1. In this case a rule was issued upon the Chief Presidency Magistrate of Calcutta to show cause why the order complained of should not be set aside, the 'order being-one in which he directed the petition of complaint of the petitioners to be filed and so far as it affected certain of the accused he dismissed the complaint. This case comes before us under Section 435, Criminal P.C. The petition is headed, 'Criminal Revisional Jurisdiction. In the matter of an application under Section 439, Criminal P.C.,' there were two complainants petitioners Sashadhar Acharjya. and Suhashini Debi. They complained against
Sir Charles Tegart, Commissioner of Police and about 20 other police sergeants and other police officers names unknown led by Sir Charles Tegart to French Chandernagore and Nalini Mazumdar, Manmatha Sen, a Mahomedan Sub-Inspector and some other officers of the special branch of the Calcutta police.
2. The facts set out in the petition which consists of 16 paragraphs, 'may be concisely said to be that the petitioners-were British subjects residing in Chandernagore, that in the early morning of 2nd September 1930 at about 2-45 a. m. the accused police party (so it is described in the petition), led by Sir Charles Tegart, Commissioner of Police, went to the premises oil the petitioners and by force entered the house and arrested the petitioners and others, that firearms were used, that one person was killed and that soon afterwards, that is to say about 4 o'clock, the French police arrived at the premises and the petitioners were removed to the French police station. Subsequently they were taken to the British Jail at Hooghly about 10-30 a. m. and from there on 3rd September to Lall Bazar and to the Presidency Jail. On 6th October and 29th October respectively they were discharged from custody. The petition goes on to say that they complained of these actions of the police party to the Chief Presidency Magistrate and he, after various proceedings, made the order to which I have referred dismissing the complaint as regards Sir Charles Tegart and Nalini Muzumdar and filing it with regard to Manmatha Sen-the difference in the two modes of proceeding being due to the fact that he considered that no complaint could be made or enquired into against the first two of the accused because necessary sanction for their prosecution had not been obtained from the Local Government. With regard to accused 3 the Magistrate seems to have been under the impression that a further petition would be made by the complainants and he acknowledged that he might have been under some mistake with regard to this accused. Evidently ho was under the impression for some time that another petition had been filed. It was for these reasons that the learned Magistrate ordered that part of the petitioners' complaint to be filed. The petition of complaint is a somewhat extraordinary document. It consists of a very large number of paragraphs and a great deal of irrelevant matter.
3. The learned advocate who has appeared for the petitioners has more than once excused himself on the ground of lack of experience; but it seems to us that what-over his experience may be he has conducted this case with considerable ability and that it is perfectly obvious from the perusal of these voluminous documents, lists of cases, authorities, text-books and so on that he has been at enormous pains to prepare this case properly on behalf of his clients. The only difficulty is that in his enthusiasm he has put so much, both into the petition to the learned Magistrate and into his arguments before this Court that it has some-times been difficult to appreciate or grasp what really are the relevant points upon which he desires to base his case. I am not surprised that the learned Magistrate on reading this petition, experienced considerable difficulty in appreciating what it was that he was expected to deal with. We should have been justified in refusing to interfere or to take any further action simply on the ground that the petition of complaint is not in any kind of order. If the petitioners had put forward a simple and concise petition of complaint it would have been much easier for the learned Magistrate to deal with it. The first and most prominent fault is that it is a joint complaint which so far as we know is not contemplated by the Criminal Procedure Code. The duties of a Magistrate under Section 200, Criminal P.C. make this clear, because in taking cognizance of an offence on complaint he must at once examine the complainant upon oath and it is obvious that if there are two or more complain-ants on the same complaint it is physically impossible to fulfil the provisions of that section.
4. The learned advocate has not been able to point out to us any section of the Code which shows that a joint complaint is contemplated by the Code. This alone would be a sufficient ground for refusing to interfere. However though the complaint is not in order we are not disposed to deal with the matter simply on that technical point. The learned advocate's-hard work deserves more serious consideration by this Court. But whatever it is and however faulty, it is clearly a petition of complaint under the Criminal Procedure Code and the application to the learned Magistrate and the whole of the proceedings before him as well as the proceedings in this Court are all proceedings under the Code. That being so the learned Advocate-General has taken a preliminary point that so far as the first two of the accused are concerned the complaint cannot be made nor can it be inquired into because as. he has shown us these two persons are public servants who are not removable from their office save with the sanction of the Local Government. Such persons are protected by Section 197, Criminal P.C., that is to say, they cannot be prosecuted until the previous sanction of the Local Government has been obtained and it is an admitted fact that that sanction has been refused in this case. No application for sanction was properly made.
5. It is true that the learned Magistrate has forwarded to the Government the relevant passages in the petition which referred to a request that sanction should be asked for, and therefore in an indirect way a petition asking for sanction did reach the Government but the Government refused to comply with the request-Therefore in substance the request for sanction was made and was refused, though the application was not in proper form. Whether, if the application had bean in proper form and had been a concise and clear document setting out the facts, the Government's decision would have been the same we cannot say. But I am not surprised that, upon the facts as submitted and in the way stated in the petition the Government saw no reason to grant the sanction asked for.
6. Section 197 refers to persons accused of any offence, and the word ' offence' is. defined in Section 4, Sub-section (o) as meaning any act or omission made punishable by any law for the time being in force. But the learned advocate for the petitioners has argued that the section does not apply to the facts of this case because the offence charged was something done in Chandernagore, that is to say, outside British India and in a foreign country. Such an offence is not an offence which can be dealt with under the Criminal Procedure Code nor is it an offence which comes within the provisions of the Indian Penal Code. And further he has argued that under Clause (19) of the original Charter of the Supreme Court power and jurisdiction is given to the High Court to inquire into and try offences committed by British subjects in Asia, Africa or America within certain limits.
7. He has further pointed out that this jurisdiction has been carried forward to the present time by subsequent Letters Patent and is still a power or jurisdiction which the High Court has. He further argues that there is ample provision in the Charter and the Letters Patent enabling the High Court to order any Magistrate to hold an inquiry and if necessary to commit such an accused person to the High Court Sessions to be tried. That such a power of ordering a Magistrate to inquire, in a special case, is held by the High Court, is plain from the case of the Oriental Government Security Life Assurance Co. Ltd. v. Masilamany Pillay 2 Weir. 146 Cr.
8. A difficulty however arises because the present proceedings are not proceedings such as have been suggested by the learned advocate but are proceedings under the ordinary procedure of the Criminal Procedure Code. This rule was issued under the provisions of that Code and all proceedings before the Magistrate were brought under the provisions of that Code. Whether therefore such a special power or jurisdiction is still held by the High Court under the Charter and Letters Patent as argued by the learned advocate, is a question which it is' unnecessary to decide. Upon the present application it does not arise because the proceedings already taken are not proceedings under that special jurisdiction. They would have to be started either by information laid by the Advocate-General, or by an application to the High Court in its Original Jurisdiction for an order to hold such an inquiry.
9. It is quite obvious that no such application has been made in this case, and I think it is equally clear that this Bench, as at present constituted, would have no jurisdiction to deal with such an application. There are undoubtedly remedies which the petitioners can pursue if they consider that they have a case which ought to be inquired into, but it cannot be done in the present proceedings. Apart from the question of proceedings in British India, the most obvious remedy would be to prosecute the offenders in the foreign country where the illegal acts have been done, which would avoid all such complications as have arisen herein. According to the learned advocate what has been done is clearly contrary to French law which is in force in Chandernagore. However that is for the learned advocate and his clients to consider.
10. The result therefore is that we cannot interfere with the decision of the learned Magistrate so far as the two accused are concerned who are covered by Section 197, Criminal P.C. With regard to accused 3 Manmath Sen the learned Advocate-General has already stated that so far as any complaint is made against him for anything, that is to say, that took place in Calcutta nobody has any objection to an inquiry being held into his actions. It is therefore open to the petitioner to put forward a complaint as against him before the learned Chief Presidency Magistrate. It cannot be done on this present petition. There must be a fresh petition of complaint preferred by one complainant or else two separate petitions of complaint by the two complainants respectively if they are both affected. That must be in proper form clearly and concisely setting out the facts of which the petitioner or petitioners complain against accused 3 Manmatha Sen. If this is done, doubtless the learned Chief Presidency Magistrate, if he thinks necessary, will hold a suitable inquiry under the provisions of the Criminal Procedure Code. This rule therefore except for this direction, is discharged.
S.K. Ghose, J.
11. I agree.