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Tulsibala Rakhit and anr. Vs. N.N. Khosal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 266 of 1951
Judge
Reported inAIR1953Cal109,56CWN193
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 107, 192, 192(2), 202, 204, 112 and 529
AppellantTulsibala Rakhit and anr.
RespondentN.N. Khosal
Appellant AdvocateNalin Chandra Banerjee, Adv.
Respondent AdvocateS.C. Talukdar and ;Bibhuti Bhushan Das Gupta, Advs.
Cases ReferredRam Krishna Sinha v. Emperor
Excerpt:
- .....the petitioners is challenged on the ground of being illegal and unjustified under the criminal procedure code. it is contended also that mr. sanyal did not take cognizance of these proceedings under section 107, cr. p. c. and therefore had no jurisdiction to make the order of the 10th march, 1951. that order of the 10th march 1951 apart from directing the petitioners to show cause transferred, the case to mr. s. l. banerjee another first class magistrate before whom the cause was to be shown. such transfer is contended to be also illegal under the criminal procedure code,6. in order to appreciate these points it is necessary to examine and set out certain facts in this connection because the substance of the argument rests on the nature and character of the procedure that should be.....
Judgment:

P.B. Mukharji, J.

1. This is an application in revision against the order of the Magistrate dated the 10th March 1951 drawing up proceedings under Section 107, Cr. P. C. against the petitioners who were the second party and directing the petitioners to show cause why they should not execute the Bond for keeping peace-for a period of one year.

2. The opposite party is a tenant of the petitioners. There are many disputes between them as landlords and tenant. Quarrels are going on regarding supply of water and electricity. Then there are proceedings before the Kent Controller for standardisation of rent. The petitioners have also brought a suit for damages before the Third Court of the Munsif at Alipur and another Title Suit before, the same Court.

3. Against this background of litigation and dispute the allegation of the opposite party before the Magistrate was that the petitioners were creating nuisance and were abusing and insulting the opposite party with filthy language and were threatening him with acts of violence.

4. There was a Police enquiry finally resulting in the proceedings under Section 107 against the petitioners.

5. The main point urged before us is one of law. The Magistrate's order of the 10th March 1951 passed by Mr. F. M. Sanyal, First Class Magistrate at Alipur, drawing up proceedings against the petitioners is challenged on the ground of being illegal and unjustified under the Criminal Procedure Code. It is contended also that Mr. Sanyal did not take cognizance of these proceedings under Section 107, Cr. P. C. and therefore had no jurisdiction to make the order of the 10th March, 1951. That order of the 10th March 1951 apart from directing the petitioners to show cause transferred, the case to Mr. S. L. Banerjee another First Class Magistrate before whom the cause was to be shown. Such transfer is contended to be also illegal under the Criminal Procedure Code,

6. In order to appreciate these points it is necessary to examine and set out certain facts in this connection because the substance of the argument rests on the nature and character of the procedure that should be followed under Section 107. Cr. P. C. and the right to transfer cases by Magistrates under Section 192, Cr. P. C

7. The petition by the opposite party was filed on the 28th September 1950. An order was made by Mr. S. K. Ghosh, S. D. O., Alipur, on the 2lst November, 1950, and by that order a notice was issued directing the petitioners 'To show cause on 20-12-50 as to why they should not be bound down under Section 107, Cr. P. C. to keep peace.'

That bears the title as a 'Notice under Section 107, Cr. P. C.' It recites the petition of the opposite party and the report of the Metiabruz Police as well as the apprehension that there may be a serious breach of peace at any moment and finally gives directions to show cause in the terms indicated above. After adjournment on the 20th December 1950 the matter came up on the 10th March 1951 when as I have indicated above Mr. F. M. Sanyal the First Class Magistrate at Alipur again passed an order directing the petitioners to show cause why they should not be ordered to execute a Bond of Rs. 100/- each with one surety of the like amount for keeping peace for the period of one year. By this order not only was cause asked to be shown but as I have said the case was also transferred to Mr. S.L. Banerjee another First Class Magistrate before whom the cause was to be shown and who was asked to dispose it of.

8. The argument now will become clear on these facts.

9. It is said that the first notice of Mr. S. K. Ghosh, S. D. O. Alipur, dated the 21st November, 1950 having been issued to show cause there is no procedure which justifies a further order on the 10th March 1951 by Mr. Sanyal the First Class Magistrate to show cause again. That is said to be a procedure not recognised under Section 107, Cr. P. C. ' Then the order of transfer of the case by Mr. Sanyal to Mr. Banerjee is said to be illegal under the Criminal Procedure Code.

10. The argument raises questions of considerable importance.

11. Section 107, Cr. P. C. provides that when the specified Class of Magistrates is informed that any person is likely to commit a breach of peace or disturb public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity that Magistrate if in his opinion there is sufficient ground for proceeding may in the manner provided in the Statute require such person to show cause why he should not be ordered to execute a Bond with or without sureties for keeping peace for a period not exceeding one year as the Magistrate thinks fit to fix. If the Magistrate proceeds then he may proceed 'in the manner hereinafter provided'. The manner that is provided is laid down in Section 112, Cr. P. C. That section provides that when a Magistrate acting under Section 107, Cr. P. C. deems it necessary to require any person to show cause under such section shall make an order in writing setting forth the substance of the information received, the amount of the Bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required.

12. Judged by that test the notice issued by Mr. S. K. Ghosh, S. D. O., Alipur, directing the petitioners to show cause is clearly illegal. It does not state the amount of the Bond to be executed, the term for which it is to be in force or the number, character and class of sureties if any required.

13. In order to get round this difficulty it was contended on behalf of the opposite party that this notice of Mr. S. K. Ghosh, S. D. O., Alipur, dated the 21st November, 1950, was not a notice under Section 112, Cr. P. C. but a kind of a preliminary notice under Section 107, Cr. P. C. To my mind Section 107, Cr P. C. does not contemplate issue of any preliminary notice to show cause. The Magistrate may proceed in the manner laid clown by the Code. The words are

'The Magistrate if in his opinion there is sufficient ground for proceeding may in the manner hereinafter provided require such person to show cause why he should not be ordered to execute a Bond with or without sureties and keeping the peace for such period.'

The words 'in the manner hereinafter provided' are essential words and the Magistrate cannot discover a manner of his own which he has done in this case. The manner provided is clearly laid down in Section 112, Cr. P. C. Issue of a preliminary notice- 'to show cause' apart from what is provided under section 112, Cr. P. C. does not appear to me to be a justified course permitted by the law. Section 107, Cr. P. C. does however give a discretion to the Magistrate in the sense that he 'may' require the person to show cause. He may choose to exercise, his. discretion to require such person to show cause or he may not. But when he does exercise that discretion and does decide that he will issue a notice to show cause then that notice to show cause must be a notice which satisfies, the requirements of Section 112, Cr. P. C.

14. The procedure under Section 107, Cr. P. C. should be clearly understood. The Magistrate on receipt of information may in the manner provided call upon the person informed against to show cause. That can only be done under Section 112, Cr. P. C. The Magistrate I can make any enquiry before he issues the; notice for showing cause. It is the responsibility of the Magistrate to see that public peace or public tranquillity is maintained. The Magistrate therefore in my view and for that purpose is competent to use the administrative machinery to call for a police enquiry and report before issuing the order to show cause. When he does issue the order, that order must satisfy the tests of Sections 107 and 112, Cr. P. C.

15. A petition under Section 107, Cr. P. C. is not a complaint and therefore the Magistrate cannot proceed under Section 202 or Section 204, Cr. P. C. A petition under Section 107, Cr. P. C. is not to be treated as a complaint. A Magistrate under Section 107, Cr. P. C. is not required to examine the complainant far less to examine the person informed against until at a much later stage when he proceeds to act under Section 117, Cr. P. C. The proceedings before the Magistrate under Section 107 Cr. P. C. become judicial only from the stage of enquiry under Section 117, Cr. P. C. But before that stage is reached and before any notice to show cause is issued under Section 112, Cr. P. C. all that is required under Section 107, Cr. P. C. is that the Magistrate must be 'informed' that a person is likely to commit breach of the peace. No hard and fast rule can be laid down about the quality and character of information on which the Magistrate should or should nut act, The Magistrate must be left free with a wide discretion in the matter and it is in my opinion undesirable to fetter the hands of the Magistrate in this respect.

16. To pursue the procedure that is laid down by the Code it is necessary to observe that the order under Section 112, Cr. P. C. should be served in the manner laid down in Section 115, Cr. P. C. Then the Magistrate is to hold an enquiry as to 'the truth of the information upon which action has been taken' and to take such further evidence as may appear necessary as laid down in Section 117, Cr. P. C. This is the stage of judicial enquiry under Section 107, Cr. P. C. and the procedure then approximates to conduct of trials and recording of evidence in Summons Cases. The-final stage is reached, when the Magistrate directs the person to give security under Section 118, Cr. P. C. if it is proved that it is necessary for keeping the peace that the person in respect of whom the enquiry is made should execute a Bond. The Magistrate shall make an order if it is so necessary to discharge such person under Section 119, Cr. P. C. when he thinks that it has not been proved that it is so necessary. That in brief is the simple and clear procedure laid down under the Criminal Procedure Code.

17. The Magistrate's power to call for a police enquiry and a police report should not be mistaken for his power to issue a notice to show cause without complying with Section 112, Cr. P. C. The decision of the Allahabad High Court in -- 'Laxshmi Narain v. Emperor', 34 Cri. L. J. 42 (All) is not an. authority for the proposition that a Magistrate if he decides to issue a notice to show cause then that notice to show cause can be given in utter disregard of the provisions of Section 112, Cr. P. C.

18. I am therefore bound to hold that the notice to show cause by Mr. S. K. Ghosh under Section 107, Cr. P. C. dated the 21st November 1950 does not satisfy the requirements of the Statute. I hold therefore that such notice is illegal and must be set aside.

19. Then the question arises does the subsequent order of Mr. Sanyal of the 10th March 1951 to show cause, which does satisfy the requirements of Section 112, Cr. P. C. cure that initial defect. This question involves the consideration of the extent of the right to transfer a case under Section 192, Cr. P. C. There is a good deal of confusion on this branch of the subject and it appears to me to be necessary io refer to certain decisions on this point.

20. The main argument of the petitioner on this branch of the case is that Section 192, Cr. P. C. does not at all apply to proceedings under Section 107, Cr. P. C. The refrain of this argument is that Section 192, Cr. P. C. refers to cases of which the Magistrate has taken 'cognizance for enquiry or trial'. It is said that the proceeding under Section 107, Cr. P. C. may foe a 'Case' but there can be no cognizance for enquiry or trial for such a proceeding.

21. But enquiry has a very wide connotation under the Criminal Procedure Code and includes every enquiry other than a trial conducted under the Code by a Magistrate or a Court. That is the meaning given to 'enquiry' under Section 4 (1) (k), Cr. P. C. I am of the opinion that proceedings under Section 107, Cr. P. C. do come within such meaning of the word 'enquiry'. In fact Section 117, Cr. P. C. in this connection does use the word 'enquiry'. It is quite true that the word used in Section 192, Cr. P. C. is 'case' and not 'offence'. There can in my view be no doubt that proceedings under Section 107, Cr. P. C. come within the meaning of the word 'case' as used in Section 192. Cr. P. C.

22. Then the attack is made on the basis of the word 'cognizance'. It is argued that cognizance can only be taken of an offence and not of a case. Reliance is placed on the observation of Sen J. in -- 'Pran Krishna v. Shamsundar', 54 Cal W N 228 where the learned Judge was dealing with proceedings under Section 133, Cr. P. C. At page 231 of the report of that case the learned Judge observes: 'Apart from the title of these parts of the Code the wording in Section 190 itself makes it clear. It deals with a case of which cognizance has been taken. Now cognizance can only be taken of an offence. Section 190 is one of the sections which deal with the manner in which cognizance may be taken of an offence. It is clear therefore that Section 192 concerns offence.'

With great respect to the learned Judge we are unable to agree with the view that Section 192, Cr. P. C. concerns only offence. The language of Section 192 does not use the word 'offence' deliberately but uses the far more general word 'case'.

23. A Division Bench (K. C. Das Gupta J. and P. N. Mukherjee J.) of this Court in the unreported decision in -- 'Jubbar Mondal v. Tarak Chandra Ghosh', Cri. Revn. No. 721 of 1950 (Cal) where judgment was delivered on the 7th February 1951 came to the conclusion that the question whether Section 192, Cr. P. C. authorises transfer of proceedings under section 145, Cri. P. C. was well settled by the authority of the decision in the case of -- 'Satish Chandra v. Rajendra Nath', 22 Cal 898. On the decision of Sen J. that Bench observed: 'The learned Judge did consider Section 192, Cr. P. C. and hold that Section 192, Cr. P .C. deals with transfer only of offences. His attention however was not drawn to the several Division Bench decisions following the decision in the case in -- '22 Cal 898' referred to above. We are bound to follow the decision in the case reported in -- 22 Cal. 898' which as already stated has been followed in a number of cases and has settled the-law in a particular way.'

I respectfully agree with this view of the Division Bench of Section 192, Cr. P. C.

24. In my judgment Section 192 refers not only to taking cognizance of offences but of cases of which cognizance has been taken. The language used in Section 192, Cr. P. C. is much wider in its character in respect of cognizance than that which has been employed in Section 190, Cri. P. C. It appears to me that it will be anomalous to give to the word 'cognizance' in Section 192, Cr. P. C. any technical and narrow significance and to confine it only to what are known as 'offences.' The contexti of Section 192 having used the word 'case' justifies Wider meaning being given to the word 'cognizance'. It must be observed that the expression 'cognizance' has not been defined in the Criminal Procedure Code. It is quite true that Section 190(1) of the Code refers to cognizance of offences. But I do not see how that can be taken to mean that wherever the word 'cognizance' is used in the Code it should only mean cognizance in respect of offences specially, .when the context of Section 192, Cr. P. C. uses the word 'case' and not 'offence'. This view that I take also finds support from the decision of Edgley J. in -- 'Hafizar Rahman v. Aminal Haque', ILR (1941) 1 Cal 67 where the learned Judge has exhaustively dealt with the previous authorities on the point. It is unnecessary for me to repeat them here.

25. I am therefore of the opinion that Section192 Cr. P. C. does apply in a proper case to proceeding under Section 107 Cr. P. C. and can be used to exercise the right to transfer the proceedings under Section 107 Cr. P. C. I therefore overrule tbe argument put forward on behalf of the petitioners that Section 192 Cr. P. C. does not at all apply to proceedings under Section 107 Cr. P. C.

26. But the difficulty of the petitioners does not end there. Mr. Sanyal is not Magistrate who had taken cognizance of this case. Now Sub-section 1 of Section 192 Cr. P. C. permits a Subdivisional Magistrate to transfer such case to any Magistrate subordinate to him. But here Mr. S. K. Ghosh, S. D. O., Alipur did not make such a transfer to Mr. Sanyal. In fact it was Mr. S. K. Ghosh who had taken cognizance of this case under Section 107 Cr. P. C. Then it is contended on behalf of the respondent that Mr. Sanyal was empowered by the District Magistrate under Subsection 2 of Section 192 Cr. P. C. That in my opinion is quite an untenable argument on the facts of this case. In my view, one of the statutory conditions which must be satisfied before any District Magistrate may empower any Magistrate of the First Class under subsection 2 of Section 192 Cr. P. C. is that Magistrate of the First Class must be one 'who has taken cognizance of any case'. It is not any and every Magistrate of First Class who can be empowered by the District Magistrate in this respect. Mr. Sanyal is no doubt a Magistrate of the First Class but he is not that Magistrate who took cognizance of this case. (27) On the facts of this case it does not appear that this defect of jurisdiction can be cured by the application of Section 529 (f) Cr. P, C. There it is provided that if any Magistrate not empowered by law to transfer a case under Section 192 'erroneously in good faith' does so transfer the proceedings shall not be set aside 'merely' on the ground of his not being so empowered.

28. The present case is not one of a Magistrate not being empowered by law to transfer. Here the District Magistrate under Sub-section 2 of Section 192 Cr. P. C. who undoubtedly had the necessary power did purport to empower the Magistrate of the First Class but what has happened is that this power was exercised in favour of a Magistrate who had not taken cognizance of the case. Section 529 (f) contemplates in my view a case where the Magistrate who is empowered is a competent Magistrate under the Code to receive the power but who in fact has not been so empowered by the District Magistrate. There the defect would be cured if the proceedings are questioned merely on the ground of. his not being so empowered by the District Magistrate.

29. The decision in -- 'Ram Krishna Sinha v. Emperor', 42 Cal W N 246 does refer to this question at p. 250 where it is observed:

'there are some cases in which it has been held that Section 529 applies only when a Magistrate who might have been empowered to do the particular thing in question is not actually so empowered and not with cases of irremediable want of jurisdiction.'

The learned Judge also observed at page 251

'We cannot say that this is an unreasonable interpretation of the scope and effect of Section 529'.

That decision however went on to say that

'so far as Clause (f) of this Section is concerned there are decisions of this Court in which this clause has been held to apply to cases where orders of transfer purported to be made under Section 192 Cr. P. C. by Magistrates who are not competent to do so as not being Magistrates who had taken cognizance'.

The decision there arrived at however is based on the following observation at page 251:

'but on matters of this kind which are really matters of procedure we do not think we would be justified in laying down a different Rule.'

Three cases were referred in that decision. One is of -- 'Kishorilal v. Srinath', 36 Cal. 370, at p. 373: the second is -- 'Dasarath Rai v. Emperor', 36 Cal 869 and the last one is -- 'Bhika Hossain v. Emperor', 39 Cal 1041.-- 'Kishorilal Roy's case' apparently proceeded on the assumption that the Magistrate had the necessary power. In -- 'Dasarath Rai's case' the point was not raised in the form that has been raised here as the observations of the learned Judges at page 252 of the Report show. The case really proceeded on the right of the Joint Magistrate to hear appeal from the Sub-Deputy Magistrate and on the basis that in such appeal the point was not taken, The case of -- 'Bhika Hossain' in 39 Cal 1041 rather said that section 529 (f) did not in that case confer jurisdiction on the Deputy Magistrate to make the order. The authority of --'Ram Krishna Sinha v. Emperor', 42 Cal W N 246 cleariy points out that such a case 'is undoubtedly a defect of jurisdiction which may not unreasonably be said to be outside the scope of Section 529 (f) Cr. P. C.'

30. I consider it improper on the part of the Magistrates where they are told by the authoritative decisions of this Court that a certain step is illegal that they would still continue to follow that illegal procedure which goes to the curative provision of Section 529 (f) Cr. P. C., on the ground of having done it 'erroneously in good faith'. Such a course will permit the criminal administrative machinery of the land to be abused without regard to the correct legal procedure laid down in the Criminal Procedure Code and by the interpretation of this High Court. It is the duty of the Magistrates and the Criminal Courts of this State to follow the procedure prescribed by law and there is no law not even Section 529 (f) Cr. P. C. which in a case like this can be said to sanction deliberate and intentional departure from that procedure. It is also their duty to inform themselves on the law which they are expected to administer and the decisions of this Court thereupon.

31. The words 'erroneously in good faith' in Section 529 Criminal Procedure Code do not protect deliberate negligence and wilful disregard of the clear provisions of the Code and the binding decisions of this Court. In this case the Magistrate himself quotes and relies on the decision of -- 'Ram Krishna Sinha v. Emperor', 42 Cal W N 246 to say that his illegal order is cured by Section 529 (f) Cr. P. C. This Court does not countenance such open and intentional violation of the law and subsequent invocation of Section 529 (f) Cr. P. C. to cure it when the Magistrate knows what the correct position in law and procedure is. That is not 'erroneously in good faith' and therefore cannot be cured and protected by Section 529 (f) Cr. P. C.

32. But for the two grounds namely first that this case does not come within the words 'erroneously in good faith' and secondly the proceedings here are questioned not 'merely' on the ground of the Magistrate not being empowered I was inclined to refer to a Full Bench for a fuller consideration of the point whether Section, 529 (f) Cr. P. C. can at all be invoked to cure such defect of jurisdiction in a case like this. Reference to a Full Bench however is unnecessary in this case. Here the proceedings are questioned on other grounds also and that is whether Mr, S. K. Ghosh the S. D. O. of Alipur having already issued a notice to show cause on the 21st November 1950 which is illegal, Mr. Sanyal who had not taken cognizance of the case could issue again another notice on the 10th March 1951 to show cause.

33. Section 529 Cr. P. C. makes it suite clear that the proceedings mentioned therein shall not be set aside 'merely' on the ground of the Magistrate not being empowered by law. Where there are other grounds on which the proceedings are questioned as here, Section 529 Cr. P. C. cannot be availed.

34. I therefore hold that Section 529 (f) Cr. P. C. cannot be attracted on the ground that the Magistrate in this case has not acted 'erroneously in good faith' nor are the present proceedings questioned 'merely' on the ground of the Magistrate not being empowered by law.

35. In the view that I take and for the reasons I have stated the entire proceedings in this case after, cognisance was taken by Mr. S. K. Ghosh, S. D. O., Alipur and from the stage he issued the illegal notice under Section 107 Cr. P. C. on the 21st November 1950 to show cause are illegal and unjustified and must be set aside.

36. In the result I make the Rule absolute. The petition of the opposite party under Section 107 Cr. P. C. should be dealt with according to law as indicated above, unless the Magistrate considers that there is now, about a year after the petition, no likelihood of breach of peace in which case he will refuse to issue notice under Section 112 Cr. P. C. to show cause and to take any further steps on the petition.

Guha, J.

37. I agree.


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