1. On the 14th September a Sub-inspector of the Calcutta Police presented a written charge to the Second Presidency Magistrate charging eight persona with offenses under Sections 404 and 404/120B, Indian Penal Code. The complaint was in these terms: 'All the accused persons are charged with dishonestly misappropriating in converting to their own use on or about the 28th and 29th August 1920 at Jorabagan gold and silver ornaments, viz., gold leoklaces, gold churies, gold makris, gold mals and silver ret, silver mats, etc., and cash money, etc, totaling to the value of about Rs. 3,000, knowing that such properties were in the possession of deceased Bhairabi Dassi of 72/2, Nimtolla Ghat Street at the time of her decrease and have not time been in the possession of any person legally entitled to such possession. Section 404 Indian Penal Code. All the accused are further charged with the offence of criminal conspiracy on or about the aforesaid time and plane for committing the aforesaid offense under Section 404, Indian Penal Code.' The Sub-Inspector, when examined by the Magistrate, stated that he had held an enquiry into the matter under the orders of the Assistant Commissioner of Police. On this the Magistrate passed an order that the papers of the enquiry should be put up the next day. On the following day the Sub-Inspector put in an amended complaint, which was in the game terms as that of the 14th, but the petitioner's name, which was not in the first complaint, was inserted in the place of that of one of the original accused. The Magistrate examined the Sub-Inspector and then passed an order 'Perused papers of the enquiry, warrant against the accused, Section 404/120- B, Indian Penal Code.' The petitioner surrendered on the 17th September before the warrant was executed. By the 12th October all the accused had appeared in Court and on the 1st November the petitioner obtained the present Rule calling on the Chief Presidency Magistrate to show cause why the proceedings should not be quashed, or, in the alternative, the case should not be transferred to some other Magistrate.
2. The first point taken is, that the sanction required by Section 196(A)(2) not having been given the Court was not competent to take acguizance of the offence under Section 404/120B. The Magistrate in his explanation has stated that the provisions of Section 196(A)(2) were overlooked in issuing process of under Section 123B, that the proceedings under that Section would be dropped, and the case would proceed only under Section 404, Indian Penal Code. In respect of the charge under Section 404/120B therefore, the proceedings must be quashed.
3. It remains, therefore, to consider the matter from the point of view that the proceedings are being held under Section 404 only. In the first place, reference may be made to an apparent error, which, if it is an error, is one of form rather than of substance. The Magistrate's order was 'warrant against the accused, Section 404/120B, Penal Code.' This would ordinarily be read as meaning that a warrant was to be issued under Section 120B, read with Section 404, for there cannot be an offence under Section 120B, except in conjunction with some other section. And if it was intended to proceed only on the charge of conspiracy to commit the offence under Section 404, the want of sanction would terminate the proceeding. Now the complaint was under Section 404 as well as under Section 404/120B, the Magistrate issued his warrants under both Sections, the bail-bond for the appearance of the petitioner was executed with reference to both Sections and the Magistrate in his explanation has written as if it had been intended that the case should proceed under both sections. It is most probable then that the Magistrate did intend, when he ordered issue of warrants, to proceed under both sections and the matter having been argued before us as if it was being dealt with under both sections, I propose to deal with it on that footing.
4. It is argued for the petitioner, in the first plane, that as the offence under Section 404 is not cognizable by the Polios the charge presented to the Magistrate must be taken to be a complaint within the meaning of the Code of Criminal Procedure and, therefore, the Magistrate could only take cognizance under Section 196(1)(a), and not under Section 190(1)(6), the latter clause, it is argued, having reference only to a Police report under Section 173. The views taken by the Courts have not always been uniform as to whether the term Police report 'in Section 190(1)(6) bears this restricted meaning or whether it has a wider significance. In the Mofussil there might be no difficulty in giving it the restricted meaning, bat in considering the question as a whole it must be remembered that Section 173 does not apply to the Police in Calcutta. Without expressing an opinion on the point I shall assume, for the purpose of argument, that the charge presented to the Magistrate was a complaint within the meaning of the Code and that the Magistrate was taking cognizance under Section 190(1)(a).
5. The next point taken is, that the Polios Officer who lodged the complaint was not speaking of matter within his personal knowledge and that before a Magistrate can take cognizance on complaint he ought to have before him, as complainant, someone with a personal knowledge of the fasts. It is argued that otherwise and a used person would have no remedy if the complaint eventually proved false. Now the definition of complaint in Section 4(h) does not contain any limitation such as that contended for nor does Section 190, nor do I think we ought to put any. If a complainant is not speaking from personal knowledge, a Magistrate taking cognizance would exercise a wise discretion in making the enquiry which he is authorised to do by Section 202, but we cannot say that he is compelled to do so, In fast, the learned Pleader for the petitioner finally admitted that he could not put the point higher than this, that, as a matter of practical expediency, the Magistrate ought not to proceed on the complaint of a person not himself having a knowledge of the facts.
6. The next argument addressed to us was that the complaint was not a proper complaint, as it merely re produced the language of Section 404, Indian Penal Cole, without such a statement of fasts as the law requires. Now the definition of 'complaint' does not require any statement of facts beyond an allegation that some person has committed au offence, but if that definition is read into Section 190(1)(a) it is clear that before the Magistrate takes cognizance he must have before him an allegation of facts constituting the offence, and I do not consider a mere repetition of the words of a Section of the Penal Code a proper compliance with the provisions of the sub section. Now, a complaint may be made orally or in writing and possibly the object of Section 200, requiring the Magistrate to examine the complainant, was that the facts constituting the offence might be ascertained when, in a written complaint, they were not given. Bat when the Magistrate is a Presidency Magistrate the examination of the complainant need not be reduced to writing. The practical effect of this is, that when a written complaint presented to a Presidency Magistrate does not contain an allegation of facts constituting the complaint, if the Magistrate examining the complainant does not reduce the examination to writing there may be no written record of the facts constituting the offense For some reasons or other, the Legislature has thought fit to allow Presidency Magistrates greater latitude in respect of the examination of complainants than Magistrates in the Mofussil enjoy: perhaps, it considered that ordinarily they would be officers of greater experience and, therefore, reposed greater confidence in them. Whatever the reason, the result appears to be that which I have stated and we must presume that those in whom the Legislature has placed this confidence will not abase the trust bat will exercise their powers honestly and with due regard to the provisions of law. On the complaint against the petitioner on the 15th September the Magistrate has made no record of his examination of the complainant, be has merely noted the fast that he did examine him. Sitting in revision, we cannot any that the Magistrate ought to have done what the law does not require; we must presume that, before he issued process, he had before him an allegation of fasts constituting the offence.
7. On the question of transfer, the learned Pleader for the petitioner at first advanced the argument that the Magistrate was disqualified from trying the case by reason of the provisions of Section 191; but re arising that he could not, consistently with his previous arguments, urge that the Magistrate had taken cognizance under Section 190(1)(c) he did not press this argument. He did, however, contend that the Magistrate having perused the Police diaries before issuing process ought not to try the case, not on the ground that he was disqualified by the mere fact of having read the diaries, an argument which could not be seriously advanced when the law allows a Magistrate to use Police diaries for certain purposes during the trial of a case, but on the ground that in this particular case it was undesirable that the Magistrate should try the ease. To ascertain whether there was anything in the diaries which was likely to prejudice the Magistrate we sent for them and, having perused them ourselves, have come to the conclusion that there is nothing in their contents such as would justify our ordering a transfer of the case to another Magistrate.
8. The Rule, therefore, is discharged subject to this that the proceedings under Section 120B read with Section 404 are quashed.
9. I agree.