiry.
(6) When the complaints of torture etc., against the Police subordinatas are received by a Police Officer either in the mofussil or in the city through the media of telegrams from non-official sources or anonymous or pseudonymous petitions and letters or even by vague rumour, the officer receiving the same, should immediately inform the Revenue Divisional Officer concerned in the mofussil and the Chief Presidency Magistrate in the City of Madras of the fact that a complaint has been received and that he is trying to verify the vara-city or authenticity of the information and that the result of the verification will be communicated to the Revenue Divisional Officer or the Chief Presidency Magistrate as the case may be as early as possible. He should not however register the complaint as a First Information Report until after such verification.
(7) It is left to the Revenue Divisional Officer concerned in the mofussil and the Chief Presidency Magistrate in the City either to wait for the result of the Police verification of the authenticity of the report or cause to be made such verification as he considers necessary. The Revenue Divisional Officer or the Chief Presidency Magistrate as the case may be should not however start the informal investigation under paragraph (2) above, before satisfying himself as to the authenticity of the anonymous or pseudonymous communications containing the complaint.
(8) Such cases as are referred to in paragraphs (1) (a) & (b) above should receive special mention in Part I of the Weekly Reports prescribed by Police Standing Order. Volume I, Order No. 147, by both the Assistant or Deputy Superintendent of Police concerned and the District Superintendent of Police in the mofussil and the Commissioner in the City of Madras
(By order of the Governor of Madras)
Y. Sivarama Menon.
Deputy Secretary to Government.
GOVERNMENT OF MADRAS.
PUBLIC (GENERAL-A) DEPARTMENT
G. O. Ms. No. 2349, 5th August, 1957.
Law and Order -- Charges of torture or of causing death or grievous hurt against police offi-cials -- Inquiry under P. S. O. 157 by Presidency Magistrate and Revenue Divisional Officers --Powers to summon witnesses and take evidence on oath -- Investiture with powers under Section 2 of Madras Revenue Inquiries Act, 1893. Read -- the following paper:
G. O. Ms. No. 2854, Home, dated 12-10-1955. ORDER: No. 2349, Public, (Gcneral-A) Dated 5-8-1957.
Before the Judiciary was separated from the Executive, the procedure prescribed in P. S. O. 157 in regard to an inquiry into a charge of torture or of causing death or grievous hurt against a police official, in substance, was that the Sub-Divisional Magistrate concerned should take cognizance of the offence, under the relevant Clause of Sub-section (1) of Section 190 of the Criminal Procedure Code and thereafter inquire into the case and dispose of it according to the provisions of the same Code.
The inquiry was thus a judicial one, in which the Sub-Divisional Magistrate, had powers under the Criminal Procedure Code to summon witnesses, to compel the production of a document or a thing and to examine witnesses on oath.
After separation of the Judiciary from the Executive, the inquiry under P. S. O. 157 has shed its judicial character. The revised P. S. O. 157 issued with O. O No. 2854, Home, dated 12-10-1955 contemplates an inquiry of a non-judicial character by the Revenue Divisional Officer who should arrive at a finding on the point whether there are grounds for launching a criminal prosecution against the police officials concerned and report his findings to the Collector of the district.
If any prosecution for the offence is considered necessary. the Collector will issue instructions to the Revenue Divisional Officer for laving a formal complaint in the Court of the appropriate Judicial Magistrate. In Madras City inquiries into charges of police tortue will be conducted by a Presidency
Magistrate. If it is decided to prosecute the police official concerned the Commissioner of Police will be directed to lay a formal complaint in the Court of a Presidency Magistrate other than the Magistrate who held the inquiry under P. S. O. 157.
The inquiry contemplated by time revised P. S. O. being a non-judicial one, neither a Presidency Magistrate nor a Revenue Divisional Officer has the power to compel the attendance of witnesses before him or take evidence on oath when he conducts the inquiry. In order to remedy this drawback the Government have decided to invest Presidency Magistrates and Revenue Divisional Officers with poweis under Section 2 of the Madras Revenue Inquiries Act, 1893.
In virtue of the powers thus conferred Presidency Magistrates and Revenue Divnl. Officers will have by law, the authority to receive evidence whenever they proceed to conduct an inquiry under P. S. O.
157. The authority to receive evidence also carries with it ipso facto the authority to administer oaths, by virtue of Section 4 of the Indian Oaths Act, 1873.
The following notification will be published in the Fort St. George Gazette:
In exercise of the powers conferred by Section 2 of the Madras Revenue Inquiries Act, 1893 (Madras Act V of 1S93) the Governor of Madras hereby invests each of the Officers mentioned in the Schedule below with power to summon any person to appear before such officer or to produce any document or thing in the possession or under the control of such person, the production of which in the opinion of such officer, is necessary to the conduct of an inquiry into a charge of torture or ot causing death or grievous hurt against any Police Official under Police Standing Order 157.
(i) Presidency Magistrate including the Chief Presidency Magistrate.
(ii) Revenue Divisional Officers.
GOVERNMENT OF MADRAS.
Public (General-A) Department.
G. O. Ms. No. 2666, 12th September, 1957.
Law and Order -- Charges of torture or of causing death or grievous hurt against Police Officials -- Inquiry under Police Standing Order 157 by Presidency Magistrates and Revenue Divisional Officers -- Examination of Police Officials against whom charges has been made and of General Diary and other Police Station records -- Instructions issued. Read the following paper:
G. O. Ms. No. 2854, Home, dated 12-10-1955. ORDER: No. 2666, Public (General-A) dated 12-9-.1957.
In Police Standing Order 157, the Government have laid down the procedure, which Presidency Magistrates and Revenue Divisional Officers should follow, while conducting inquiries into charges against police officials, of torture or of causing death cr grievous hurt, in their official or in their private capacity. The question has been raised whether during the course of such an inquiry, the inquiry officer should examine the Police Official against whom the charge has been made.
The Government have considered the point and they are of the opinion, that, as an inquiry under Police Standing Order 157 is not a full-scale judicial inquiry or trial, there is no obligation on the part of the inquiring officer, to 'Invariably' examine the accused Police Official. The Government however direct that the inquiring officers should specifically consider the need for examining the accused police official in each case and if they decide not to examine the accused, they should record the reasons for the same.
There have been cases in the past where a Revenue Divisional Officer conducting the inquiry under Police Standing Order 157, has allowed the accused Police Officer to cross-examine the complainant. The object underlying the inquiry is to ascertain whether there is sufficient evidence tor prosecuting the accused Police Official, in a Court of Law.
In other words proceedings under Police Standing Order 157 is more or less in the nature of an investigation with this difference, viz., that the investigation, so called, is conducted not by a police officer but by a Magistrate of the First Class. The overnment are of the view that the accused police official should not be allowed to cross-examine the complainant during the inquiry.
Since a gazetted Pob'ce Officer will be associated with the inquiry, any point in favour of the accused police officer will not be lost sight. The Government therefore direct that in future police officials should not be allowed to cross-examine the complainant.
It happens, not infrequently, that the death of a person in police custody or of torture or grievous hurt sustained by a person while he is under such custody, is the result of wrongful confinement of the person concerned. It is essential that the inquiring officer should consider all pieces of evidence for and against the police officer.
The Government direct that whenever a Presidency Magistrate or a Revenue Divisional Officer conducts an inquiry under Police Standing Order 157, he should invariably examine the General Diary and other Police Station records, relevant to the case before arriving at his finding.
By Order of the Governor.
W. R. S. Salthianadhan.
11. I must point out here that the Madras Police Standing Orders published by authority are comprised under three heads; Orders marked with asterisk are issued by the Inspector General of Police under Section 9 of the Madras District Police Act, 1859 with the approval of the Government; Orders and Amendments printed in hold types are verbatim reproductions from orders of the Government or of any higher authority or from Codes and Manuals and other departments of the Government.
12. Having now indicated the contents of Section 176 of the Code of Criminal Procedure as applicable to the City of Madras and the executive directions issued for effectuating the enquiry under that section and constituting P. S. O. 157, I shall before proceeding to examine the contentions of the learned advocates for the petitioners examine the scope of Section 176.
13. The scope of Section 176, Criminal Procedure Code, has now to be considered. The object of Section 170 is that an enquiry into a suspicions death should not depend merely upon the opinion the police may form but that there should be a further check by enabling a Magistrate to hold an independent enquiry: In re Laxminarayan Timmanna Karki, AIR 1928 Bom 390.
In this connection it has to be noted that the object of Section 174, Criminal P. C., is merely to ascertain the cause of death; hence the enquiry un-der that section should be confined to that purpose only and should not be extended for the purpose of finding out the persons who caused the death Chaman Lal v. Emperor, AIR 1940 Lah 210.
In ILR 3 Cal 742, a bench of the Calcutta High Court (Markby and Prinsep JJ.), observed at pages 750-751 as follows:
"..... I think that it may be fairly argued that prima facie when a Magistrate holds a judicial enquiry and has power to take evidence, we should expect that it was intended that some result should be arrived at. But though that is so at first sight, I think, on further consideration, it is by no means clear, even upon a general view of the Act independently of the exact language ot the section itself, that that was the intention of the legislature.
The object of these enquiries may be three-fold. The object may be to claim any alarm that had been created in the mind of the public on the occurrence of a violent or unnatural death, and to allay any unfounded suspicion; or the object may be to put in force the aw gainst a particular individual; or it may be merely to gain information to be used by the authorities according to their discretion.
Now, looking at the general character of this section and the sections which precede it, I cannot myself see that, merely for the purpose of putting the law in force against particular individual, there was any necessity for this section at all. As far as I can see, the powers of a Magistrate under law, if he suspects any person of having committed any particular offence, are ample without having any recourse to this section.
Therefore the enquiry, or inquest as it is sometimes called, roust be to inform either the officers of Government or the public at large as to what has really occurred or is suspected to have occurred............
In In Re Laxminarayan Timmanna Karki, AIR 1928 Bom 390, a Bench of the Bombay High Court (Mirza and Patkar JJ.) held that the proceedings of a Magistrate under Section 176 are an "inquiry" as defined by Section 4 (1) (k) and a "judicial proceeding" as defined by Section 4 (1) (m) and that the High Court has power to revise proceedings of a Magistrate under Section 176, either under Section 435 or Section 439, apart from its inherent powers under Section 561-A, Criminal P. C.
In Surendra Nath v. Police Sergeant. AIR 1932 Cal 121, it was held that an independent inquest by another Magistrate cannot take the place of enquiry or investigation under Section 202 and consequently it is illegal For a Magistrate to postpone issuing process upon a complaint before him in order to enable him to obtain the result of inquest held by another Magistrate and subsequently to dismiss the complaint on result of such inquest,
In Emperor v. Mahomed Yusuf, AIR 1933 Bom 479 (1), Beaumont C. T., held that an inquiry before the Coroner, although it may be a judicial proceeding, is not a proceeding between the prosecutor and the accused and that the proceedings before the Coroner are merely an inquiry into the circumstances leading to the death of the person whose death Is under inquiry, and it is impossible to say that the Crown is a party to those proceedings, even if it can be said that the accused is a party on the ground that he was during those proceedings a suspect and that hence the evidence given by a witness before a Coroner is not admissible under Section 33 of the Indian Evidence Act, if such witness dies prior to enquiry before Magistrate.
In Tn re Veerappan', AIR 1944 Mad 37. decided by a Single Judge of this Court, it wag held that where a Magistrate holds an inquiry under Police Order No. 157, revision lies against an order relating to such inquiry when statements of witnesses are taken on oath. In this case the facts were: The petitioner sent a telegram to the Assistant Superintendent of Police oi Hosur complaining that his brother and himself were tortured by the Penna-garam Police.
The ^Assistant Superintendent forwarded the telegram to the Sub-Divisional Magistrate of Dharma-puri as required by police order 157 for inquiry. The Sub-Divisional Magistrate conducted the inquiry, held that the allegations were not proved and ordered that no action be taken. It was to revise this order that the petition was filed before the Additional District Magistrate, who held that the inquiry by the Magistrate under police Order 157 was only a departmental one, that no revision lay against an order relating to such inquiry and dismissed the petition.
This decision has to be construed as a revision against the order made under Section 176, Criminal P. C., though it has been stated in the head-note of the report that it was a revision against P. S. O. 157 on account of the fact that P. S. O. 157 is only an executive instruction for carrying out the provisions of Section 176, Criminal P. G. Under the Code of 1898, as it stood before the amendment of 1923 proceedings under Section 176, Criminal P. C., could not be revised.
It was, however, held in numerous decisions that where the Magistrate purporting to act under Section 178 acted really without jurisdiction and not in .conformity with the requirements thereof, the proceedings were really not o"e within that section and could consequently be revised under Section 435, Criminal P. C. There was also a difference of opinion as to whether a Chartered High Court could Interfere with an order under Section 176, Criminal P. C., by virtue of its powers of superintendence under Section 107 of the Government of India Act, 1915.
Sub-section (3) of Section 435 has been omitted by Act XVIII of 1923, and it is now clear that such proceedings are open to revision. Proceedings under Section 176 were not proceedings under the unamend-ed Section 435. But now with the repeal of Clause 3 of that section they are -- see A.I.R. Commentaries on the Criminal Procedure Code, Fifth Edition, Note II. Point 8, under Section 435, Sir John Woodroffe, Criminal Procedure in India page 196; B. B. Mitra, Code of Criminal Procedure, twelfth edition, page 669 Citing 29 Cri LJ 1063 at p. 1066: (AIR 1928 Bom 390 at p. 394) -- Laxmi Narayanan (Supra). It is not necessary therefore to canvass the correctness of this decision further.
14. Bearing in mind the content and scope of Section 176, Criminal P. C. and P. S. O. 157, I shall examine the contentions of Mr. Nambiar under two heads viz., the nullify of the proceedings before the Fifth Presidency Magistrate resulting in the filing of the complaints in that Firstly, P. S. O. 157 con-stitutes a violation of the principles of the Criminal Procedure Code and Secondly, in that P. S. O. 157 constitutes a violations of the Fundamental Rights guaranteed under Articles. 14, 20(3) and 21 of *he Constitution.
15. The contention of the learned advocate Mr, Nambiar that P. S. O. 157 constitutes a violation of the principles of the Criminal Procedure Code is based upon a misapprehension of the scheme of that code in regard to initiation of proceedings thereunder.
16. The Criminal- Procedure Code envisages three modes of initiation of proceedings which are embodied in Section 190.
17. Any aggrieved person may seek to set the Criminal Law in motion by filing a complaint before a Magistrate. A complaint is defined in Section 4(1) (h) as meaning the allegation made orally or in writing to a Magistrate with a view to his taking action under the Code that some person, whether known or unknown has committed an offence, but! it does not include the report of a Police Officer.
The general rule is that any person having knowledge of the commission of an offence may set the law in motion by a complaint even though he is not personally interested or affected by the ottence or has no personal knowledge of it. A complaint need not be in writing but may be Oral. It need not contain the particular provision of law, such as the section of the Indian Penal Code but must only contain a statement of the facts relied on as constituting the offence and it is for the Magistrate receiving the complaint to determine, on the facts staled, what offence is prima facie made out.
A report of a Police Officer is not included in the term "complaint" but any report which a Police Officer makes in a non-cognizable offence to a Magistrate with a view to action being taken on it, may amount to a complaint as has been held by all the High Courts now and the Police Officer can be treated also as the complainant.
18. The other mode of initiating proceedings is information to the Police of the commission of a cognizable offence in which case the Police have to register it and start investigation. When information as given to a Station House Officer of the Commission of a non-cognizable offence within the limits of his station, the procedure is that he shall enter the substance of such information in a book kept in the station usually called the Station Original Diary and refer the informant to the Magistrate as the offence is a non-cognizable one.
In such cases it is the intention of the Legislature that aggrieved persons should be allowed direct access to the Magistrate without the intervention of the Police. A Station House Officer is empowered to investigate any cognizable case without the order of the Magistrate having jurisdiction over the local area. The power conferred by Section 159 is in the most general terms and no Magistrate has power to restrain the Police in their investigation.
It has also to be noticed that if an aggrieved party in a cognizable offence goes straight to the Magistrate he cannot refuse to exercise jurisdiction simply because he might have had recourse to the Police. The Magistrate has also powers under Subsection (3) of Section 156 or under Section 202 to call in the assistance of the Police in having an investigation made. The procedure to be followed by the Station House Officer is laid down in Section 157.
He shall forthwith send a report of the same to the Magistrate empowered to take cognizance of the offence for the purpose of ensuring proper supervision and control of the Magistrate over the Police. With the sending of the report to the Magistrate begins the real connection between the Police and the Magistrate which continues till the submission of the charge-sheet or the referred charge-sheet.
On the receipt of the former the Magistrate proceeds with the enquiry or trial and on the receipt of the latter he awaits the informant to appear before him and claim a judicial enquiry or pass orders agreeing with the Police refusing to proceed further in the matter.
19. In addition to these two modes of initiation of proceedings, we have another in which there > has got to be a Balancing between the interests of the aggrieved on the one hand and the accused on the other hand. These are provided for in those sections where the Magistrate cannot take cognizance except on the complaint of some person aggrieved, e. g., in the case of adultery by the husband; in the case of offences against public justice, on the complaint of the public servant or with the previous sanction of Government in the case of offences under the Indian Arms Act.
In the case of deaths resulting from torture in Police custody the Legislature has had ,to balance the interests of the public as against those of the agency for maintaining law and Order. One consideration is lhat it is very difficult for aggrieved persons in such cases to complain and substantiate what happened within the closed doors of a Police Station and the second is that malefactors and their relatives are easily prone to make false accusations. This is well brought out in the following extract from Prof, Lewis Mayers' "The American Legal System" (1955) (Harper and Sons N. V.) at pages 103-109:
"The methods used by the police to compel disclosure of information or confession by the prisoner may range from mere prolonged and repeated questioning to physical brutality or more refined forms of torture, such as keeping the prisoner awake for unendurable periods. To all unlawful practice of this type the term 'the third degree' is commonly applied.
The extent to which it is resorted to, of course, varies with the traditions and practices of the particular police force involved, as well as with the type of suspect involved and, doubtless to an extent in some parts of the country, with the race of the suspect.
In the nature of the case, an accurate picture of the prevalence and character of the use of the third degree is almost impossible to obtain. The unlawful acts of the police in this field arc carried out for the most part with due precaution against the possibility that the suspect may be able to establish a charge of physical violence.
Even were he able to establish the facts, he is unlikely to wish to institute an action for damages; and if he does he will encounter the unwillingness of jurymen to return a substantial verdict against a police officer whom they believe to have been engaged in an honest, though perhaps extra legal, attempt to convict a malefactor.
Indeed the un formulated recognition, by the man in the street, of the difficulties which the police encounter in dealing with the professional criminal, if they confine themselves to strictly lawful methods, is doubtless responsible for the tolerance with which the use of unlawful methods by the police is so widely regarded.
That such methods, once sanctioned, are likely to be used against the innocent as well as the guilty, and as well against the unfortunate citizen who may by chance find himself wrongly suspected by the police as against the professional burglar, is all too casually overlooked."
20. Section 176, Criminal P. C., implemented by P. S. O. 157 represents therefore the intiation of proceedings after passing the material through a double-sieve as it were in order to ensure that there shall be no hushing up and a Magistrate instead of a Policeman is made to investigate thereby protecting the public interest and this material collected in the City of Madras is submitted to the highest ranking Metropolitan Magisterial authority, viz., the Chief Presidency Magistrate and it is for the Chief Presidency Magistrate to decide whether he should take cognizance or not and if he takes cognizance, the machinery for initiating proceedings for him is the Commissioner of Police being placed under his or-ders to lay a complaint.
In other words, Section 176, Criminal P. C., is the root and P. S. O. 157 is the fruit of this double safeguard provided in the interests of the public and the concerned Police Officers. I need not point out that this third mode is without prejudice to the first and the second and it would be still open for a private aggrieved party, like the mother of the deceased Arumugham in this case, to initiate proceedings and also for the Commissioner of Police to initiate proceedings on his own. In fact the executive instructions provide for such possibilities and against overlapping.
21. The all-comprehensive Section 190, Criminal Procedure Code, enumerates how a- Magistrate may take cognizance of an offence upon receiving a complaint or a charge-sheet or upon information received from any person other than the Police Offi-cer or upon his own knowledge Or suspicion that an offence has been committed. The present com-plaints would fall either under Section 190 (a) or Section 190 (c).
22. Viewed in this light the initiation of proceedings in this case is by one of the three prescribed methods for initiating proceedings and there is no repugnancy between it and the provisions of Sections 5 and 156 to 173 Cr. P. C. The fact finding enquiry held by the Sixth Presidency Magistrate is in accordance with Section 176 Cr. P. C. It was not necessary, at least so far as the Metropolitan city of Madras is concerned, where the enquiry under Section 176 is made by the Chief Presidency Magistrate or by a Magistrate deputed by him, to be armed with powers under Section 2 of the Madras Revenue Enquiries Act, 1893.
It may probably be different in the mofussil in the case of enquiries being held by Revenue Divisional Officers who have not been invested with Magisterial powers. In this State the Revenue Subordinates are ex-officio Magistrates of various classes. Therefore, the question of empowering the Chief Presidency Magistrate or the Magistrate deputed by him with powers under Section 2 of the Madras Revenue Enquiries Act, 1893 does not arise. Section 176 Cr. P. C. itself arms them with sufficient powers for receiving evidence.
In an enquiry held under Section 176 by the Chief Presidency Magistrate or the Magistrate deputed by him, the drawbacks stressed by the learned Advocate Mr. Nambiar as being appurtenant to an enquiry under P. S. O. 157 retailed in the petitioners' affidavit reproduced above, do not arise. The problem of questioning under Section 343 Cr. P. C. does not arise at this stage. In this enquiry also no Police Officer can be compelled to incriminate himself by reason of his being entitled to invoke the privilege under Section 132 of the Evidence Act, apart from the fact that at this stage of collection of materials in fact finding the invitation to give evidence if he chooses to do so would only be eagerly availed of in order to show up the falsehood of the accusation or the removal of any suspicion that might have been thrown on the Police Officers connected with the Station.
This privilege viz., an opportunity to explain that the accusation or suspicion is unfounded is conferred upon the Police Officer because in the event of a report being made, it would be wholly unfair to do so without giving an opportunity to aft concerned persons to come out as clean as a hound's tooth, and which Is in pursuance of our maxim lhat no one shall be condemned unheard.
23. The net result of this analysis is that the enquiry conducted under Section 176 Cr. P. C. read with P. S. O. 157 does not offend the other sections of the Cr. P. C. and is founded upon the immutable principles of truth and justice.
24. Equally devoid of substance is the contention that these proceedings constitute a violation of Articles 14, 20(3) and 21 of the Constitution.
25. Article 14 of the Constitution states that the State shall not deny to any person equality before the law, or the equal protection of the laws within the territory of India. The following extract from Sri N. R. Raghavachari's Constitution of India sums up the well-settled principles for application of this Article:
"That all citizens are equal before the law is a fundamental of every civilised constitution, and that is what has been given expression to in Article 14. Article 14 simply means that the State shall not state to any particular person that the law will treat him as an inferior to another when all the relevant considerations are equal as between them. The clause regarding the equal protection of the laws in the American Constitution has been the subject of numerous rulings of the Supreme Court of the United States which may be summarised as follows:
As between two persons similarly circumstanced with equal qualifications and credentials, the law shall not discriminate in favour of one against another; nor is it a valid law which works harshly upon an individual or group of individuals in comparison with another individual or group, when such differential treatment sounds in or smacks of a partiality on the part of a State between citizens and citizens on improper considerations.
Thus so far as Indian Union is concerned, the State shall not make a law to the detriment of one person with a view to favour another, or pass an order which betrays an intention on the part of the powers-that-be to treat particular persons more favourably than others, which would nullify the equal protection of laws vouchsafed under this article.
Thus, no person on the ground that he belongs to this or that community, or on the ground that he comes of this or that stratum of society, can legitimately claim a superiority and a favoured treatment, and whatever justification there might have been for any such claim in the hoary past, when due to other conceivable considerations necessitated by the then conditions of society, such treatments might have been justified, those considerations have absolutely no place in a modern democratic State in which every man is equal before the law". (Page 37).
"The prohibition against the denial of equal protection of laws does not require that the law should have an equality of operation on persons as such, hut on persons according to a relation. Distinguishing, selecting and classifying objects of legislation within a wide range of discretion, and according to the needs and circumstances of society from time to time are both necessary and permissible, provided the distinction is based on some reasonable and intelligible ground. Reasonable classifications made and imposed by law do not amount to a denial of equal protection.
All that can be said is, that the classification must not be arbitrary capricious or colourable selection which no reasonable man would make, but must rest upon some difference which bears a reasonable and just relation to the act in respect oi which the classification is made. As Justice Douglas observed in Skinner v. Oklahoma (1942) 316 US 535 'Under our constitutional system the States in determining the reach and scope of particular legislation need not provide abstract symetry. They may mark and set apart the classes and types of problems according to the needs and as dictated and suggested by experience'.
A classification must not be arbitrary, artificial or evasive, and there must he a reasonable, natural and substantial distinction in the nature of the class or classes upon which the law operates. In respect to such distinctions, a legislative body has a wide discretion, and an act will not be held invalid unless the classification is clearly . unreasonable and capricious". (page 38).
These principles show that in the instant case the State has not denied these petitioners either equality before law or equal protection of laws as between persons similarly, circumstanced as the petitioners there is no discrimination. Section 176 Cr. P. C. implemented by the executive instructions embodied in P. S. O. 157 is based upon reasonable classifica-tion bearing a reasonable and just relation to the act in respect of which the classification is made.
That classification is based upon the objects set out in ILR 3 Cal 742 by the Bench of the Calcutta High Court. It cannot be stated therefore that the particular procedure prescribed under Section 176 Cr. P. C. implemented by P. S. O. 157 and in regard to which all persons similarly circumstanced like the petitioners are equally amenable is an infraction of Article 14 of the Constitution.
26. Article 20(3) of the Constitution which states that no person accused of any offence shall be compelled to be a witness against himself, is based on the maxim nemo tenetur prodere accussare-seipsum (no man is bound to accuse himself), a maxim which received prominency in England in the sixteenth century as a protest against the inquisitorial methods of the ecclesiastical Courts. The present clause follows the language of the Fifth Amendment of the American Constitution, but the rule laid down in our Constitution is narrower than the American rule as expanded by interpretation,
Thus, the words "accused of an offence" make it clear that the privilege under our Constitution is confined to an accused in a criminal proceeding and does not apply to witnesses or to civil proceedings. It may be noted in this connection that the existing Indian Law relating to witness differs from the English Law. Under the English law, not only an accused in a criminal proceeding, but a witness in any proceeding is protected from answering questions which may tend him to a criminal prosecution, or any other penalty or forfeiture.
But in India, a mere witness to any proceeding has no such protection. Under Section 132 of the Evidence Act, no witness is excused from answering any question on the ground that it would expose him to criminal liability or penalty or forfeiture; but at the same time the law gives him indemnity from any criminal liability for such evidence except for perjury. It should be noted that the privilege conferred by Article 20(2) of the Constitution will not affect the existing law relating to witnesses.
The expression 'accused of an offence' also indicates that the privilege is confined to a proceeding before a criminal court under the Criminal Procedure Code where a person is charged with having committed an act which is punishable under the Indian Penal Code or any special or local law. The Court issues process against the accused if it does not dismiss the complaint under Section 203 Cr. P. C. A person against whom no process has been issued is not an accused. The word "accused" in the present clause will, accordingly, mean the accused who is on trial in the proceeding to which the provision is sought to be applied.
The word 'compelled' suggests that the prohibition is against compulsion. Thus, the above constitutional bar would not affect the existing law such as the provisions contained in Sections 337 and 339 of the Cr. P. C. An accused can waive his privilege in lieu of pardon or immunity. It is also open to an accused by reason of the recent amendment to Section 342 Cr. P. C. and Section 5 of the Oaths Act, to offer himself as a witness for the defence in conformity with the general proposition enacted in Section 118 of the Evidence Act that all persons shall be competent to testify.
It will be remembered that in England under the Criminal Evidence Act, 1898, as accused is competent to be a witness on his own behalf. The only inhibition is that an accused cannot be compelled to testify and the failure of the accused to testify cannot be commented upon in any case.
Similarly, under Section 342 Cr. P. C. an accused at the close of the prosecution can be invited to explain the circumstances in the evidence appearing against him and if he takes advantage of that invitation his answers can be taken into consideration. Therefore, the freedom that is guaranteed under Article 20(3) is from his being compelled to be a witness against himself against his will, in short, testimonial compulsion (See Basu's commentary on the Constitution of India, second edition p. 149 and fol-lowing; A. S. Chaudhri, Constitutional Bights and Limitations, volume I, page 729 and following.)
27. In the instant case it is doubtful whether in a fact finding enquiry of this nature this Article will apply. Sir John Woodroffe in the Code of Criminal Procedure page 196 points out that the form of an enquiry under Section 176 is directed more to elucidate the facts of an unnatural death before there is reasonable suspicion of the commission of an offence and that when such grounds do exist the enquiry comes under another portion of the Code (per Prinsep J. at p. 753 in ILR 3 Cal 742). But it is not necessary for me to canvass this position further and I shall assume that Article 20(3) applies. What follows?
In this case the report of the Magistrate clearly shows that it was made clear to these Police Officers that ft was open to them to give evidence or not, The Magistrate has shown his awareness of Article 20(3) and the constitutional freedom against testimonial complusion and there is no reason to doubt that the Magistrate has indicated tin's awareness to the Police Officials of J-3 Police Station. Secondly, it is equally arguable whether these petitioners could be considered as accused at this stage because the object of the enquiry was to collect materials regarding the blameworthy conduct, if any, or all or some of the Police Officials of J-3 Police Station.
It is unnecessary to pursue this matter further because I shall proceed on the assumption that as against these particular Police Officers there were averments which would make them suspected persons at that stage. In view of the invitation given to them to testify or not, there can be no question of testimonial compulsion. That there was no testimonial compulsion is further evident from the fact that all these petitioners are experienced Police officials who knew full well that under Section 132 of the Evidence Act they could claim privilege.
The proof of the pudding is after all in the eating. In this case none of the petitioners has given any evidence incriminating himself, apart from the fact that their statements cannot be used as evidence against them, not to speak of the report made by the Magistrate being equally inadmissible in subsequent proceedings. Therefore, Article 20(3) is being invoked in vain as well as prematurely. That is why in Dalmia's case it is mentioned in the judgment;
"Lastly a point is raised that the notification is bad because it violates Article 20(3) of the Constitution. It is frankly stated by the learned counsel that this point is rather premature at this stage and that he desires to reserve his client's right to raise it in future".
28. Then finally turning to Article 21 of the Constitution which states that no person shall be deprived of his life or personal liberty except according to procedure established by law, this follows the Fifth Amendment of the American Constitution which declares "No person shall be deprived of his life, liberty or property, without due process of law," with essential variations as pointed out inGopalan v. State of Madras, .
This Article is not intended to be a constitutional limitation upon the powers of a Legislature otherwise conferred by the Constitution. Its object is simply to serve as a restraint upon the executive so that it may not proceed against the life or personal liberty of the individual save under the authority of some law and in conformity with the procedure laid down therein, which again must be in conformity with Article 22.
The expression 'deprived of life' will take in also mutilation etc.
The term 'personal liberty' has been construed as follows: Liberty is a very comprehensive term and let alone it would include not merely freedom to move about unrestricted but such liberty of conduct, choice and action as the law gives and protects. But by qualifying the word liberty by the word 'personal' the import of the word liberty in Article 21 is narrowed down to the meaning given in English law to the expression liberty or the person' or 'personal freedom' i. e., the right not to be punished, imprisoned or coerced except according to the procedure established by law.
The word 'deprived' has been construed as total loss of personal liberty which is sought to be protected by Article 21 as distinguished from restriction or partial control of the right to move freely which is referred to in Article 19(1)(d) read with Clause (5) of that Article.
In regard to the phrase 'established by law,' by the use of these words our Constitution accepts the English principle of supremacy of the law, in preference to the American doctrine of judicial review of legislation. Liberty, according to this view, is a liberty confined and controlled by law. Law in this expression means state made or enacted law and not the general principles of natural justice. Patanjali Sastri, J. (as he then was) in Gopalan's case, has stated :
"Procedure established by law, may well be taken to mean what the Privy Council referred to inEmperor v. Benoari Lal, AIR 1945 PC 48 at p. 52 as the ordinary and well-established criminal procedure: that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure, in the country."
This procedure established by law means, the manner and form of enforcing the law. Article 21 simply means that you cannot deprive a man of his personal liberty, unless you follow and act according to the law which provides for the deprivation of such liberty. Our constitution does not guarantee the right to any particular procedure for the deprivation of life or personal liberty besides those contained in Article 22. Courts have no power to invalidate a legislation on the ground that the procedure provided therein is arbitrary or unreasonable ac-cording to them. There is under our constitution no guarantee of any right to trial in the ordinary courts of law or the indefeasible right of access to the Ordinary courts.
Bearing these principles in mind, if we examine Section 176 Criminal Procedure Code, implemented by the effectuating provisions in P. S. O. 157 we find that there is no room for the application of Article 21 of the Constitution either.
29. The final point remaining to be examined is whether these petitions are not amenable to the writ of Certiorari as contended by the learned Advocate-General.
30. Article 226 of the Constitution of India confers on the High Court the right to issue high prerogative writs of certiorari, prohibition etc. The names of these writs are in Latin for the English courts were issuing them in Latin when they originally came into existence. 'Certiorari' means 'to be certified,' while 'prohibition' has the same sense in English as well. In England the writ of certi-orari is an ancient writ frequently employed both on the common law side and on the equity side of the superior courts.
It is the process by which the King's Bench Division, in the exercise of its superintending power over inferior jurisdictions, requires the Judges or officers of such jurisdictions, to certify or send proceedings before them into the King's Bench Division, whether for the purpose of examining into the legality of such proceedings, or for giving further or more satisfactory effect to them than could be done by the court below. This writ is available for the removal of judicial act, or quasi-judicial act of any inferior court or jurisdiction.
The Privy Council described the nature of certi-orari in Ryots of Garabandho v. Zemindar of Para-lakimedi, AIR 1943 PC 164, as follows:
"The ancient writ of certiorari in England is an original writ which may issue out of a superior court requiring the record of the proceedings in some cause or matter pending before an interior court should be transmitted into the superior court to be there dealt with. The writ is so named because in its original Latin form, it required that the King should 'be certified' of the proceedings to be investigated and the object is to secure by the exercise or the authority of superior court, that the jurisdiction of the inferior tribunal should be properly exercised. This principle has been transplanted to other parts of King's Dominions and operates within certain limits in British India."
31. A prohibition is a writ issuing properly only out of the court of King's Bench, being the King's prerogative writ; but, for the furtherance of justice, it may now also be had in some cases out of the court of Chancery, Common Pleas, or Exchequer, directed to the Judge and parties to a suit in any inferior court, upon a suggestion, ' that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but the cognisance of some other court.
32. Atkin, L. J. has explained the nature and scope of the writs of certiorari and prohibition in Rex v. Electricity Commrs. (1924) 1 KB
171. In an oft-quoted passage he observed as follows (p. 204).
Both writs are of great antiquity, forming part of the Process by which the King's Courts restrained Courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or order of the Court to bo sent up to the King's Bench Division, to have its legality inquired into, and if necessary to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be and would not be recognised as Courts of Justice. Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs".
Referring to the distinction between certiorari and prohibition the following observations are made at page 206 :
"I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction."
Conversely, if tbe proceedings could have been stopped by writ of prohibition, they can be quashed by certiorari if not prohibited earlier. When the subject-matter is within the jurisdiction of a tribunal, prohibition will not be granted, but certiorari may be granted, for instance, to have it removed to a higher Court when complex and difficult questions are involved.
33. The requirements for a writ of certiorari or prohibition are the same in (a) England, (b) Australia, (c) United States of America and (d) India:
Halsbury's Laws of England (Simonds Edition), Vol. 11, p. 55 (Para 114) has the following to say:
"The orders of certiorari and prohibition will lie to bodies and persons other than courts stricto sensu. Any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, is subject to the controlling jurisdiction, of the High Court of Justice, exercised by means of these orders. It is not necessary that it should be a court : an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of, and are not in accordance with the practice of a court of law. It is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition. A body may be under a duty, however, to act judicially (and subject to control by means of these orders) although there is no form of lis inter partes before it: it is enough that it should have to determine a question solely on the facts of the particular ease, solely on the evidence before it, apart from questions of policy or any other extraneous considerations....." Again, at pages 134-135 (Paragraph 251):
"Certiorari will issue to quash the determinations of any body of persons having legal authority to determine questions affecting the right of subjects and having the duty to act judicially. Certiorari lies only in respect of judicial, as distinguished from administrative acts. A proceeding may be a judicial proceeding, and subject to certi-orari although it is subject to confirmation or approval and the approval has to be of the Houses of Parliament....."
What is meant by Court is discussed in title Courts, Volume 9 pages 342 and foll, of Hals-bury: (1924) 1 KB 171. at pp. 204-205; R. v. Manchester Legal Aid Committee; Ex parte R. A. Brand and Co., Ltd., (1952) 2 QB 413, at p. 425: (1952) 1 All ER 480 at p. 487; See also R. v. Minister of Health; Ex parte Davis, (1929) 1 KB 619; R. v. Minister of Health; Ex parte Villiers, (1936) 2 KB 29: 1936-1 All ER 817; Nakkuda Ali v. Jaya-ranto, (1951) AC 66 at p. 75; R.v. London County Council; Ex parte Entertainment Protection Association Ltd., (1931) 2 KB 215 at pp. 233-234; per Scrutton L.J.; R. v. City of Westminster; Ex parte Grosvenor House (Park Lane) Ltd. (1941). 1 KB 63 ; (1940) 4 All ER 132; R. v. Statutory Visitors to St. Lawrence's Hospital, Caterham, Ex parte Pitchard, (1933) 2 All ER 766.
Schwart in his "Law and the Executive in Britain (1949 Edition) at p. 160 states:
"It will be recalled that both certiorari and prohibition 'in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice'. And even today the writs are not available against 'other than judicial acts.' This requirement has, however, been very liberally construed. Certiorari, said Fletcher Moulton, L. J., in an important case, 'is frequently spoken of as being applicable only to judicial acts,' but the cases by which this limitation is supposed to be established show that the phrase 'judicial act' must be taken in a very wide sense, including many acts that would not ordinarily be termed 'judicial.' As further explained by Scrutton, L. J.: 'It is not necessary that (the body reviewed) should be a Court in the sense that this Court is a Court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition and it is not necessary to be strictly a Court; if it is a tribunal which has to decide rights alter hearing evidence and opposition, it is amenable to the writ of certiorari ....."
Signer Galeoti in his comparative study under the title "The Judicial Control of Public Authorities in England and in Italy" at p. 66, has the following to say:
"Again both the English and the Italian system know a method of judicial control leading to the effect of setting aside, or quashing an administrative decision. The prerogative order of certiorari is the usual weapon to quash an unlawful act in England, whereas the decree of annulment by the 'Consiglio di Stato' has the same result in Italy. Both these methods are subject to limits in their scope, though arising from a different source; certiorari is subject to the condition that the decision to which it applies be one of a quasi-judicial character; the foundation and the extent of this category are considered elsewhere; but it may be safely said that, in spite of a rather large interpretation by the Courts of such a category, the scope of certiorari does not cover all kinds of administrative acts; those acts which are described as 'ministerial' and (semble) the acts 'where the administration may act in summary fashion without notice and bearing' are not amenable to this method."
Wynes in his "Legislative, Executive and Judi-cial Powers in Australia" (Second Edition) at p. 606 states that for the issuance of the writs of prohibition which are issued at an earlier stage than certiorari the leading statement of principle is found in (1924) 1 KB 171, and that "the writ issues not of course, but, subject to certain limitations, goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shews satisfactorily that the tribunal is about to act to his detriment in excess of its authority". He cites the Australian decisions R. v. Connell (1944) 69 CLR 407 at p. 429 and Reg v. Wright (1955) 29 ALJ 547 for the proposition that writs of prohibition lie only in respect of acts to be done judicially and that acts which are ministerial in their nature or administrative only or amount to the exercise of a subordinate legislative power, are not subject to the writ, even though what is done involves an excess of authority.
Nicholas in his Austrialian Constitution (Second Edition) at p. 383 refers R. v. Nickman (1945) 70 CLR 598 at p. 611 and R. v. Drake-Brockman (1943) 68 CLR 51, for the proposition that prohibition goes wherever officers of the Commonwealth, having legal authority to determine questions affecting the rights of subjects and having that duty to act judicially, act in excess of their legal authority.
(c) United States of Amcrica.
Ferries in his "Extraordinary Legal Remedies" at "p. 181 points out that at common law certiorari lies only to review judicial, and not legislative, or discretionary, or ministerial acts, or to review the case on the merits, that the difficulty is in determining the character of the action and that judicial action is an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered. The law in the United States of America is stated by Ferris and Ferns at p. 178 as follows:
"The object of the writ is to curb excess of jurisdiction, to keep inferior courts and tribunals within their bounds. Its purpose is to bring for review before a superior court the proceedings and judgments of inferior courts and tribunals clothed with authority to act judicially, where no appeal or other adequate remedy is available, and is appropriate in all such cases where the substantial rights of an applicant have been so far invaded as to prejudicially affect him if the proceeding or judgment remains unreversed....."
The case law in India has been expounded in the following standard taxt-books : A. T. Markose's "Judicial Control and Administrative Action in India" (M. L. J. Publication) Chap. 10, p. 287 and following, "Province of writs of certiorari and prohibition involving classification of administrative action for the purpose of judicial control;" A. S. Choudhri's High Prerogative Writs," Volume I, Chapter V, (page 160 and following), "Prohibition and Certiorari, when issued," K. Venkoba Rao's "Law of Writs" in India, Chapter VI, (p. 324 and following), Certiorari; Prem's 'Law of Habeas Cor-cus, Certiorari, Mandamus and Emergency Legislation," Chapter XL (p. 247 and following) Certiorari; Aggarawala's "Fundamental Rights and Constitutional Remedies" Vol. II, p. 938 and following; and G. C. Vcnkata Subbarao's "Prerogative Writs and Fundmental Rights," First Edition, p. 101 and following.
The substance of these_ expositions can be stated thus: The writ of certiorari is drawn up for the purpose of enabling the High Court to control the action of inferior Courts and to make it certain that they shall not exceed their jurisdiction. The writ is intended to bring into the High Court the decision of the inferior tribunal, in order that the High Court may be certified whether the decision is within the jurisdiction of the inferior Court. There has been a great deal of discussion and a large number of cases extending the meaning of "Court." It is not necessary that it should be a Court in the sense in which the High Court is a Court and it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition and it is not necessary to be strictly a court; if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari. The four conditions under which a writ of certiorari will issue are: whenever any body of persons, firstly having legal authority, secondly, to determine questions affecting the rights of subjects, thirdly, having the duty to act judicially and fourthly act in excess of their legal authority, they are subject to the controlling jurisdiction of the High Court exercised in these writs of prohibition and certiorari.
34. In this connection the following important decisions of the Supreme Court, Province ot Bombay v. Khushaldas, ;
Venkataraman v. Union of India, ; Brajanandan Sinha v. Jyoti Narain, . Ramkrishna Dalmia v. S. R. Tendolkar; C. A. Nos. 455 to 457 and 656 to 658 of 1957: and of the Nagpur High Court in M. V. Rajwade v. Dr. S. M. Hassan, ILR 1954 Nag 1 : (AIR 1954 Nag 71) can also be usefully re-terred to.
On the foot of these principles set out above, it was held in these decisions that the person inquiring into was not a Court and that the proceeding was not a judicial proceeding and that the consequences attached to judicial and quasi-judicial proceedings of a Court or tribunal do not arise.
The Supreme Court has held in that when the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. On this basis it was held by majority, reversing P. V. Rao v. Khushaldas, AIR 1949 Bom 277 that the decision of Government about a public purpose under the Bombay Land Requisition Ordinance, 1947, contains no judicial element in it, and therefore a writ of certiorari cannot issue. It was observed in this case:
"The inquiries mentioned in Sections 10 and 12 are only permissive and the Government is not obliged to make them. Moreover, they do not relate to the purpose for which the land may be required. They are in respect of the condition of the land and such other matters affecting land. The words of Section 3 read with the proviso, and the words of Section 4 taken along with the scheme of the whole. Ordinance, do not-impart into the decision of the public purpose the judicial element required to make the decision judicial or quasi-judicial. The decision of the Provincial Government about public purpose is therefore, an administrative act, and there is no scope for an application for a writ of certio-Tari,"
In , we find the following observations at p. 1159 (of SCR): (at p. 37S of AIR) :
"As the law stands at present, the only purpose, for which an enquiry under Act 37 of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him, prior to giving him a reasonable opportunity of showing cause, as is required under Article 311(2) of the Constitution. An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses. It is a matter of convenience merely and nothing else. It is against this background that we will have to examine the material provisions of the Public Servants (Inquiries) Act of 1850 and see whether from the nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence."
On the foot of these principles it was held in , that the Commissioner appointed under the Public Servants (Inquiries) Act 37 of 1850, is not a Court within the meaning of Section 3 of the Contempt of Courts Act 32 of 1952, approving the Privy Council decision in Shell Co. of Australia v. Federal Commissioner of Taxation, (1931) AC 275 defining "judicial power" at page 295, and the previous decisions of the Supreme Court in Bharat Bank, Ltd, Delhi v. Employees of Bharat Bank Ltd. and Maqbool Hussain v. State ol Bombay, , where the test of a judicial tribunal as laid down in a passage from Cooper v. Wilson, (1937) 2 KB 309 at p. 340 was adopted by the Supreme Court. It was concluded (p. 159 of SCJ): (p. 70 of AIR):
"A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parlies to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law."
The definition of a Court given in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson (1892) 1 QB 431 and Dawkins v. Lord Rokeby (1873) 8 QB 255 was referred to and the position summarised in the following passage in Halsbury's Laws of England, Hailsham Edition, Vol. 8, p. 526, was set out:
"Many bodies are not Courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with, fairness and impartiality such as assessment committees, guardians committees, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Court when considering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medi-cal man."
In Dalmia's case, it was found that the enquiry by the Commission was neither a judicial nor a quasi-judicial proceeding attracting the issue of appropriate writs under Article 226 of the Constitution, on the foot of the following principles:
".....As has been stated by the High Court it-sulf in the latter part of its judgment, the only power that the Commission has is to inquire and nuke a report and embody therein its recommendations. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore, A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken, Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called.......... An inquiry necessarily involves investigation into facts and necessitates the collection of -material facts from the evidence adduced before or brought to the notice of the person or body conducting the inquiry and the recording of its findings on those facts in its report cannot but be regarded as ancillary to the inquiry itself, for the inquiry becomes useless unless the findings of the inquiring body are made available to the Government which set up the inquiry. It is, in our judgment, equally ancillary that the person or body conducting the inquiry should express its own view on the facts found by it for the consideration of the appropriate Government in order to enable it to take such measure as it may think fit to do. The whole purpose of setting up of a Commission of Inquiry consisting of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures the "situation disclosed calls for cannot be placed before the Government for consideration notwithstanding that doing so cannot be to the prejudice of anybody because it has no force of its own. In our view the recommendations of a Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. From this point of view, there can be no objection even to the Commission of Inquiry recommending the imposition of some form of punishment which will, in its opinion, he sufficiently deterrent to delin-quents in future. But seeing that the Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the statement made by any person before the Commission of Inquiry is, under Section 6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal there can be no point in the Commission of Inquiry making recommendations for taking any action 'as and by way of securing redress or punishment', which, in agreement with the High Court, we think, refers, In the context, to wrongs already done or committed, for redress or punishment for such wrongs, if any, has to be imposed by a Court of law properly constituted exercising its own discretion on the facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be .."
In ILR (1954) Nag 1: (AIR 1954 Nag 71), it fell to the Nagpur High Court to find out whether a Commission set up under the Commissions of Inquiry Act, 1952, was a Court and its proceedings were judicial proceedings. It was held by that Court:
"Section 4 of the Commissions of Inquiry Act, 1952, only clothes the Commission with certain powers of a civil Court but does not confer on it the status of a Court.
Under Section 5(4), (5) of the Commissions of Inquiry Act, 1952, the Commission is fictionally a civil court only for the purpose of the contempts punishable under Sections 175, 178, 179, 180 and 228 of the Indian Penal Code subject to the condition that it has not the right itself to punish the contem-ners, a right which other Courts possess under Section 480 of the Criminal Procedure Code. The fiction relating to the proceeding before the Commission is confined to offences that are punishable under Sections 193, 228 of the Indian Penal Code and does not extend beyond this limit. The Commission is only a fact finding body and meant only to instruct the Government without producing any document of a judicial nature. The Commission hence is not a Court within the meaning of the Contempt of Courts Act, 1952."
35. Bearing these principles in mind, if we examine the instant case, it will be found that the proceedings of the Fifth Presidency Magistrate which arc sought to be quashed by the writ of certiorari, are not judicial or quasi-judicial proceedings amenable to a writ of certiorari in that those proceedings constitute nothing more than a fact finding enquiry and have none of the characteristics of judicial or quasi-judicial proceeding, that it is only optional for the Magistrate holding the inquiry under Section 176 to make a report or not, that the object of the enquiry is nothing more than to furnish materials on which action might be taken or not, that the report by itself would purely be recommendatory and not one effective proprio vigore that it does not dispose of the rights of parties and in fact neither the report nor the statements recorded therein would be admissible in evidence in any future proceedings. Therefore, I find myself in entire agreement with the contention of the learned Advocate-General that in these circumstances a writ of certiorari cannot issue.
36-37. Therefore looked at from any point of view these petitions have got to be dismissed and are hereby dismissed.
38. I wish to expresss finally my great indebtedness to the learned Advocate Mr. M. K. Nam-byar and the learned Advocate-General for then-exhaustive analytical and lucid expositions which were of great assistance to me in the disposal of these petitions.
Before parting with this case I wish to record that the intense publicity discussed above if it had left an unfortunate impression that such instances constitute the approvea pattern of investigation in the metropolitan area, it would be unjustified. Government and the higher Police Officers have been sparing no efforts to condemn third-degree methods. The instant case is but one instance which has yet to be tested and proved in a Court of law.
39. I had the privilege of perusing the judgment of my learned brother and I agree with the order proposed by him. But in view of the importance of the question, I would like to add a few words. The facts have been fully set out in the judgment of my learned brother that it is unnecessary for me to re-state or repeat them here. I wilt confine myself to the questions of law raised for the purpose of invoking the jurisdiction of this Court to issue a writ
40. The contention of the learned Counsel Mr. Namhiar, is that under Section 5 of the Code, all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained. The proceedings in question, according to the contention, did not conform to the provisions of the Code of Criminal Procedure, and, therefore, they are null and void; and the complaint now laid and pending before the Second Presidency Magistrate is without jurisdiction and, therefore, the proceedings and the complaint must bo quashed.
41. At the outset, I must point out that these proceedings which are undoubtedly in the nature of an enquiiy or investigation do not relate to an enquiry into an offence under the Indian Penal Code. If enquiry into an offence under the Indian Penal Code has got to be conducted by a Magistrate, then he must take cognizance of it under any one of the clauses mentioned in Section 190 (1) of the Code of Criminal Procedure and dispose of the case in the manner provided by the Code. He has either to dismiss the case under Section 203, Cr. P. C., if there is no sufficient ground for proceeding, or, if the offence disclosed is one for which the procedure is the procedure for the trial of a supnmons case, then the provisions of Chapter XX must be followed; but, if the offence is one for which the procedure is the one for trial of a warrant case, then the provisions of Chapter XXII will have to be followed; and if the offence is one which is exclusively triable by the Sessions Court, then the procedure provided under Chapter XVIII of the Code Criminal Procedure will have to be followed; and, if it is a summary trial, then the procedure in Chapter XXII will have to be followed. In all these cases the Magistrate passes a final order, either discharging the accused or acquitting the accused or convicting the accused and sentencing him according to law or committing him for trial to the Sessions Court, according to the nature of the case. The very argument of Mr. Nambiar that after recording the evidence in this case, the magistrate who conducted the enquiry should have taken cognizance of the offence under Section 190 (c) presupposes that the magistrate who was conducting these proceedings had not taken cognizance of any offence. Section 5 on which Mr. Nambiar relies Is confined only to investigations, enquiries or trials for an offence under the Penal Code. The enquiry not being an enquiry into an offence, docs not fall within the scope of Section 5, and, therefore, there is no disobedience of Section 5 or any of the provisions of the Code.
42. The proceedings in question relate to the death or torture of a person who, it is stated, was in the custody of the police at the relevant time. They purport to be conducted in pursuance of Police Standing Order No. 157. These police Standing Orders are based either on the instructions given by" the Inspector General of Police or on Government Orders issued to them. In cases where the death occurs when the person is in the custody of a Police Officer, there is no presumption that the death is due to an offence committed by the police officer. The death may be due to natural causes. The person brought to the police station for the purpose of interrogation may suddenly the of heart failure or may the as a result of shock without his being beaten but solely on account of his being brought to the station and kept in custody. It may also be due to the illness which he might have developed either before and resulting in his death as soon as he was brought to the police station, or due to illness subsequently. The death may also be duo to beating by the police. There may, therefore, be several causes for the death of the person while in the custody of the police. Inasmuch as the police may be interested in hushing up if an offence were committed, it has been considered fit and wise to ask a Magistrate to conduct an enquiry to ascertain the cause of death in such cases. It is only after the enquiry and after receipt of the information as to how the person died, the authority will be in a position either to prosecute or not to prosecute any police officer in whose custody the person was alleged to have been, during the time of his death. For such a purpose, Government, with a view to satisfy the public have instructed certain officers other than police officers to conduct an enquiry in such cases. The Legislature also has inserted provisions in the Criminal Procedure Code to enable a Magistrate to find out the truth in such cases. One such provision is Section 176 of the Code of Criminal Procedure. According to this provision, when any person dies. while in the custody of the police, the nearest magistrate empowered to hold an inquest shall and, in any other eases mentioned in Section 174, Clauses, (a), (b) and (c) of Sub-section (1), any magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in-connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case. Then power is given to disinter corpses. The section confers on the Magistrate powers which. he would have if he holds an enquiry into an offence. This itself suggests that when he is holding an enquiry under Section 176 into the cause of death of a person in police custody he is not enquiring into an offence : he is only holding an enquiry into the cause of death and this is either instead of, or, in addition to, the investigation by the police.
43. Section 176, Cr. P. C., as it is found in the Code, does not apply to the City of Madras. By Section 157 of the East India Company Act, 1793, (33 Geo. III, Chapter 52), Coroners were appointed for the Cities of Bombay, Calcutta and Madras. Then the Coroners' Act IV of 1871 was passed which was applicable to the three Presidency Towns of Bombay Calcutta and Madras. Then the Code of Criminal Procedure came into force. Under Section 1 (e) of the Code of 1882, 'Nothing in Sections 174, 175 and 176 shall apply to the police in the City of Madras. By Act. V of 1889, the, office of Coroner of Madras was abolished, by omitting "Madras" in Coroners Act IV of 1871. Section (1) of Act V of 1889 repealed Clause (e) of Section 1 of the Criminal Procedure Code, 1882, and Clause (2) of Section 4 of Act V of 1889 is as follows :
"..... Sections 174, 175 and 176 of that Code (X of 1882) shall, in their application to the area comprised within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras, be read as follows :
Section 174 ....
Section 175 ....
Section 176 ....
The Chief Presidency Magistrate, or such other Presidency Magistrate as the Chief Presidency. Magistrate may depute in this behalf, shall when any person dies while in the custody of the police or in prison, and may in any other case mentioned in Section 174, Sub-section. (1), Clause (a), Clause (b) of Clause (c), hold an enquiry into the cause of death, either instead of, or in addition to, the investigation under either of the two last foregoing sections; and, where he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence, and shall record any evidence taken by him in the course of the inquiry as nearly as may be in the manner prescribed in Section
Act V of 1S89, thus amended Section 176 of the Criminal Procedure Code, so far as the City of Madras is concerned. It is the amended Section 176 that is applicable to the City of Madras. There are thus two provisions one Section 176 as it is found in the Code applicable to the Presidency of Madras and the other as amended by Act V of 1889 applicable to the City of Madras. Under the provisions of the amended Section the Chief Presidency Magistrate may either hold the enquiry himself or direct ano-ther Magistrate to hold the enquiry. It is contended by Mr. Nambiar that this provision is not now in force, as Act V of 1889 has itself been repealed by Act I of 1938: Does the repeal of Act V of 1889 repeal the amendment also? Section 4 of Act I of 1938 and Section 6(a) of the General Clauses Act, 1897, save this amendment notwithstanding the repeal of Act V of 1889. The contention of Mr. Nambiar is that Section 176 as amended by Act V of 1889, for the City of Madras, has not been incorporated in the main Act, and, as it is not incorporated in the main Act it must be construed only to be a provision in Act V of 1S89 and when Act V of 1889 is repealed by Act I of 1938, the section as amended is also repealed. I am unable to agree with his contention. When an Amending Act says that the provisions of the Act amended will be read as follows for a particular area, it means this is an amendment of the original Act which was amended and it must be deemed to have been incorporated in that Act. The fact that this provision was not actually incorporated does not, in my opinion, affect the question. The error may have been duo to oversight on the part of the authority who was concerned in publishing these Acts. But that error on his part cannot affect the validity of the provision even if it had not been incorporated in the main Act. A reading of Section 4(2) clearly shows that the provisions in Sections 174 to 176 of the Criminal Procedure Code, 1882, must be read as mentioned therein for the City of Madras. It is clearly an amendment which should have been incorporated in the main Act itself and, as already stated, the mere omission to have it so incorporated does not affect its continued validity. I hold (agreeing with my brother) that Section 176, as amended by Act V of 1889 is still in force for the City of Madras. The Chief Presidency Magistrate may, therefore, either himself enquire into the cause of the death or depute any one of the other Presidency Magistrates to enquire into it. This proceeding relating as it does to the cause of death of a person in the custody of the police in the City of Madras, it is Section 176 as amended by Act V of 1889 that is applicable. The Chief Presidency Magistrate, therefore, if be does not hold the enquiry himself is well justified in asking the other magis-trate to hold the enquiry into the case. So far, therefore, for the City of Madras, the provisions of the Criminal Procedure Code have been complied with when the Chief Presidency Magistrate has directed the V Presidency Magistrate to. conduct an enquiry into the cause of the death of the person while be was in police custody. The legislature after providing that the investigation, enquiry or trial for offences under the Indian Penal Code should be in accordance with the provisions of the Criminal Procedure Code, has also made provision for enquiry into the cause of dehth even though it is not an enquiry into an offence by Section 176 Cr P.C. and by Section 176 as amended by Act V of 1889 for the city of Madras.
The enquiry, the proceedings of which are now sought to be quashed will clearly fall under the provisions of Section 176, Criminal Procedure Code as amended by Act V of 1889. There is therefore no question of the proceedings not being in conformity with the provisions of the Code of Criminal Procedure. It is true that it purports to be under P. S. O. 157, but the latest order of the Government clearly point to the fact that in the City of Madras [he enquiry must be done either by the Chief Presidency Magistrate or any other Presidency Magistrate deputed by him, The only addition in the instructions given consists in asking a report to be sent to the Chief Presidency Magistrate when the enquiry is being held by any of the Presidency Magistrates other than the Chief Presidency Magistrate whereas if the Chief Presidency Magistrate himself holds such an enquiry he need not send any report to any authority. The Police Standing Order further proceeds on the basis that the enquiry is only an informal and non-judicial one. So far the purposes of summoning witnesses the Government confers such powers : under Section 2 of the Madras Revenue Enquiries Act, 1893, to receive evidence in respect of conduct of the enquiry; and there was also authority for the Presidency Magistrate to receive evidence which also carried with it ipso facto the authority to administer oath. It seems to me that this investing thei Magistrate with powers under Section 2 of the Madras Revenue Enquiries Act is absolutely superfluous and unnecessary as under Section 176, as amended, the Magistrate will have all the powers in conducting the enquiry which he will have while holding an enquiry into an offence.
The fact that these powers were given does hot, in my opinion, affect the inherent powers which, the Chief Presidency Magistrate and a Presidency Magistrate have under Section 176 of the Code of Criminal Procedure as amended and made applicable to the City of Madras by Act V of 1889. The enquiry though it purports to be under P. S. O. 157 complies with all thei requirements of Section 176; as amended by Act V of 1889 as applicable to the City of Madras and there is absolutely no difference in the procedure adopted except in this, namely, that either in Section 176 or in Section 176, as amended by Act V of 1889, there is no provision for any report to be sent whereas the P. S. O. provides for it.
As to what should happen after conducting an enquiry under Section 176, the Act is silent. It is true that after finishing an enquiry, the Magistrate jn the moffussil or a Presidency Magistrate or Chief Presidency Magistrate, as the case may be, may take cognizance of an offence under Section 190 (1) (c). This is what Mr. Nambiar contends should have been done. But the Magistrate is not bound to take cognizance of an offence of which he may have gained knowledge during the conduct of this enquiry. It is not the bounden duty of a Magistrate to take cognizance of all offences which come to his knowledge, or of which he acquires knowledge in some form or other.
A Magistrate may be going along the street and he may be informed of a murder being committed. He may have all the powers to take cognizance of that offence but her is not bound to take cognizance of that merely because he has knowledge of the offence committed. There may be so many ways in which the Magistrate may come to know that an offence has been committed and it is not obligatory on the Magistrate to take cognizance of all such offences. Section 190 simply says "may take cognizance of the offence." Clause (c) stands on an entirely different fooling from Clause (a) and (b) to Section 190 (1).
The Magistrate, therefore, even if he comes to know or acquires knowledge that an offence has been committed is not, in my opinion, bound to toko cognizance of it. Further, the statute itself does not provide for any final order to be passed by him when he conducts an enquiry into the cause of the death of the person while in police custody. Under Section 176 either as applicable to the Presidency of Madras or to the City of Madras, it is silent on the subject.
So far as Section 176 as applicable to Madras is concerned, when the Chief Presidency Magistrate deputes another Presidency Magistrate to conduct the enquiry according to instructions he must send a report to the Chief Presidency Magistrate. This does not seem to be in any way inconsistent with the provisions of the Cr. P. C. Where a Code is silent and is not against the sending of the report, I am unable to see how the sending of the report to the Chief Presidency Magistrate without his taking cognizance under Section 190 (1) (c) in any way oftends the provisions of the Code. The proceedings, therefore, looked at from any point of view do not offend the provisions of the Crl. Procedure Code.
44. The argument of Mr. Nambiar is that the proceedings are not in consonance with the provisions of the Code of Criminal Procedure, as they should be according to the provisions of Section 5, and therefore, they are null and void. In my opinion, this must fail as in one view they are not proceedings to enquire into an offence under the Indian Penal Code and in the other view the provisions of the Code of Criminal Procedure with regard to the death of the person while in police custody as applicable to the City of Madras (Section 176 as amended by Act V of 1889) have been followed in this case.
45. Assuming for a moment and for purposes of argument that these proceedings are not in conformity with the provisions of the Code of Criminal Procedure, then the next question to be considered is whether a writ lies against these proceedings and the report of the Magistrate. It is a well settled principle that writs lie only against the decisions Or determination of rights of parties by either a judicial or quasi-judicial tribunal.
It is the contention of Mr. Nambiar that the reports of the V Presidency Magistrate and IV Presidency Magistrate with their findings amount to a decision and, therefore, a writ lies against them. Do these reports therefore constitute decisions or determine rights of parties? In these proceedings there was no prosecutor nor any defence. There were no parties. The enquiry, as stated earlier, is only to find out the cause of death. The report by its very nature does not decide anything.
There is no order passed which is binding on any party. In these circumstances it seems to me that these proceedings resulting in the report cannot attract the jurisdiction of this Court to issue a writ. An examination of the case law will support the above view.
46. In re the Grosvenor and West-end Rly. Terminus Hotel Ltd., (1897) 76 LT 337, Lord Esher M. R., at p. 337 dealing with an enquiry under Section 56 of the Companies Act of 1862 says as follows:
"The examination is to be made for the purpose of making a report and that report when made has no legal effect with regard to any one and cannot be used as evidence against any one. The enquiry held by the Inspector is 'not a judicial enquiry and has nothing in the nature of a judicial determination' .....The report will not be evidence in a Court of Justice of the existence of any fact mentioned in it. It binds no one and has no effect upon any one or any company. It is not a judicial enquiry and even if he should overstep the authority which he has, he is not liable to a writ of prohibition. (Underlining (here in ' ') is mine.)
47. In (1924) 1 K. B. 171 at p. 195, Bankes, L. J. observed as follows:
"In short, there must be the exercise of some right or duty to decide in order to provide scope for a writ of certiorari at common law."
At p. 205 Lord Atkin, L. J. observed as follows;
"Wherever any body of persons having legal authority to determine questions 'affecting the rights of subjects and having the duty judicially,' act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs." Underlining (here in ' ') is mine.)
48. In Hearts of Oak Assurance Co. Ltd. v. Attorney General 1932 AC 392 at p. 396, Lord Than-kerton, observes as follows:
"It appears to me to be clear that the object of the examination is merely to recover information as to the company's affairs and that 'it is in no sense a judicial proceeding for the purpose of trial of an offence', it is enough to point out that there are 'no parties before the Inspector, that he alone conducts the enquiry', and that the power to examine on oath is confined to the officers, members, agents and servants of the company.
The information so gained by the Commissioner, either by himself or from the report of an Inspector, will enable him to decide whether to take action under Sub-section (2) of Section 17, If he takes so serious a view of the situation as, in the case of a society to award dissolution or, in the case of a company, to petilion for winding up, the society or company respectively will have the opportunity of having the whole matter judicially investigated, in the case of a society in an appeal, and, in the case of a company, by opposing the petition".
(Underlining (here in ' ') is mine.) At p. 400 Lord Macmillan states as follows :
"It will thus be seen that in the case of an industrial assurance company the Commissioner can 'take effective action on the inspection and report only by means of an application to the Court,' while in the case of a collecting society his action may be reviewed by the Court, so that in either case the inspection may ultimately be followed by judicial proceedings." (Underlining (here in ' ') is mine).
49. Coming to the decisions of our Courts in their Lordships of the Supreme Court referring to the inquiry under Act XXXVII of 1850 by a Commissioner of Police observe at p. 1160 (of SCR): (at p. 379 of AIR) as follows :
"A commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so. The subject-matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses. The mere fact that the word 'prosecution' has been used, would not make the proceeding before the Commissioner one for prosecution of an offence.
As the Commissioner has to form his opinion upon legal evidence, he has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents. These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than a mere fact finding enquiry.....At the close of the enquiry the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made. This is a mere expression of opinion and it lacks both finality and authoritalivcness which are the essential tests of a judicial pronouncement. The opinion is not even binding on the Government".
In the above case the enquiry was against a particular individual for acts which if proved will amount to an offence. Witnesses were examined on oath, and a report was submitted to Government with an expression of the opinion of the Inquiring Officer. Still as it lacked finality and authoritativeness, it was not considered a judicial pronouncement.
50. In their Lordships at p. 158 (of SCJ): (at p. 70 of AIR) referred to the case in (1931) AC 275 and slate as follows:
"The Privy Council in the case of LR (1931) AC 275 thus defined 'Judicial Power' at page 295: "Is this right? What is 'Judicial Power?' Their Lordships are of opinion that one of the best definitions is that given by Griffith, C. J. in fiuddart, Parker and Co. v. Moorehead (1909) 8 CLR 330 (357) where he says: T am of opinion that the words 'Judicial Power' as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."
51. In Sri Rarnakrishna Dalmia's case, their Lordships held in Civil Appeals Nos. 455 to 457 and 655 to 658/57 : that the enquiry by a Commissioner was neither judicial nor quasi-judicial proceedings to attract the writ jurisdiction under Article 226 of the Constitution. They state as follows:
". . .As has been stated by the High Court itself in the latter part of its judgment, the only power that the Commissioner has is to inquire and make a report and embody therein its recommendations. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry jn the sense of its being an exercise of judicial function properly so called . . . ."
52. The above decisions clearly establish the position that unless the body or the tribunal which investigates or holds an enquiry is, by law, entitled to give a decision on the material placed before them, any finding arrived at by such body will not be subject to the writ jurisdiction of this Court.
53. Halsbury mentions in his Laws of England Vol. 9 at page 859, paragraph 1450 another class of cases to which writs will be refused. He states:
"There are some acts on the part of tribunals with regard to which, upon grounds of public policy, the writ will be refused irrespective of the question whether such acts are of a judicial or of a ministerial character. Thus, the order of a court of quarter sessions granting exclusive audience to barristers will not be removed, because courts of justice possess inherent rights with regard to the regulation of their own procedure. The decision of justices to commit a defendant for trial or to admit him to bail will not be removed, inasmuch as to grant the writ in cases of this kind would cause delay and embarrassment in the administration of the law. Certiorari will not lie to remove assessments to the land tax, because to remove them would occasion grave public inconvenience."
54. Applying the above principles to the proceedings in question, the magistrate first of all does not enquire into the offence; secondly, after enquiry into the proceedings he sends a report. He does not give any decision or determine the rights of the parties. As pointed out earlier, during the whole of this enquiry there was no Prosecutor, and there was no accused to defend himself.
It is, as pointed out, in one of the decisions cited above, a fact finding enquiry, an enquiry to ascertain the cause of the death of the person and to report to the Chief Presidency Magistrate the opinion of the enquiring officer. Since such a report does not amount to a decision or the determination of the rights of parties by the Fifth or the Fourth Presidency Magistrate, there is no scope for the issue of a writ.
55. Mr. Nambiar relied on the decision of Kuppuswami Aiyar J. in AIR 1944 Mad 37: 56 Mad LW 437 as showing that proceedings under Section 176 of the Code of Criminal Procedure are judicial proceedings and are subject to re visional jurisdiction of the High Court. This decision has overlooked an important circumstance namely that under Section 435, Criminal Procedure Code, the High Court can call for and examine the record of any proceeding, only of an inferior criminal Court. It has not befen contended before us that this enquiry by a Magistrate under Section 176 is by a Court. As it is not a Court, the records of it cannot be called for by the High Court under Section 435. In our view the decision of Kuppuswami Aiyar, J. is not correct.
56. The learned counsel relies upon the definition of judicial proceedings in Section 4(m) of the Coder of Criminal Procedure to snow that these proceedings before the V Presidency Magistrate and IV Presidency Magistrate are judicial proceedings. It is true that Clause (m) defines judicial proceedings as including any proceeding in the course of which evidence is or may be legally taken on oath. It only means wherever the expression 'Judicial Proceeding' is used, it is a proceeding in the course of which evidence is or may be legally taken on oath. The converse is not always the truth.
All men are mortals, but all mortals are not men. A judicial proceeding may be one in which evidence is qr may be legally taken on oath; but all proceedings in which evidence is taken on oath do-not necessarily mean judicial proceedings. These proceedings not being judicial proceedings., I do not see how Article 20(3) can be invoked. That applies to a case in which the accused is compelled to be a witness against himself. There is no accused in this case till the facts are ascertained. It may be that some of the police officers who were examined may or may not subsequently turn out to be accused.
But at the time when the enquiry was conducted there was no accused charged with any offence. Even otherwise warnings were given to the police officers that they are not bound to give evidence except in the case of one to whom it is not cleat that the warning was given before he was examined. A police officer is not bound to give evidence himself and under Section 132 of the Indian Evidence Act he can very well seek protection by refusing to answer questions which will incriminate himself. There is no question of Article 20(3) of the Constitution-being offended by these proceedings; and, therefore, the proceedings are not ultra vires the Constitution.
The regular judicial enquiry against these accused is yet to start. Only the complaint has been filed and it has been transferred by the Chief Presidency Magistrate to the II Presidency Magistrate and the question, therefore, of the application of Article 21 does not arise. The regular procedure is being followed for enquiring into the offences.
57. Another minor point which was also laid stress on is that the Chief Presidency Magistrate should not have directed the Commissioner of police to file a complaint before him. According to the contention of the learned counsel, he had acquired knowledge of the commission of the offence and he could have acted under Section 190(1)(c) and this direction to the Commissioner of Police to file a complaint is artificial. This is doing a thing indirectly which ought to be done directly.
Here again the argument overlooks the fact that if he takes cognizance on the report, he will have to act under Section 191, Cr. P. C. and this is what he has done after asking a complaint to be filed before him. As regards asking the Commissioner of Police to file a complaint, I do not see there is anything illegal in this. Instead of acting On his own, he has asked the Commissioner to file a formal complaint. It seems to me that the rights of the accused have not been affected in any manner by such procedure.
58. Apart from all these considerations, I do not see how a complaint which is now before the court can he quashed, unless there is a bar under any of the provisions of Sections 195 to 199 of the Cr. P. C. to the court taking cognizance of it. There is no such bar. In the absence of such a bar I do not see how the Second Presidency Magistrate to whom the complaint has been forwarded can refuse to take cognizance of the offence. Now that he has taken cognizance of the offence, in the absence of any provision prohibiting him from doing so, I do not see how the enquiry can be stopped.
59. There are no grounds to interfere with the proceedings in the Court of the Second Presidency Magistrate and, for the reasons already mentioned, no case has been made out for the issue of a writ. These petitions are therefore dismissed.
60. I agree with my learned brother that these proceedings should not be given such publicity as has been given in this cage. In future the Magis trates will bear this in mind when they conduct such enquiries. No costs.