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Emperor Vs. ColIn Mackenzie Mackay - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal470
AppellantEmperor
RespondentColIn Mackenzie Mackay
Cases ReferredEmperor v. Upendra Nath Das
Excerpt:
- walmsley, j.1. the petitioner gave evidence in a case tried by the chief presidency magistrate. part of his evidence was regarded as false and the learned magistrate deemed it necessary to take proceedings under section 476, criminal p.c. he accordingly drew up a complaint. this complaint he preferred in his own court and then he transferred it to mr. khan, presidency magistrate, for disposal. the latter issued process, held an enquiry and committed the petitioner for trial. objection was taken at the trial that the commitment was illegal, but the presiding judge, mr. justice b.b. ghose, overruled the objection. the petitioner was then tried and convicted. the learned advocate-general, under the provisions of clause 26 of the letters patent, has granted a fiat certifying that in his.....
Judgment:

Walmsley, J.

1. The petitioner gave evidence in a case tried by the Chief Presidency Magistrate. Part of his evidence was regarded as false and the learned Magistrate deemed it necessary to take proceedings under Section 476, Criminal P.C. He accordingly drew up a complaint. This complaint he preferred in his own Court and then he transferred it to Mr. Khan, Presidency Magistrate, for disposal. The latter issued process, held an enquiry and committed the petitioner for trial. Objection was taken at the trial that the commitment was illegal, but the presiding Judge, Mr. Justice B.B. Ghose, overruled the objection. The petitioner was then tried and convicted. The learned Advocate-General, under the provisions of Clause 26 of the Letters Patent, has granted a fiat certifying that in his judgment the questions whether under Section 476, Criminal P.C., the Chief Presidency Magistrate was competent to make a complaint to himself or take cognizance of the said case and transfer the same and whether the Third Presidency Magistrate (that is Mr. Khan) was competent, under the law, to commit the accused for trial to the Sessions, should be further considered by the High Court.

2. It is worth nothing at the outset that one piece of information given to the learned Advocate-General was incorrect; process was issued by Mr. Khan and not by the Chief Presidency Magistrate himself.

3. The contention on behalf of the petitioner is that the Chief Presidency Magistrate's procedure was illegal, and that the commitment and the conviction must necessarily be bad.

4. As Presidency Magistrates are not Magistrates of the First Class under the provisions of Section 6 of the Code, the wording of Section 476, Criminal P.C., would present difficulty in a case where the false evidence is given before the Chief Presidency Magistrate himself, if there were only one Chief Presidency Magistrate; but at the time there was an Additional Chief Presidency Magistrate, and apparently the complaint might have been forwarded to him. That is what I think the learned Magistrate should have done. He did not do so, however, and we have to consider whether the course adopted was such as to vitiate subsequent proceedings.

5. It is said that there was no complaint, because a person cannot complain to himself. Ordinarily a complaint implies at least three persons; a person complaining, a person against whom the complaint is made and a third person to whom the complaint is addressed. In the Code the word is defined thus: 'A complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person has committed an offence.' The same implication is contained in this definition, but it is a narrow view to hold that there was no complaint because the Magistrate preferred it in his own Court. It is more important to consider what he did after preferring it; and it is clear that he at once sent the complaint to Mr. Khan for disposal; in other words, the learned Magistrate after making the complaint was careful to abstain from himself making any order adverse to the petitioner. Then the argument is that he took cognizance of the complaint before transferring it to Mr. Khan. The expression 'taking cognizance' is not defined or explained in the Code, and the argument that the Chief Presidency Magistrate took cognizance of the complaint is founded on the words of Section 192 which imply that a Magistrate can only transfer cases of which he has taken cognizance. This argument appears to be technically correct and it leads us to this conclusion that the only acts of the Chief Presidency Magistrate to which exception can be taken are that he received the complaint from himself and forwarded it to Mr. Khan for disposal.

6. In the hands of Mr. Khan the complaint was like any other complaint, save that a preliminary inquiry under Section 202 was barred. Mr. Khan had full authority to dismiss it or to issue process; he decided to issue process and there is no reason to suppose that in making that decision he did not apply his mind judicially to the allegations made in the complaint.

7. The question we have to decide is whether there has been such a failure to comply with the terms of the law as to render the proceedings bad. For the petitioner it is said that the procedure was illegal, and that the illegality was of such a character as to go to the root of the case.

8. In my judgment such a description of what was done is extravagant. Technically I think the learned Magistrate made a mistake, but substantially his procedure was correct; he made the complaint and received it, but then he refused to pass any order himself for the issue of process. Another Magistrate decided that process should issue and afterwards held a proper inquiry. It is not seriously suggested that the petitioner suffered any prejudice. I think, therefore, that the learned Magistrate committed nothing worse than an irregularity, which may be disregarded.

9. There is another aspect of the matter. Mr. Justice Ghose observed that if he gave effect to the objection, there would be a fresh inquiry, perhaps before the same Magistrate, and he decided to go on with the trial. I doubt whether there was any other course open to him. I am disposed to think that the petitioner's remedy was to move this Court in its revisional capacity to quash the commitment. I do not, however, rest my judgment on this view, but on the ground that there was, in substance, compliance with the provisions of the Code.

Rankin, J.

10. When the Chief Presidency Magistrate decided to make the complaint in this case to himself, he adopted a course unknown to the law. A document which is not addressed to a person other than the writer is not a complaint either in the ordinary sense or in the sense in which the word is used in Section 476 of the Criminal Procedure Code. The fact that the word 'complaint' appears in the heading or in any other part of the document does not make it a complaint or bring it any nearer to being a complaint. It is not an allegation made to a Magistrate [Section 4(1)(h)]. Such a document is not merely irregular or defective as a complaint; it is one of which the general character and governing intention are not those of a complaint. The meaning of Section 476 is that a judicial officer minded to initiate proceedings for offences therein described must initiate them before another person who is a Magistrate of the First Class having jurisdiction and must do so by making and forwarding a complaint to him.

11. However much or little is meant in the Criminal Procedure Code by 'taking cognizance of an offence' or 'taking cognizance of an any case' or 'taking cognizance of an offence or complaint the mental act of a person scrutinizing his own 'complaint' and determining to take action thereupon is materially different from anything contemplated by the Code. A complaint under Section 190 is something received by a Magistrate and cognizance of complaint' imports and implies this. The course taken in this case is not substantially different from the process of taking cognizance upon the Magistrate's own knowledge or suspicion (Section 190)--a proceeding which Sections 476 and 195 clearly forbid. In another view it is much the same as if Mr. Roxburgh had laid a complaint before Mr. Khan and Mr. Khan had proceeded to deal with it notwithstanding that he is not a Magistrate of the First Class.

12. Again an order whereby a complainant transfers his own complaint to a judicial officer of his own choosing for investigation and disposal cannot be otherwise described than as an illegal order. As against an accused an order of transfer is by itself no foundation of criminal jurisdiction, but, apart from this consideration, the order in the present case, though not within Section 556 was such that the accused was not obliged to regard it as conferring jurisdiction upon anyone or indeed as operating anything.

13. I am not aware of the difficulty of applying or of correctly appreciating new provisions in our lengthy and meticulous Procedure Code, nor of the stress under which the Court of the Chief Presidency Magistrate has to transact a great volume of business. It is not difficult to see that in a case like this the notion of making a complaint to the complainant himself may have seemed a very harmless adaptation of the ordinary course. It may, I think, be conceded that in this very case the same enquiry and the same commitment might and probably would have resulted if the proceedings had been held in accordance with law. Still it remains undeniable that the statute for reasons of policy has laid down--and this partly if not wholly in the interest of accused persons--that no proceedings under Section 195 of the Indian Penal Code shall be had except upon certain conditions; that these conditions were at no time fulfilled; that no one had any right or duty in their absence to hold any magisterial enquiry into the alleged offence of this accused and that Mr. Khan had in law no more valid ground for exercising with regard to it his general jurisdiction as a Presidency Magistrate than any other Presidency Magistrate. The proceedings from beginning to end were illegal in the sense that the statute had expressly forbidden them to be had. Their commencement and continuance was a breach of public order: in principle a grave breach, if not in result.

14. In these circumstances, the accused was committed to the High Court and tried by my brother Ghose and a special jury at the Fourth Criminal Sessions of 1925. Before the plea of the accused was taken it was objected by counsel on his behalf that the commitment was illegal. In the Advocate-General's certificate this is described--with what accuracy I will not stop to consider--as a plea in demurrer. In any case the learned Judge overruled it. The accused was thereupon called on to plead, and after pleading 'not guilty' was convicted on the evidence and sentenced to one year's imprisonment.

15. The certificate of the Advocate-General under Clause 26 of the Letters Patent refers to us these questions--(1) whether under Section 476 the Chief Presidency Magistrate was competent (a) to make a complaint to himself; or (b) take cognizance of the case; and (c) transfer the same: (2) whether the Third Presidency Magistrate was competent, under the law to commit the accused for trial to the Sessions.

16. It is plain enough that this last question was answered in the affirmative at the trial by the learned Judge. It is not perhaps quite so clear that the other questions--for they are more than one--were answered in the affirmative by the learned Judge. I think, however, that they were, having regard to the argument for the Crown which his judgment recites and to the fact that the learned Judge was not persuaded that the statute contained any provision applicable to the case of an alleged offence under Section 195 of the Indian Penal Code, when it is charged as having taken place before the Chief Presidency Magistrate himself.

17. Most unfortunately the attention of the learned Judge was not called to Section 18(4) of the Criminal Procedure Code as it now stands nor to the fact that action had been taken under it to appoint an Additional Chief Presidency Magistrate with power to receive complaints under Section 476. No doubt but for Section 18(4) the Court would have had to choose between the view that persons committing perjury before the Chief Presidency Magistrate, could not be prosecuted at all and the view that he could make a complaint to himself and himself take cognizance of the case. I must not be understood to express any opinion as to what would have been the correct answer to this dilemma. But now that the whole matter has been cleared up it is manifest that there was no necessity or justification for any departure from ordinary procedure.

18. In my opinion the answer to all the questions raised by the Advocate-General's certificate is in the negative. The Chief Presidency Magistrate was no more competent to complain to himself than to complain of himself. He was not competent to take cognizance of the alleged offence on his own complaint any more than he was competent to do so on his own knowledge or suspicion. His order of transfer had a separate and independent illegality of its own and conferred no authority of any sort on Mr. Khan. So far as the accused is concerned his right, unless and until something happened to abridge his right, was to regard the proceedings before Mr. Khan as being wholly unauthorized by law. Mr. Khan at the time when he made his commitment order was not competent under the law to commit the accused for trial.

19. On this view there has been error in the decision of these points of law decided by the Courts of original criminal jurisdiction and referred by the Advocate-General to be further considered by the Court. Accordingly under Clause 26 of the Letters Patent this Bench has power to pass such judgment and sentence as to it shall seem right.

20. In my judgment the correct order is to set aside the conviction, and all the proceedings from the commencement including the so-called 'complaint' and to direct that the accused be released.

21. So far as I understand, the objections to this course are two:

22. First, it may be said that the learned Judge had no power or duty to enquire into the validity of the commitment and that although he may have proceeded upon erroneous reasons his actual decision to proceed with the trial was correct.

23. Secondly, it may be said that the defect in this case should be treated as coming within Section 537 of the Code.

24. In my judgment effect should not be given to either of these objections. (1) Section 215 of the Criminal Procedure Code enacts that a commitment once made under Section 213 by a competent Magistrate can be quashed by the High Court only and only on a point of law. It is not necessary for the present purpose to decide whether in the case of a commitment to the High Court an application to quash should be made to the appellate Bench or to the Judge for the time being exercising original criminal jurisdiction. In Phanindra Nath Mitra v. Emperor [1909] 36 Cal. 48, Brett, J., thought it doubtful whether the Appellate Side of this Court had power to quash such a commitment. On the other hand, Spencer, J., in Crown Prosecutor v. (sic) [1919] 42 Mad. 83 held that the application should be made on the Appellate Side and it was accordingly made and determined before a Divisional Bench. I find from the Minute Books of the Crown office that in the case of R. v. Chabi [unreported] Fletcher, J., sitting at Sessions in May 1919 being of opinion that the alleged offence had been committed, if at all, outside the jurisdiction of the committing Magistrate and of this Court adjourned the case to enable an application to be made on the Appellate Side to have the commitment set aside. Again in February 1912, Stephen, J., sitting at Sessions, on being informed that the evidence against the first of several accused had not been taken by the Magistrate in presence of the first accused held that the commitment was not legal and must be quashed and the first accused will not be tried with the others at this trial. As the Crown does not proceed against him he is discharged:' R. v. Mahadev Bhujah [unreported.] It seems to be reasonably clear that if the present case had been committed to a Court of Sessions the Sessions Judge if he thought the commitment bad, would have referred it to the High Court.

25. Now the learned trial Judge having decided that the commitment was not illegal did not have occasion to apply his mind, and so far as I see, did not apply his mind, to the question whether he should proceed on an illegal commitment. His decision took away all ground for an application that an order like that made by Fletcher, J., or Stephen, J., might be made here. It is nothing to the point to say that the nature of the objection in the previous cases to the order of commitment was distinguishable from the nature of the objection in the present case. I will assume--though I am far from asserting--that a commitment made by a Magistrate clothed under Section 206 with a general or formal jurisdiction to make commitments, if made in respect of an offence alleged to have been committed within his jurisdiction and to a Court by which such offence is triable, cannot be quashed by the Sessions Judge. I will assume further--though, again, I do not assert--that in such a case no plea to the jurisdiction can be made by the accused in respect of any illegality in the previous proceedings. I will take it also that an accused is not entitled as of right to an adjournment of the trial in any circumstances such as here arose. Even so, in a regular appeal, the question, and the only question besides the legality of commitment, would have been whether Section 537 of the Criminal Procedure Code applied to this case and no other question would have arisen even if objection had not been taken at the trial. Now what is the difference of position under Clause 26 of the Letters Patent and upon the present certificate of the Advocate-General? It is only that we cannot interfere unless a point of law referred to us has been wrongly decided by the trial Judge, given that our right and duty in passing judgment is subject to no extraordinary limitations. An error in law which has had no consequences prejudicial to the accused would warrant no interference with the conviction. But in the case before us I cannot bring myself to, doubt that if the attention of the learned Judge had been drawn to Section 18 of the Criminal Procedure Code and the provision made thereunder, he would have made short work of any supposed difficulties as to his proper course. Had he thought the magisterial proceedings to be contrary to law and the commitment unauthorized, one may respectfully presume that he would have taken some steps with a view to terminate an illegal prosecution. If he had decided that the legality of the magisterial enquiry and the validity of the commitment were questions that he could not determine, one may respectfully presume that he would at least have considered whether the correct procedure was so clear and the accused's objection so little meritorious that his right to object should be treated as at an end and the trial held. In fact the learned Judge proceeded with the trial because he held the complaint and commitment good. That his decision produced no consequences to the prejudice of the accused is an impossible contention. I do not myself presume to doubt that had he thought the commitment irregular--let alone illegal--he would have exacted from the prosecution the same scrupulous care of the prisoner's legal rights as was shown in the case already referred to before Stephen, J. In that case the evidence of two witnesses which had been taken in the presence of co-accused was read over to the first accused instead of being taken over again. I would point out that counsel for the Crown thought it his duty to point out this defect, and the Judge thought it his duty to see that the prisoner was not tried. In my opinion that is the right view.

26. (2) It remains only to deal with Section 537 of the Criminal Procedure Code. It was argued by learned Counsel for the accused that this section cannot be applied under Clause 26 of the Letters Patent. The section, however, is not ah enabling section but one which consists of a prohibition. I see no reason to suppose that we are obliged under the Letters Patent to do what this section prohibits a Court of appeal or revision to do. It matters nothing in my opinion whether this Bench is sitting on appeal or revision within the exact meaning of Section 537 but the leading case upon this section [Subramaniyah Ayyar v. Emperor [1902] 25 Mad. 61.] seems sufficient to show that Section 537 is applicable under Clause 26 of the Letters Patent.

27. In my judgment the commitment in this case was not merely irregular but illegal and any Court having jurisdiction to quash it would have erred in law if it had refused to quash it. As the case stands at this moment no Court can take cognizance of the alleged offence because there has been no complaint such as would entitle it so to do under Section 190 of the Criminal Procedure Code. There is here no question of error, omission or irregularity in the complaint. The proceedings have been had throughout in defiance of the express provisions of the Code and of fundamental principles of law. They have been had coram non judice; and save for limited and special purposes which have reference for the most part to persons other than the accused they are not judicial proceedings in any exact sense of the words.

28. It is true that in the case of Empress v. Kamir [1882] 7 Cal. 662 a commitment to the Court of Sessions which was made so far as can be seen in obedience to an illegal order of the Sessions Judge and without any enquiry whatsoever was held by a Division Bench of this Court to come within Section 283 of the Criminal P.C. of 1872. 'These are, no doubt,' says the judgment, 'serious irregularities and more especially the first which is a direct transgression of the law; and if they had been brought to the notice of this Court before the trial had taken place the commitment would properly have been quashed.' It seems to me to be a serious question whether this decision did not go beyond 'the remedying of mere irregularities,' to use Lord Halsbury's words in the subsequent case [Subramaniyah Ayyar v. Emperor [1902] 25 Mad. 61], but in any event it would be a further and an unwarrantable step to treat the case before us in the same manner notwithstanding the objection made and overruled at the trial.

Cuming, J.

29. This is an application under Clause 26 of the Letters Patent on a certificate from the Advocate-General asking the Court to review the case of one Colin Mackenzie Mackay who was found guilty at the Fourth Criminal Sessions presided over by Mr. Justice B.B. Ghose of offences under Section 193, and Section 195, I.P.C., and sentenced to one year's rigorous imprisonment. The facts are as follows:

30. The accused Colin Mackenzie Mackay gave evidence in a certain case before Mr. Roxburgh, Chief. Presy. Magistrate. The Chief Presidency Magistrate being of opinion that he had given false evidence took proceedings under Section 476. He drew up a complaint and made the complaint to himself, took cognizance of it and then transferred it for enquiry to Mr. A.Z. Khan, a Presidency Magistrate who enquired into the matter and committed the accused to the High Court Sessions. When the case was called on the accused for the first time raised the objection that the commitment was illegal inasmuch as the Chief Presidency Magistrate was incompetent to make a complaint to himself under Section 476, Criminal P.C. and to take cognizance of the case and therefore the third Presidency Magistrate was incompetent to make the enquiry or commit the accused for trial. Mr. Justice Ghose overruled the objection, proceeded with the trial and the accused was found guilty and sentenced; as above-stated. On an application to the Advocate-General a fiat under Clause 26 of the Letters Patent was obtained. The first point which requires consideration is whether the case falls within Clause 26 of the Letters Patent, in other words has there been an error in the decision of a point or points of law decided by Mr. Justice Ghose. If there has not, the certificate is misconceived and the High Court has no power to interfere [Emperor v. Upendra Nath Das 19 C.W.N. 653]. What is the error of law that is ascribed to Mr. Justice Ghose? The error presumably is that the learned Judge held that the commitment was a legal commitment and proceeded with the trial.

31. Section 215 of the Code provides that a commitment once made by a competent Magistrate or by the Court of Sessions can be quashed by the High Court only and only on a point of law.

32. It thus requires to be decided whether High Court in Section 215 includes a single Judge of the High Court sitting in original criminal jurisdiction. Speaking for myself I have considerable doubt whether it does. If then Mr. Justice Ghose had no power to quash the commitment being admittedly made by a Magistrate who had jurisdiction to commit to the High Court the correct procedure was to move the Criminal Bench on the Appellate Side in revision. This point, however, was not fully argued before us and I reserve my opinion for some future occasion if it arises.

33. To deal with the application on its merits. Mr. Basu argues that the commitment was bad, (1) because there was no complaint, (2) that a Magistrate cannot take cognizance of his own complaint, (3) that the complaint could have been made to the Additional Chief Presidency Magistrate who had all the powers of a Chief Presidency Magistrate, (1) that as Mr. Roxburgh could not entertain his own complaint and had no jurisdiction to transfer it to Mr. Khan, so Mr. Khan had no power to commit.

34. With regard to the first and second contentions the argument would seem to be that it takes two persons to make a complaint: one to complain and one to hear the complaint. That there was a complaint I have not the slightest doubt.

35. The complaint itself appears on page 13 of the paper book. Complaint is defined in Section 4(2), Criminal P.C., as the allegations made orally or in writing to a Magistrate with a view to his taking action that some persons have committed an offence. The document on page. 13 certainly falls within the definition. It certainly is an allegation made to a Magistrate with the view to action being taken and it was made to a Magistrate.

36. It is argued that a Magistrate cannot take cognizance of his own complaint because a Magistrate when he takes cognizance must consider the case judicially, before transferring it to another Magistrate, and he cannot be held to judicially consider his own complaint. The expression 'to take cognizance' is nowhere defined in the Code.

37. Section 192 provides that the Chief Presy. Magistrate who has taken cognizance may transfer any case of which he has taken cognizance to any Magistrate subordinate to him. Section 203 provides that a Magistrate to whom the case is transferred may dismiss the complaint if he thicks there are no sufficient grounds, for proceeding, otherwise he will issue his summons. Thus it is quite clear that the Magistrate to whom the case is transferred must consider the case judicially before issuing process. If that is correct it would seem unnecessary that the Magistrate who took cognizance must judicially consider the case before transferring it to some other Magistrate for trial. If that were so, it would mean that the same question would have to be considered by two persons: viz. whether process should issue or not. I am therefore of opinion that there is nothing in the Code that prevents a Magistrate from taking cognizance of his own complaint. No doubt he could not try the case himself but in view of Section 487(2) there would seem nothing to prevent him committing the case for trial. This latter point, however, does not arise in the present case and it is unnecessary to consider it.

38. Even if it be conceded that he could not have taken cognizance himself then the position is that no cognizance of the case was taken until the case came into the file of Mr. Khan. Mr. Khan is not empowered to take congnizance but his so doing would be an irregularity and not an illegality (Section 529), and as such curable under Section 537.

39. It is not been seriously argued that owing to the procedure followed the accused was in any way prejudiced. It was suggested that if the case had been enquired into by Mr. Keays, he, being an Additional Chief Presidency Magistrate, would have taken an independent view, while Mr. Khan being a Subordinate Magistrate might feel bound to carry out the orders of the Chief Presidency Magistrate. The suggestion hardly calls for serious consideration.

40. It has been contended that there was another Magistrate, Mr. Keays, the Additional Presidency Magistrate, who was empowered to take cognizance under Section 476. I fail to see how this is of any importance. The presence or absence of another Magistrate who could have taken cognizance makes no difference to the legality or illegality of what Mr. Roxburgh did. I am of opinion that we should not interfere.

B.B. Ghose, J.

41. The question that seems to arise in this case is whether on the certificate of the Advocate-General the questions referred to in it can be considered by this Court. Under Clause 26 of the Letters Patent the Advocate-General may certify that a point of law decided by the Court of original criminal jurisdiction should be further considered. The only point referred to in the certificate as decided by me is that I overruled what has been somewhat inaccurately described as a 'plea in demurrer' taken on behalf of the accused, and allowed the trial to proceed. The certificate of the Advocate-General does not require that the point decided by me that the trial should proceed should be further considered. It is unnecessary to state what order I should have passed if the facts had been presented to me as they appear to be now. But the question arises as to whether a Judge exercising original criminal jurisdiction has authority, except under special circumstances, under the Code of Criminal Procedure, to quash a commitment made by a Magistrate authorized to do so under the Code. Under Section 532(2) the Judge may quash a commitment, but in this case there was no objection taken during the enquiry nor was any injury to the accused alleged. The Judge may also make an entry under Section 473 that the charge is clearly unsustainable which would have the effect of staying proceedings. If neither of those proceedings can be taken, and I think that the Judge cannot refuse to go on with the trial. A commitment may be quashed by the High Court under Section 215, but this refers to its appellate or revisional jurisdiction, and I do not think that a Judge exercising original criminal jurisdiction can quash a commitment on the ground that it was illegal. No step to have the commitment quashed was taken by the accused and so the trial had to proceed. If this is correct, I do not think we can consider the points certified by the Advocate-General, as we are not sitting as a Court of criminal appeal. I do not, however, propose to rest my decision on this ground alone as the question was not argued before us although I invited discussion on it.

42. The contention on behalf of the petitioner is that there was no complaint and the Chief Presidency Magistrate acted illegally in taking cognizance of the case, with the resulting consequence that the proceedings as also the subsequent trial are void. I think that the document signed by the Chief Presidency Magistrate was a complaint of the offence as contemplated in Section 476 of the Criminal P.C., and nothing could have been said against it if it had been forwarded to another Magistrate having authority under the section. As it now appears that the Additional Chief Presidency Magistrate was also a Magistrate of the First Class for the purposes of Section 476(1), the Chief Presidency Magistrate should have forwarded the complaint to him. But the question is what is the consequence of his omission to do so.? It seems to me that taking cognizance of a case under the Code does not involve any judicial act on the part of the Magistrate. If a Magistrate is empowered under Section 190 and the offence complained of is brought to his notice in the prescribed manner the Magistrate is bound to take cognizance of the case. His judicial act commences from the proceedings to be taken under Section 200. But in a case like the present the complainant is not required to be examined. The Magistrate to whom the case, was transferred could take every judicial action that a Magistrate taking cognizance of the case could do i.e., postpone the issue of process or dismiss the complaint if he thought fit. The Chief Presidency Magistrate did not take any judicial action in the matter before transferring it to the Third Presidency Magistrate. Moreover, it does not seem to me that taking cognizance of the case by the Chief Presidency Magistrate was illegal. Under Section 487, Sub-section (2) he might himself commit the case to the High Court, and this implies that he must take cognizance of the case and take all further steps leading to the commitment. The irregularity in his procedure was that instead of himself committing the case, he transferred it to another Magistrate. The case was not tried by the Magistrate. The principle laid down in Section 487 appears to be that the Magistrate should not try any person for an offence committed before himself but he may take all necessary steps for the commitment of the case to the Court of Sessions or the High Court if he is empowered to commit. I do not therefore, think that the commitment or the subsequent trial was illegal and the irregularity referred to would be cured under Section 532(1). I agree with the decision of Walmsley J., and Cuming, J.

Chakravarti, J.

43. I agree with the conclusion arrived at by my learned brother Mr. Justice Rankin and, as I had the advantage of reading his judgment, I do not think it leaves out anything which I can usefully add.


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