Debabrata Mookerjee, J.
1. This is a petition for revision of an order mode by the Additional Chief Presidency Magistrate of Calcutta dated the 23rd November, 1958, whereby the petitioner Parul Bala Sen Gupta was called upon to show cause why she should not pay compensation under Section 553 of the Code of Criminal Procedure.
2. The petitioner had made a complaint to the Deputy Commissioner of Police, Anti-Rowdy Section, Enforcement Branch, charging one Ranjit Das Gupta with having enticed her minor daughter aged about 11 years and ravished her. The allegation further was that Ranjit was a depraved person who had been involved in similar Incidents in the past and was a menace to the petitioner and her people. Protection was accordingly sought for and it was prayed that the miscreant might be removed from the locality. The matter was sent by the Deputy Commissioner to the Amherst Street Police who on receipt of the petitioner's complaint took cognisance and started investigation under Section 376 of the Indian Penal Code against Ranjit who was arrested and then released on bail. In the course of investigation the police examined several persons including the girl. The Additional Chief Presidency Magistrate before whom the accused was produced remanded the case on two occasions, and on the 33rd November, 1957, when the police prayed for further remand on the ground that the chemical examiner's report was being awaited, the learned Magistrate made the order complained of. He thought no useful purpose would be served by waiting for the report as the alleged sexual act had taken place six months ago. The learned Magistrate presumably perused the police papers and held that no sexual act could possibly have taken place in view of the circumstance disclosed that the private parts of the girl had been entirely unhurt. In the view the Magistrate took, he discharged the accused for want of evidence and at the same time called upon the petitioner to show cause why she should not be ordered to pay compensation to the accused under the provisions of Section 553 of the Code of Criminal Procedure. The Magistrate also advised the police that they should consult superior officers and decide whether steps should be taken to charge the petitioner with having committed an offence under Section 211 of the Indian Penal Code. It is 'against this order, that the present Rule is directed.
3. Mr. Dutt appearing on behalf of the petitioner has contended that the order under Section 553 of the Code of Criminal Procedure is a wholly misconceived one and must, therefore, be set aside. The learned Magistrate has submitted a lengthy explanation stating the circumstances in which he made the order complained of. That explanation, I must say at once, does not really meet the challenge to the legality of the order, but seeks to justify the course taken by the Magistrate in discharging the accused and calling upon the petitioner to show cause why she should not be ordered to pay compensation. The explanation of a Presidency Magistrate has to be considered under the provisions of Section 441 of the Code of Criminal Procedure. That section provides that the Magistrate may submit with the record of the case a statement setting forth the grounds of his decision or order and any facts which he thinks material to the issue; this Court is required to consider such statement before overruling or setting aside the decision or the order in question. I have accordingly given careful consideration to the explanation of the Magistrate in answer to this Rule. I am wholly unable to find any ground upon which reliance may be placed for the purpose of holding that the Magistrate's order which is now impugned was legal or proper.
4. It is, therefore, necessary to examine the legal position and see whether the order made by the learned Magistrate had sanction of the law behind it The Code of Criminal Procedure has made provisions relating to arrest and production of accused persons, investigation of the offences by the Police, and the submission of report by them as a result of the investigation made Section 61 of the Code of Criminal Procedure provides that no person shall be detained in custody by a police officer without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not in the absence of a special order of a Magistrate under Section 167 exceed twentyfour hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. If, therefore, the police want a longer period for the purpose of investigation, they have to follow the procedure prescribed in this behalf by the law. That procedure is indicated in Section 167 which occurs in Chapter XIV of the Code. When any person is arrested and detained in custody and it appears that the investigation cannot be completed within a period of twenty four hours fixed by Section 61 and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary relating to the accused and shall at the same time forward the accused to such Magistrate. The Magistrate to whom the accused person is thus forwarded may, whether he has or has not jurisdiction to try the case, from time to time authorise detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole.
5. In this case the police produced the accused before the Additional Chief Presidency Magistrate on the 18th September, 1956. The accused, was remanded to jail custody unless he found bail in the sum of Rs. 500/-. The accused did find bail and was enlarged; he attended the Court on two days, viz., the 1st and 24th October, 1956. Then on the 23rd November, 1956, when the police prayed for a further remand on the ground that the chemical examiner's report was being awaited, the learned Magistrate 'discharged the accused'' without indicating in the order itself under which section he was purporting to act, but he made it clear at the same time that he was discharging the accused for want of evidence.
6. In the explanation which the Magistrate has submitted he suggests that this order of discharge was made under Section 63 read with Section 167 of the Code of Criminal Procedure. Assuming these sections apply to the Police in the town of Calcutta, Section 63 merely provides that no person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. That section appears in Chapter V of the Code of Criminal Procedure which contains merely general provisions as respects arrest, escape and retaking. As far as I can see Section 63 merely empowers a Magistrate in a special case to make an order discharging the accused at a time when investigation is in progress. In special circumstances, a police officer may think it right to fortify himself with an order of the Magistrate, and in such care the Magistrate may direct the person to be discharged on bond or on bail when the investigation is in progress. If the Magistrate acted really under Section 63, as he now says he did, then it is difficult to fellow how he could claim to have acted under Section 553 of the Code of Criminal Procedure.
7. Section 553 of the Code of Criminal Procedure deals with the question of compensation to persons groundlessly given in charge in a presidency town. Sub-section (1) of Section 553 says,
'Whenever any person causes a Police officer to arrest another person in a presidency town, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding fifty rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.'
Sub-sections (2) and (3) do not fall to be considered in the present context and are accordingly left out.
8. It is, therefore, clear that the power to give compensation is a power given to a Magistrate who is hearing a case. In order that the Magistrate may exercise the power, he must be the Magistrate before whom the case is heard, The question is where is the case? Further, was the case being heard, and that by the learned Magistrate? I am afraid there was no case being heard inasmuch as the investigation had not been completed and no charge-sheet had been submitted.
9. Section 173 of the Code of Criminal Procedure provides that every investigation conducted under Chapter XIV of the Code shall be completed without unnecessary delay, and as soon as it is completed the officer in charge of the police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report, a report in the prescribed form setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused is forwarded in custody or has been released on bail or on his own bond. This report may be what is popularly called a final report in which the police after investigation finds that no case is made out; or it may be what is called a charge-sheet or challan submitted to a competent Magistrate for the purpose of taking cognizance of the offence. It is only here at this stage that Section 190 (1) (b) of the Code of Criminal Procedure comes into play. It provides that a Magistrate named in the section may take cognizance of the offence upon a report in writing of the facts made by the police officer. That report is undoubtedly a report under Section 173 of the Code of Criminal Procedure. Therefore, it is only when such a report is made and the Magistrate takes cognisance of the offence that a 'case' is brought into existence, and it is only then that the case is heard by the Magistrate within the meaning of Section 553 of the Code.
10. The orders of remand made by the learned Magistrate in the case to which I have referred were orders passed by him before cognisance had been taken of the offence. Obviously these orders had not been passed by the Magistrate under the provisions of Section 344 of the Code of Criminal Procedure. Consequently, it follows that the orders made by the Magistrate on the 18th September, 1st and 24th October, and 23rd November, 1856, were orders made when the case was not being heard. Indeed time had not yet come for the Magistrate to take cognisance of the offence. The police had not yet submitted a charge sheet and they wanted further time to complete the investigation whetherafter they might submit a charge-sheet or a final report as they thought proper.
11. The learned Magistrate thus completely misdirected himself in thinking that although he was making an order of discharge under Section 63 of the Code of Criminal Procedure, he had at the same time, power under Section 553 of the Code of Criminal Procedure to require the petitioner to show cause why he should not pay compensation to the accused for having groundlessly proceeded against him.
12. There is yet another aspect of the matter to which reference must also be made. The learned Magistrate seems to be of the view that as a result of his order, dated the 23rd November, 1956, the proceedings in investigation before the police have been smothered. He further advises the officers concerned in the investigation to consult their superior officers as to the desirability of instituting proceedings under Section 211 of the Indian Penal Code against the petitioner. Obviously this presupposes that as a result of the Magistrate's order the investigation has come to an end. It also presupposes that the Magistrate has power to stifle proceedings in investigation by the Police. I am afraid the Magistrate does not possess any such power. The proceedings before the police in investigation are proceedings over which the police alone have full control, and neither the Magistrate nor even this Court has power to interfere with such proceedings. If authority was needed for the proposition it might be found in -- 'King-Emperor v. Nazar Ahmad , where the Judicial Committee held that even the High Court had no power under Section 561-A of the Code of Criminal Procedure to quash proceedings by way of investigation taken and being carried -on by the police in pursuance of information disclosing cognizable offence, whether upon a formal first information report or other information received.
13. The learned Magistrate seems to be of the view that his order of discharge on the ground of absence of evidence was sufficient to terminate the proceedings before the police. He is quite clearly mistaken. The Magistrate was not in seisin of the matter, and as I have already indicated, only remand orders had been made. Time had, not yet come for the Magistrate to take cognisance of the offence, and unless he took cognisance, he could not possibly make an order under Section 553 of the Code of Criminal Procedure. There was no case which was being heard by the Magistrate since no cognisance had been taken by him of any case as between the petitioner and the accused. It is claimed that the Magistrate made his order of discharge under Section 63 of the Code of Criminal Procedure; but once it is said that the discharge was made under that section, the order under Section 553 of the Code of Criminal Procedure becomes wholly indefensible. As far as I can see the effect of the Magistrate's order, dated the 23rd November, 1956, is merely that the accused, has been discharged; but that cannot have the effect of interfering with the investigation if 'such investigation is still in progress. That investigation will come to its natural end only under Section 173 of the Code of Criminal Procedure, either by a final report or by a charge-sheet.
14. On the merits of the matter, I do not wish to express any opinion. It may be that the Magistrate's views as regards the worthlessness of the allegations will he proved to be true; but I am not concerned with that aspect of the matter. I am only concerned, with the question as to whether the order purported to have been made under Section 553 of the Code of Criminal Procedure was a legal order.
15. In the result, this Rule is made absolute, and the order of the Magistrate, dated the23rd November, 1956, is set aside, and proceedings before the police will remain unaffected bythe Magistrate's order, dated the 23rd November,1956.