1. This rule has been obtained by the two accused who have been convicted of having committed theft. The first accused Yakub Sheikh has been sentenced to pay a fine of Rs. 200 in default to undergo rigorous imprisonment for three months. The second accused Malek Sheikh has been dealt with in accordance with the provisions of Section 562, Criminal P. C. and released after due admonition. Half of the fine has been directed to be paid to Kalu Santal as compensation.
2. The case for the prosecution is that Kalu Santal was in possession of certain land as the adiar of one Charan Das Chatterjee. He grew paddy on the land and reaped it. On the date of occurrence the two accused persons came there and removed paddy and straw in spite of protests. The defence taken is a denial of the occurrence and it was contended on behalf of the defence that the land on which the paddy was grown belonged to the accused Yakub. The learned Magistrate has disbelieved the defence case and convicted the accused. On appeal the Additional District Magistrate has after criticising the judgment of the learned trial Magistrate somewhat adversely upheld the decision and dismissed the appeal.
3. The point raised before me is a pure point of law. It is said that the learned Magistrate has committed certain illegalities in the trial which are fatal and that therefore the entire proceedings are without jurisdiction. The facts which give rise to this contention are these: Kalu Santal lodged a petition of complaint before the Magistrate making the allegations which are the substance of the prosecution. The learned Magistrate passed an order upon the complaint in these terms :
'Send this to O/C Kalna p. s. for taking cognizance under Section 379/147, Penal Code, and finishing investigation early.'
Upon this order being communicated to the police they investigated the case and returned a charge sheet Thereafter the accused were tried. I may mention here that on the petition of complaint being filed the complainant was not examined on oath.
4. It is contended that the learned Magistrate has erred in law in sending the matter to police and asking the police to take cognizance. He has also erred in law in not examining the complainant on oath. In my opinion both these grounds are substantial. The law is quite clear on the point. When a complaint is filed before a Magistrate, unless there is any legal bar to the entertainment of the complaint such as is mentioned in Section 195, Criminal P. C., and any other section, the Magistrate is bound to take cognizance of the offence. He has no option in the matter. Section 190 (1), Criminal P. C., is quite clear. It says that a Magistrate may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a report in writing of such facts made by any police officer, and (c) upon information received from any person other than a police officer. The word 'may ' here means must. The word 'may' is used because there are three separate sets of circumstances laid down upon which cognizance may be taken. This is the view I held in the case of A. C. Samaddar v. Suresh Chandra, 53 C. W. N 270 : (A. I. R. (36) 1949 Cal. 197 : 50 Cr. L. J. 368) relying upon the case of Kashmiri Lal Garga v. Ismail, an unreported decision which is Cri. Ref. No. 40 of 1940. In this case the Magistrate should have taken cognizance of the complaint as there was no legal bar against taking such cognizance. That being so, he had no jurisdiction to refer the matter to the police directing the police to take cognizance and investigate. The learned Magistrate apparently relied upon the provisions of Section 156 (3), Criminal P. C. That sub section has no application whatsoever in a case where cognizance is taken upon a complaint. This view was also expressed by me in the abovementioned case and I find that the same view has been taken in the case of Pulin Behari v. The King, by the Chief Justice and Das J. The case is reported in 53 C. W. N. 653.
5. Next, the learned Magistrate when he takes cognizance upon a complaint is bound under the provisions of Section 200, Criminal P. C., to examine the complainant on oath at once. The failure to do this is fatal. This was held in the abovementioned two cases. It is thus clear that the Magistrate has committed several illegalities in this case.
6. It was argued by learned advocate appearing for the Crown that although the facts disclosed that the Magistrate had committed certain irregularities, they were curable by virtue of the provisions of Section 537, Criminal P. C., inasmuch as the accused were not prejudiced by these irregularities. In my opinion this argument cannot be accepted. These are not mere irregularities but illegalities which affect the question of jurisdiction of the Magistrate. The learned Magistrate really had no jurisdiction to try the case upon a charge sheet once the petition of complaint was filed, nor did he have any jurisdiction to refer the matter to the police in order that the police might take cognizance of the offence. These errors relate to jurisdiction and are not mere irregularities.
7. In my opinion the trial has been without jurisdiction and, therefore, the order of conviction and sentence must be set aside. The case shall be retried by some other Magistrate to be appointed by the District Magistrate for this purpose. He shall try the case according to law and in the light of the observations made above. The rule is made absolute.