1. I agree in the conclusion, arrived at by my learned, brother.
2. We recently had occasion, in Harihar Roy v. Emperor Harihar Roy v. Emveror (Criminal Revision No. 988 of 1918, 22 Nov., 1918. Richardson and Shams-ul-Huda JJ. This is a Rule upon the District Magistrate of Jalpaiguri to show cause why the criminal proceedings pending against the petitioner under Section 384 of the Penal Code in the Court of the Deputy Magistrate of Jalpaiguri should not be quashed, or in the alternative why the case should not be transferred to some other district for trial.
The petitioner is a police-officer. In June, 1918, the Superintendent of Police, Jalpaiguri, by a letter addressed to the Deputy Commissioner made certain charges of extortion against the petitioner who had been suspended. The letter, on receipt in the Deputy Commissioner's office appears, to have been placed before Mr. A. Majid, Deputy Magistrate, who issued a warrant for the petitioner's arrest, and there by instituted the proceedings against the petitioner to which the Rule relates.
Mr. Majid is specially empowered to take cognizance of offences under Section 190, Sub-section (1), Clauses (a) and (b) of the Criminal Procedure Code. The first point taken on the petitioner's behalf is that the Superintendent's letter is not a police report within the meaning of Clause (b) and that Mr. Majid erred in taking cognizance of the case, as it appears that he did, under that clause. An offence under Section 384 of the Penal Code is a 'non-cognizable' offence, and it is agreed on the authority of the decision of a Full Bench of the Bombay High Court in King-Emperor v. Sada (1887) I.L.R. 14 Clac. 707, that the expression 'police report' in Clause (b) of Section 190 (1) of the Criminal Procedure Code does not include a report made by a police-officer of his own motion in a non-cognizable case. If that be so, what follows? In the definition of 'comprint' in Section 4(1)(h) of the Code it is stated that the term does not include 'the report of a police-officer.' If the expression 'police report' is to have a restricted meaning, then as the case cited itself shows, the meaning of the expression 'report of a police officer' must be similarly restricted, so as to bring a report made by a police officer of his own motion in a non-cognizable case within the definition of ''complaint.' Otherwise such a report as the police Superintendent's letter in the present case would be neither a 'complaint' nor a 'police report' nor could it be dealt with under Section 190(1)(c) as 'information received from any person other than a police-officer.
That could not have been intended by the framers of the Code. It is sufficient, therefore, for the purposes of the present case to say that if the Police Superintendent's letter was not a 'police report,' it was a complaint and the Deputy Magistrate is empowered to take cognizance of offence, upon complaint under Section 190(7)(a). It is said that the Deputy Magistrate did not examine the Superintendent on oath under the provisions of Section 200 of the Criminal Procedure Code. But even on the assumption that the. Superintendent's letter was a complaint the mere fact that he was not examined on oath would not in our opinion vitiate the proceedings or render them proceedings taken without jurisdiction. Under Section 529, Clause (e) of the Code if a Magistrate not empowered by law to take cognizance of an offence under Section 190, Sub-section (1) Clause (a) or Clause (b) docs so erroneously but in good faith, his proceedings are not to be set aside merely on that ground. That being expressly laid down if a Magistrate duly empowered takes cognizance of an offence upon complaint, but omits to examine the complainant on oath, the omission can hardly be more than an irregularity which does not affect the Magistrate's jurisdiction to try the offender. This is the second time that the petitioner has moved the Court to intervene in the proceedings against him. On the last occasion this question of jurisdiction was not raised or mentioned. Moreover, the Police Superintendent's letter was based on information received by him and his examination-on-oath would have been a mere formality.
To sum up if the Superintendent's letter was a 'police report,' no question even of irregularity arises. If it was a 'complaint' the petitioner has no substantial grievance. We are accordingly unable to accept the contentions now put forward as disclosing any sufficient reason for quashing; the proceedings.
There remains the alternative prayer for the transfer of the case to some other Court for trial. The petitioner, though he is under suspension, is a police-officer. As a police-officer he is subject to the disciplinary rules of his department and the lawful authority of the officers to whom he is subordinate. He complains that disciplinary orders to which he is bound to render obedience hamper him in the conduct of his defence. Now it is entirely beyond our province to interfere with the discipline of the force or the exercise by the superior officers of police of their lawful powers. We have no doubt that the observations made on the 23rd August, 1918, by the learned Judges who were then dealing with criminal matters have borne fruit and that the Superintendent of Police has honestly attempted to remove any cause of complaint on the petitioner's part that he was being harshly or inconsiderably treated.
On the other hand we are bound to satisfy ourselves that the conditions under which the petitioner is being tried do not impede him in his defence, and for that purpose we must look at the matter not only from the point of view of the superior officers but also from the point of view of the petitioner.
The principal order governing the petitioner's movements appears to be an order of the 5th September, 1918, quoted in the explanation submitted by the Deputy Commissioner. By that order the Superintendent directs that the petitioner is to be allowed facilities for instructing his legal adviser or taking such other steps as may be necessary for the conduct of his offence at any time on application made to me.' We are quite prepared to believe that no exception can be taken to the spirit in which that order was meant to be carried out. The order nevertheless seems to involve this that the petitioner has to apply to the Superintendent from time to time for such facilities as he requires. The Superintendent way be quite willing to grant the facilities, but there may be at any rate some delay before the petitioner's applications are received or dealt with by him. The result has been to engender in the petitioner's mind a feeling that his movements are unduly restricted, and on the materials before us we cannot characterize his state of mind as entirely unreasonable. While, therefore, we make no reflection on the conduct of the superior police-officers and while no one questions the impartiality of the Deputy Magistrate before whom the case is now pending, we are of opinion that a transfer of the case is desirable, and we direct accordingly that the case be transferred for trial to the Court of such competent Magistrate at Siliguri as the Deputy Commissioner of Darjeeling may appoint, to consider the question whether the report of a police-officer disclosing the commission of a non-cognizable offence was a ''police report' within the meaning of Section 190(1)(b) of the Criminal Procedure Code, or a ' complaint ' within the meaning of Section 4(1)(h). The conclusion at which we then arrived was that it must be the one or the other. That being so, the Magistrate in the present case had jurisdiction to take cognizance of the non-cognizable offence disclosed in the report submitted by the investigating police-officer, the offence, namely, of making a false charge punishable under Section 211 of the Penal Code.
3. If the question were free from authority, I should for my part be disposed to say that the report of a police-officer in a non-cognizable case is a 'police report' for the purposes of Section 190(1)(b) of the Criminal Procedure Code. In that case the Magistrate had clearly power to issue process against the petitioner as he has done. But if that view be not correct, and the report in question, was a complaint, then the only error which the Magistrate committed was in not examining the complainant, that is the police officer, on oath before issuing process. In the case I have referred to [Harihar Roy v. Emperor (1918) See Footnote, p. 810.], we held that such an omission was an irregularity only, and that it did. not go to the jurisdiction of the Magistrate. That being so, there is no reason why merely on this ground we should interfere in the exercise of our Revisional Jurisdiction and direct that the case be commenced de novo.
4. Then there is the proceeding which has been interpolated between the report of the police-officer and the issue of process. The petitioner was called upon, to show cause why he should not be prosecuted for making a false charge, and the proceeding was made over for hearing by Mr. Majid, the Senior Deputy Magistrate, who had received the report, to a Junior Deputy Magistrate, Mr. Hollow. The petitioner took no exception at the time. He showed cause and produced witnesses. Mr. Hollow, after examining the witnesses, was of opinion that the case instituted was false, and with this expression of opinion the case went back to Mr. Majid who issued process. Now it is quite true, that the course so followed, is not expressly sanctioned by the Code. But in Queen-Empress v. Sham Loll (1887) I.L.R. 14 Calc. 707, which was decided by a Full Bench, Sir Comer Petheram laid it down that a prosecution for making a false charge should not be commenced 'until it is clear that the original charge has been either dismissed or abandoned.' He went on to say:--'I should add that, in order to show conclusively that such a charge (that is the original charge said to be false) has been abandoned, I think that, before the order to prosecute for the false charge is made, the person who made the original charge should be offered an opportunity of supporting it or abandoning it.' Norris J. also says:--'I am also of opinion that a Magistrate should not take cognizance of an alleged offence under Section 211 of the Indian Penal Code, until the alleged offender has had an opportunity of substantiating the original charge, and such original charge his been disposed of in due course of law.' Wilson J. concurred in the judgments of Petheram C.J. and Norris J., and Tottenham and Ghose, JJ. concurred generally in those judgments. Tottenham J.'s reservation is not pertinent to the question now under discussion.
5. Since Queen-Empress v. Sham Lall (1887) I.L.R. 14 Calc. 707, and in deference to the opinion expressed in that case, the procedure adopted in the present case has been commonly followed, and it is only recently that any exception has been taken to it. The position now is that if the person accused of having made a false charge is not afforded an opportunity of proving the charge, the Magistrate's proceedings are attacked on that ground on the authority of the Full Bench case. If having been given such an opportunity, he fails to prove the charge and is then prosecuted, he complains that the Magistrate had no jurisdiction to call upon him to show cause.
6. Different views may perhaps be held as to the propriety of calling upon an accused person to show cause why he should not be prosecuted for an offence. But clearly it was the opinion of the Full Bench, or at any rate of the majority of the Judges, who composed it, that in the special case of a charge made to the police and reported by the police to be false, the maker should have notice before being prosecuted under Section 211. In giving such notice the Magistrate, though he may not be acting under any express provision of the Code, cannot be said to act without jurisdiction. The maker may show cause or may refuse to show cause, but whichever course he adopts, having made the charge, he can hardly be heard to complain. Similarly, in proceedings under Sections 195 and 476 of the Code, a person could make no grievance out of the fact that before an order was made against him under either of those sections, he was given notice or was called upon to show cause why such an order should not be made.
7. Moreover, as my learned brother has said, if the proceedings held in such cases upon an order to show cause are without jurisdiction, the result is merely that those proceedings are null and void. They do not affect the Magistrate's jurisdiction to issue process.
8. What happened in the present case was this. On the receipt of the police report, Mr. Majid stayed his hand. He gave the petitioner the opportunity required or suggested by the Full Bench case before issuing process. I agree with my learned brother that in no view of the case can it be said that in issuing process Mr. Majid acted without jurisdiction, and that the Rule should be discharged.
9. This is a Rule calling upon the Deputy Commissioner of Jalpaiguri to show cause why the order of Mr. Majid, dated the loth of September, 1918, summoning the petitioner to answer a charge under Section 211 of the Indian Penal Code, should not be set aside.
10. It appears that the petitioner lodged an information to the police of a dacoity said to have been committed in his house. The police, after investigation, submitted a report to the aforesaid Mr. Majid, the Senior Deputy Magistrate of Jalpaiguri, stating that the case was false, and recommending the prosecution of the petitioner. This report purports to be one under Section 173 of the Criminal Procedure Code. On receipt of this report, on the 22nd of July, 1918, the petitioner was called upon by Mr. Majid to show cause why he should not be prosecuted for an offence under Section 211 of the Indian Penal Code and, subseqently, on the 3rd of August, 1918, he referred the matter to Mr. Hollow, another Deputy Magistrate, for disposal. Mr. Hollow, after examining some witnesses produced by the petitioner, was of opinion that the charge of dacoity was false, and recommended his prosecution: Mr. Majid accepted this recommendation and summoned the petitioner to appear before him to answer to a charge under Section 211 of the Indian Penal Code. The Rule is directed against this order.
11. Mr. Pugh, who appeared in support of the Rule, contended that this order is illegal and should be set aside mainly on two grounds. In the first place he contended that the report of the police-officer who recommended the prosecution of the petitioner was not a 'police report' within the meaning of Section 190 (1)(b) of the Criminal Procedure Code as the police report contemplated by that section is a police report in a cognizable case, that an offence under Section 211 being non-cognizable the Magistrate was not competent to take cognizance of the case on such a report. This contention is based on the decision of a Full Bench of the Bombay High Court, King-Emperor v. Sadi. (1901) I.L.R. 26 Bora. 150, in which it was held that, where a police-officer of his own motion, makes a report to a Magistrate in a non-coguizable case, it is not a police report, as there is no provision in the Criminal Procedure Code which empowers a police-officer to make such a report. As observed by Mr. Justice Chandavarkar 'the Legislature has studiously attached, to the expression 'police report' a peculiar meaning throughout the Code wherever the expression occurs, and pointed out the occasions when, and the purposes for which, such report should be made. Where a police report goes beyond those occasions and purposes, it must fall within the definition of 'complaint' in Section 4, Clause (h) of the Code.' The same view was taken by the Madras High Court in the case of Chidambaram Pillai v. Emperor (1908) I.L.R. 32 Mud. 3, where it was held that a report of a police-officer must be some statement made in connection with or at least under colour of the duty of the maker as a police-officer. A somewhat different view was, however, taken by two learned Judges of this Court in the case of Dilan Singh v. Emperor (1912) I.L.R. 40 Calc. 360, in which it was said that a police report such as the report in the present case, is not a complaint as defined in the Code, inasmuch as that definition expressly excludes a report of a police-officer. I may, however, observe that if such a report is not a police report within, the meaning of Section 190 (1)(b), it is not excluded from the definition of a complaint under Section 4 (h). We have also been referred to the decision of Chapman and Walmsley JJ. in Gangadhar Pradhan v. Emperor (1915) I.L.R. 43 Calc. 173. If it were necessary in the present case to decide the point perhaps I should not have felt very much pressed by these decisions as the point was not directly raised in either of these two cases. The same remark applies to the decision of a Full Bench of this Court in Queen-Empress v. Sham hall (1887) I.L.R. 14 Calc. 707. The question, however, does not appear to be of any practical value in the decision of this case, for conceding that the learned Counsel is right in his contention, and that the report was not a police report as stated before, it would fall within the definition of a complaint, and the Magistrate could take cognizance of the case under Section 190 (1)(a), in which case he ought to have examined the complainant before issuing the summons (Section 200 of the Criminal Procedure Code). But his omission to do so is a mere irregularity, and does not go to the root of the Magistrate's jurisdiction.
12. In. this view of the case, the action of the Magistrate was not in excess of his powers. In support of the Rule reliance has also been placed on the case of Tayebullah v. Emperor (1916) I.L.R. 43 Calc. 1152, but as the order complained of is neither an order under Section 195 of the Criminal Procedure Code nor an order under Section 476, that case seems to me not to have any bearing on the present question. I think, therefore, that the proceedings in this case have been properly initiated.
13. Next it is argued that Mr. Majid having made over the case for disposal to Mr. Hollow, it was Mr. Hollow alone who had seisin of the case, and Mr. Majid had no jurisdiction to direct the issue of summons without an order of transfer passed in conformity with the provisions of Section 528 of the Criminal Procedure Code. If the order were an order under Section 202 of the Criminal Procedure Code, on the authority of the ruling in Hari Gharan Gorait v. Girish Chandra Sadhukhan (1940) I.L.R. 38 Calc. 68, the contention would have been well-founded. The order making over the case to Mr. Hollow for disposal is not very clear, bat both Mr. Majid and Mr. Hollow understood it to refer not to the actual charge under Section 211 against the petitioner but to the proceeding calling upon the petitioner to show cause why he should not be prosecuted under that section. In my opinion the order was neither in form nor in effect an order under Section 202 of the Criminal Procedure Code. Assuming that the Magistrate took cognizance of the case upon a complaint it does not appear that the Magistrate was not satisfied as to the truth of the charge against the petitioner. His object in calling upon the petitioner to show cause was, no doubt, to give him an opportunity to prove the charge of dacoity contained in the information laid by him before the police, and was in conformity with the practice that was recommended in the Full Bench case of Queen-Empress v. Sham Loll (1887) I.L.L.R. 14 Calc. 707. But as pointed out in the case of Sarba Mahton v. Emperor (1913) 17 C. W.N. 824 and Tayebullah v. Emperor (1916) I.L.R. 43 Calc. 1152 the procedure, though obviously fair, is not one under any provision of the Code, and its adoption, even if it led to an enquiry by another Magistrate, can, in no way, affect the jurisdiction of the Magistrate who took cognizance of the case to summon the accused and proceed with the trial. I think, therefore, this Rule should be discharged.