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Mahadeo Singh Vs. Queen-empress - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal921
AppellantMahadeo Singh
RespondentQueen-empress
Excerpt:
false charge, prosecution for making - necessity of examination of complainant--dismissal of complaint--order for judicial inquiry or report without examining complainant, legality of--penal code (act xlv of 1860) section 211--code of criminal procedure (act 7 of 1898) sections 202, 203 and 476. - prinsep, j.1. after investigation, the police reported that the complaint of mahadeo singh, in respect of theft of certain documents, was false. on the 30th of april mahadeo singh appeared before the district magistrate and made a complaint asking to have the matter fried. the district magistrate deferred passing orders on the matter, until he was in receipt of the police report, and then, on the 6th may, he ordered the complainant to show cause within seven days why he should not be prosecuted under section 211 of the indian penal code, and at the same time he made over the complaint of mahadeo singh to the deputy magistrate for judicial inquiry and report. on the 10th june, the deputy magistrate ordered notice to the complainant to appear before his court with evidence on the 30th june,.....
Judgment:

Prinsep, J.

1. After investigation, the police reported that the complaint of Mahadeo Singh, in respect of theft of certain documents, was false. On the 30th of April Mahadeo Singh appeared before the District Magistrate and made a complaint asking to have the matter fried. The District Magistrate deferred passing orders on the matter, until he was in receipt of the police report, and then, on the 6th May, he ordered the complainant to show cause within seven days why he should not be prosecuted under Section 211 of the Indian Penal Code, and at the same time he made over the complaint of Mahadeo Singh to the Deputy Magistrate for judicial inquiry and report. On the 10th June, the Deputy Magistrate ordered notice to the complainant to appear before his Court with evidence on the 30th June, and after examining the complainant and his witnesses, he reported to the District Magistrate that the complaint was, in his opinion, false. The District Magistrate on this passed an order under Section 476 of the Code of Criminal Procedure directing the petitioner to be prosecuted for an offence under Section 211 of the Indian Penal Code. This matter was then considered on a rule granted by this Court, and, inasmuch as the District Magistrate had ordered the complainant, Mahadeo Singh, to be prosecuted under Section 211 of the Indian Penal Code for having made a false complaint without ever examining him, the order under Section 476 was set aside.

2. The Magistrate has renewed these proceedings and has examined the complainant, and on that examination he has again passed an order directing the complainant to be prosecuted under Section 211 of the Indian Penal Code.

3. A second rule, which is now before us, has been granted, and we have again considered this matter. It has been represented to us, and it would appear from the Magistrate's judgment, which was before us and which was not withheld from us, as the Magistrate in his explanation seems to think, that the Magistrate has proceeded entirely on the statement of the complainant. The Magistrate now represents in his explanation that he acted on the police report and also on the report of the Magistrate, who had held the judicial inquiry, and he further assures us that he had also considered the evidence recorded by that Magistrate before passing the order under Section 476 of the Code of Criminal Procedure.

4. The proceedings from first to last have been misconceived, and we think that this irregularity has operated very unfairly towards the complainant. He protested against the police investigation and asked the District Magistrate to try his complaint. The District Magistrate did not himself examine him in accordance with law. He made over the case at once to a Subordinate Magistrate for judicial inquiry and report. He had no authority for this procedure. The law requires that a complainant shall be examined, and it also provides that, if the Magistrate, after examination of the complainant, has reason not to believe the truth of the complaint, he can order an inquiry or investigation to be held. That was not the course taken by the Magistrate in this case nor did the Magistrate (as he ought to have done) transfer this case for trial by the Subordinate Magistrate. He retained it in his own Court for trial and he referred it, as we think without any authority, to a Subordinate Magistrate for an 'intermediate judicial inquiry,' as he terms it. The complainant was entitled to have his case tried out by some officer and to have final orders (sic) on it. The case before the District' Magistrate has never been tried out and has never been dismissed on evidence recorded by him or obtained by him in the manner directed by Section 202. Whatever may be the merits of the case, (sic) think that the proceedings, which have extended much more than one year have been unduly prolonged, and that there is no necessity for continuing them The Magistrate's order under Section 476 is, in our opinion, without jurisdiction inasmuch as it has not been properly passed on judicial proceedings before himself, and we think that the protest made by the complainant against the result of an investigation by the police should have received proper attention at the hands of the District Magistrate.

5. To avoid any misunderstanding we would point out that a complainant must be examined by the Magistrate who receives the complaint, or by some Magistrate to whom he has transferred the case. This was not done. When a complainant has been examined, he is entitled to have the person accused brought before the Magistrate, and it is only when the Magistrate has reason not to believe the truth of the complaint from his examination that this can properly be refused and an investigation held. Here the complainant protested against the police report and he appealed to the Magistrate for redress. It was certainly not fair to the complainant to disbelieve his complaint without ever hearing him; to order an investigation by another Magistrate and act on that investigation; and, without hearing the complainant from first to last, to order him to be prosecuted for making a false complaint. That was how the matter stood on the order passed on the first rule. The situation has not been improved since. The complainant has, it is true, been examined, but his witnesses have not been heard by the District Magistrate, who has condemned him on a report made by another Magistrate after an inquiry held irregularly and without jurisdiction. The examination has, in point of fact, been only a compliance with our order on the rule, so as to enable the District Magistrate to repeat the order previously passed by him. Even now the complaint has not been dismissed, and it certainly has not received the judicial trial that the complainant asked for and was entitled to. There was really nothing before the District Magistrate on which he could properly pass an order under Section 476 of the Code of Criminal Procedure. The rule is, therefore, made absolute, and it is directed that no further proceedings be taken in this matter.


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