Hafiz Mohamad Sani and Others vs Emperor

Adami, J.—The three petitioners have bean found guilty of offences u/s 117, I.P.C., and Section 3 of Ordinance 6 of 1930, and have been sentenced to one year''s imprisonment under the former section and to six months'' concurrent imprisonment under the latter. In the case of Hafiz Mohammad Sani and Sheikh Adalat Hussain the imprisonment was to be rigorous, and in the case of Pir Mohammad to be simple. On appeal the convictions and sentences were upheld by the Sessions Judge of Muzaffarpur.

It has been found that on 8th August last at about 8 p.m. the three petitioners were sitting on the verandah of the house of Hafiz Muhammad Sani in Bettiah and were instigating a gathering of from 25 to 30 persons to stop payment of chaukidari tax and to resist and assault the police and the Magistrate if they went to collect it.

It happened that a head constable of the Bettiah outpost No. 2, which had been opened for the purpose of dealing with political cases, together with three Constables, all in plain clothes, were passing that way and stopped and listened for sometime to what the petitioners were saying. The head constable went to the police station, but found the Sub-Inspector absent, so he drew up a report of what had occurred, and, meeting the Sub-Inspector, handed the report to him. The Sub-Inspector, without recording the first information in the form prescribed or making an entry in the station diary, though he made one in his personal diary, started inquiry at once, and arrested the petitioner Sheikh Adalat Hussain on the 10th and Hafiz Muhammad Sani on the 19th. He had to apply for a warrant and for processes under Sections 87 and 88, Criminal P.C., before he could arrest Pir Muhammad on the 26th. On the 27th August the Sub-Inspector submitted his report (Ex. 4) to the Magistrate asking for the prosecution of the petitioners. On that report the petitioners were pub on their trial and convicted and sentenced as I have stated above.

Mr. Nirsu Narayan Sinha contends before us, on behalf of the petitioners, that their trial is vitiated by the failure of the Sub-Inspector to observe the mandatory provisions of Chap. 14, Criminal P.C., Section 44, Police Act, and rules contained in the Police Manual prescribing the procedure to be followed by the officer in charge of a police station when information relating to a cognizable offence has been given to him. He points out that Section 154, Criminal P.C., requires that every information of such offence shall be reduced to writing by the officer and be signed by the informant, and that the substance of the information shall be entered in a book to be kept By the officer in the form prescribed. A form has been prescribed for the first information report, and u/s 44, Police Act (5 of 1861), the general or station diary is the book in which all complaints, and charges preferred, the names of all persons arrested, the names of complainants, the offences charged against them, and the names of witnesses examined, are to be recorded. He complains that in the present case the Sub-Inspector did not reproduce the information given in writing by the head constable in the form prescribed for a first information, and that no entry was made in respect of the information in the station diary, and he argues that the object of the provisions of law and the rules mentioned above is to ensure an immediate record of the story as first given by the informant and to safeguard the accused against subsequent variations or additions. It is suggested that the written report (Ex. 1), alleged to have been handed to the Sub-Inspector on the evening of 8th August, might have been drawn up at a later stage, and the failure to make mention of it in the station diary for 8th August deprived the Court of means to check the date on which it was made.

Furthermore, it is contended, u/s 157 of the Code, the Sub-Inspector was bound to report at once the suspected commission of a cognizable offence to the Magistrate, and under the rules to send a copy of the first information to the Magistrate and to the Superintendent of Police. The Sub-Inspector failed to make the required report or to send copy of the information. Lastly, prejudice to the accused petitioners is asserted inasmuch as the Sub-Inspector did not enter, in the special diary prescribed by Section 172 of the Code, the various steps he took in the course of his inquiry, and the petitioners were unable to know what witnesses were examined, and why men of the locality were not produced in Court to give evidence. The provisions of Rule 165, Police Manual, were not observed since the diary was not regularly maintained, and consequently the higher authorities were unable to be acquainted with the course of the investigation.

Now, with regard to Section 154, it was unnecessary for the Sub-Inspector to reduce the information to writing, for it was already in writing. The fact that the prescribed form was not used can have no importance once it is believed that the report was, as alleged, written on the 8th August, and the Courts below have believed this. The Sub-Inspector failed to follow the express provision of the section in omitting to make an entry of the information in the station diary, but he did make an entry in his personal diary which is also prescribed by the statutory rules. Here too the failure would have had an important bearing if the real data of the report (Ex. 1) had been in question, but it was not put in question in this case. The Sub-Inspector again failed to comply with the mandatory provision of Section 157 when he omitted to send a report to the Magistrate. The object of this provision is to enable the Magistrate to have immediate notice of every serious crime so that he may be able to act, if necessary, u/s 159. As the Magistrate is responsible for the peace of his district it is necessary that he should be kept informed. The Sub-Inspector may have committed a breach of duty, but there can be no prejudice to the accused. The report u/s 157 is not a public document. Likewise the failure to send a copy of the first information to the Magistrate could not prejudice the accused in their trial. The practice of sending daily to the authorities a copy of the special or case diary has as its object the keeping those authorities acquainted with the course of the investigation and enabling them to supervise and suggest steps to be taken.

With regard to the special or case diary kept u/s 172, it has to be remembered that statements of witnesses taken down in writing, such as are referred to in Section 162, should not be entered in the special diary which should merely record the steps taken by the police officer in the investigation and the circumstances he comes to know by investigation. The diary may be used by the Court to help it in the inquiry or trial and it may be referred to by the police officer who kept the diary to refresh his memory. The accused can only see the diary if it is used by the police officer to refresh his memory, or if the Court uses it to contradict the police officer. As in the present case there was no special diary, there could be no case of refreshing memory or contradicting the police officer by the diary. The absence of the diary therefore could not prejudice the accused, nor, even if it existed, would there be any record in it of the statements of the witnesses such as are referred to in Section 162.

There can be no doubt that the Sub-Inspector in his procedure disobeyed certain provisions of the law, and for that he could be punished, if the authorities deemed it fit, but I cannot find that his failure was to the prejudice of the petitioners. Nor can I see how failure properly to conduct an investigation into an offence can vitiate a trial which was started on the final report after the investigation. There is no allegation of anything illegal or irregular in the conduct of the trial. If there was anything wrong in the conduct of the investigation, any suspicion as to the truth of the prosecution case engendered by the irregularity would be considered by the Court in determining the truth of the charge, and in the present case the irregularities or illegalities have been brought to the notice of the Courts below, but have not led them to suspect the honesty of the prosecution.

The final report (Ex. 4) was made to the Magistrate and on that report he was fully entitled to take cognizance u/s 190 and put the petitioners on trial. I cannot find that the convictions were wrong.

It has been contended that the sentences passed are too severe. Having regard to the fact that that day the Sub-divisional Magistrate who had gone with armed police to collect chaukidari tax had been chased away by villagers, and the petitioners were inciting their audience to collect the men of several villages to resist and assault the police and Magistrate if they tried to collect the tax, having regard too, to the serious and dangerous position in the Champaran district, I do not consider the sentences to be excessive. I would dismiss the application.

Courtney-Terrell, C.J.

I agree.