Hema Singh and Another vs Emperor

Courtney-Terrell, C.J.—These are petitions for quashing an order of the Deputy Magistrate committing the prisoners to the Sessions for trial on a charge u/s 388, I.P.C. The facts are as follows:

On 14th November 1927 one Muni Mahto and others petitioned the Superintendent of Police alleging that Jagannath Rai, Sub-Inspector of Police, had extorted from them with threats a sum of money. The Deputy Superintendent of Police enquired into the matter and, found the complaint false.

On 20th April 1928, the Superintendent of Police filed a petition of complaint before the Sub-Divisional Officer and asked, for the prosecution of Muui Mahto and others with him for making a false charge. The Sub-Divisional Officer issued process.

In the meantime, on 26th January 1928, Muni Mahto filed a complaint before the Sub-Divisional Officer reiterating the allegations made in the petition before the Superintendent of Police and this time charged not only the Sub-Inspector Jagannath Rai but also the other two petitioners with having committed offences under Sections 323, 347 and 384, I.P.C. The Sub-Divisional Officer held an enquiry u/s 202, Criminal P.C, and on 5th March 1928 he dismissed the complaint u/s 203, Criminal P.C.

Muni Mahto and others then moved the Deputy Commissioner u/s 435, Criminal P.C, praying him to make a reference to the High Court and alleging that the proceedings against them could not be taken except on complaint of the Court. The Deputy Commissioner made the reference prayed for and on 2nd August 1928 the proceedings mentioned were quashed by the High Court.

The Superintendent of Police then petitioned the Deputy Commissioner alleging that the complaint of Muni Mahto was serious and that the order of the Sub-Divisional Officer dismissing that complaint was vague and prayed for further enquiry. It will be noted that the petition by the Superintendent of Police related, not to the complaint which he had himself made to the Sub-Divisional Officer on 22nd April, but to the complaint by Muni Mahto against Jagannath Rai and others which had been dismissed by the Sub-Divisional Officer-on 5th March 1928.

The Deputy Commissioner in his order recited the former proceedings and said:

There are consequently at present no proceedings pending, and in substanoa what this petition amounts to is an application u/s 195, Criminal P.C. for a complaint to be lodged by ma for the prosecution of the opposite party. I have pruned the order of the learned Sub-Divisional Officer dismissing the complaint and I am certainly of the opinion that in the case of a serious charge like this against the Sub-Inspector in charge of a thana he should not have allowed the matter to rest with a simple dismissal. It is perfectly clear from his order that he did not balieva the complaint but he does not hold definitely that it is false and in fact he subsequently directed the case to be entered true. I do not therefore think that the facts at present in the record would justify me in holding that the case had bean proved to be deliberately and maliciously false and in filing a complaint in accordance with the provisions of Section 195, Criminal P.C., where the Sub-Divisional Officer has not himself thought fit to do so. The grievance of the Superintendent of Police is that he was not given an opportunity to produce evidence which would show definitely that the complaint was false. It appears as I have said above that action u/s 195, Criminal P.C. will not be appropriate in this case but I can find no bar to my proceeding u/s 436 and directing a further enquiry into the complaint lodged by Muni Mahto. I accordingly set aside the order of dismissal in this case and direct that the further enquiry be held into the complaint in order to give an opportunity to the accused to vindicate themselves and to prove that the allegations made against them were not only open to doubt but were positively false.

Now it is quite clear that the order made by the Deputy Commissioner is for further enquiry into the complaint by Mani Mahto against the police officers and the Deputy Commissioner definitely says that " on the facts at present on the record" he would not be justified in filing a complaint in accordance with the provisions of Section 195, Criminal P.C., (i.e., a complaint against Muni Mahto) where the Sub-Divisional Officer had not himself thought fit to do so. This order of the Deputy Commissioner was acted upon by the Sub-Divisional Officer who at once issued process against the police officer and two other persons under Sections 323 and 347, I.P.C., that is to say, he preferred charges of voluntarily causing hurt and wrongful confinement to extort property.

On 20th January 1929 the Sub-Divisional Officer transferred the case for trial to the Deputy Magistrate. The Deputy Magistrate proceeded with the trial and recorded the evidence of some 16 prosecution witnesses who were not cross-examined on behalf of the police officers and on 15th February alter hearing arguments he committed the police officers to the Sessions u/s 388, I. P.C. (extortion by threat of accusation of an offence punishable with death or trans-portion) and u/s 114 (abetment of the offence). It is this order which the Court is now asked to quash.

It is argued on behalf of the petitioners that the order of the Deputy Commissioner required the Sub-Divisional Officer to make an enquiry not of the kind involved in issuing process against the petitioners and taking evidence on the charge against them, but an enquiry such as is contemplated by Section 202, Criminal P.C. The application to the Deputy Commissioner having been made u/s 436, Criminal P.C., it is suggested that the words further enquiry into any complaint which has been dismissed u/s 203 " have this necessary meaning. The argument is put as follows: A Magistrate before whom the complaint is made may either at once issue process or if he entertains a doubt as to the substantial nature of the complaint he may u/s 202, Criminal P.C., make an enquiry either himself or through another Magistrate directed by him. The order of the Deputy Commissioner referring the complaint of Muni Mahto to the Magistrate for further enquiry brought about the state of affairs which would have existed if the Magistrate on receiving the original complaint had not been satisfied of its substantial nature and that, therefore, it was incumbent upon the Sub-Divisional Officer on receiving the order of the Deputy Commissioner to treat the matter in that light as a matter requiring investigation before the issue of process and that he should have refrained from issuing process until after a preliminary enquiry. It is further contended that this is the clear intention of the Deputy Commissioner as shown by the words of his order:

I direct that a further enquiry be held into the complaint in order to give an opportunity to the accused" (the police officers) "to vindicate themselves and to prove that the allegations made against them were not only open to doubt but were positively false.

It is further argued that the order to issue process made by the Sub-Divisional Officer was without jurisdiction and that the point could, therefore, be taken at any stage of the proceedings which were thereafter wholly vitiated. I now proceed to consider these arguments.

The complaint made by Muni Mahto alleged that the police had committed the offence of voluntarily causing hurt (Section 323) which was triable by any Magistrate, the offence of wrongful confinement for the purpose of extortion (Section 347) triable at Sessions or by a Magistrate of the 1st or 2nd Class and the offence of extortion (Section 384) similarly triable. It was into the complaint alleging these offences that further enquiry was directed to be made and it is obvious if the enquiring Magistrate should come to the prima facie conclusion that any offence had been committed that the offender should be tried by such tribunal as had jurisdiction to deal with such offence. Now the Magistrate who receives a complaint may at his option either issue process at once, or he may make a preliminary enquiry u/s 202 and thereafter issue process. When the accused is brought before him he proceeds to take evidence in his presence and the accused has the right to cross-examine the witnesses. When the Magistrate is satisfied as to the nature of the offence revealed by the evidence he frames the charge. If such offence so charged is triable by the Magistrate himself he completes the proceedings and convicts or acquits the accused. If it is triable only at the Sessions he commits the accused for trial and the proceedings before the Magistrate up to that point constitute an enquiry and are not a trial at all. In other words a trial is a judicial proceeding which ends in conviction or acquittal. All other proceedings are mere enquiries. There are enquiries of a restricted kind such as those u/s 202 which end in a decision whether or not to issue process or if process has been issued the enquiry may proceed and may end with the decision to dismiss the complaint without charging the accused. The distinction to be made is that between a trial which must end either in conviction and sentence, or acquittal and enquiries which may have various endings according to circumstances. Section 4(k) defines an enquiry as :

including every enquiry other than a trial oonduoted under this Code by a Magistrate or Court.

Therefore, If a Magistrate on receipt of a complaint issues process against the accused and ultimately concludes that an offence triable at Sessions has been committed and commits the accused, the trial does not begin until the accused appears at the Sessions and the proceedings before the Magistrate have constituted an enquiry only. That this is so is seen by reference to Section 207 which provides that:

The following procedure shall be adopted in enquiries before Magistrates where the accused is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court.

Now u/s 436 the High Court, Sessions Judge or District Magistrate may, where a complaint has been dismissed, order the Magistrate to make further enquiry. u/s 437 in cases where the Sessions Judge or the District Magistrate considers that the case is triable exclusively at Sessions he may cause the accused person to be arrested and instead of directing further enquiry he may commit him for trial.

In Hari Das Sanyal v. Saritulla [1888] 15 Cal. 608, Wilson, J., in delivering the judgment of the majority of the Full Bench said at p. 620:

The word ("enquiry") is often, however, used in a more specific sense to denote the enquiry before a Magistrate preliminary to trial which regularly results in a charge or a discharge. I am not prepared to adopt any but the narrower sense in the present section (corresponding to the present Section 436.)

A little later on the learned Judge says:

But in Section 436, committal and further enquiry are spoken of as distinct alternatives, Taking, however, this narrower sense I think the enquiry includes not merely the taking of evidence but the consideration of that evidence and the conclusion to charge or discharge the accused.

In Narayanswamy Naidu v. Emperor [1909] 32 Mad. 220, the accused were prosecuted for an offence u/s 223, I.P.C, and after taking the evidence were discharged by the second class Magistrate. The District Magistrate acting under the old Section 437 (corresponding to the modern Section 436) ordered further enquiry into the charge against the accused and directed that the retrial should take place before another Sub-Magistrate. An application was made to the High Court to set aside this order and the main question referred to the Full Bench was as to whether the District Magistrate had power under the section to order the Magistrate to frame the charge or try the accused. It was decided that the District Magistrate could only order a further enquiry and Wallis, J., in delivering the judgment said at p. 234:

Therefore the order for further enquiry directed to a subordinate Court means that the case should be taken up again and that the question of dismissing the complaint, or charging the accused, as the case may be, should be again considered and an appropriate order made as a result of such fresh consideration.

and decided that part of the order which directed the Sub-Magistrate of Kilapalur to conduct the trial of the accused was not valid. The question therefore for consideration was not that which arises in the present case. In my opinion the nature of the case above referred to was not correctly appreciated by the learned Judge who decided the case of Radha Prasad Bhagat and Others Vs. Emperor, which, with the greatest respect to him, I consider to have been wrongly decided. He held that a Magistrate directed to conduct a further enquiry must not issue process until he has conducted a preliminary enquiry u/s 202 and he considered (I think erroneously) that the decision in the Madras case leads to the view of Section 436 which he himself adopted. Ha further considered that two decisions reported respectively in Sheo Narain Singh v. Bam Partap Rai [1919] 4 Pat. L.J. 456 and Ram Basari v. Rampartap [1920] 5 Pat. L.J. 47, proceeded upon this view of the law. In Sheo Narain Singh v.Ram Partap Rai [1919] 4 Pat. L.J. 456 the Sub-Divisional Magistrate had dismissed the complaint. The Sessions Judge ordered further enquiry. The High Court was moved to set aside the order directing further enquiry on the ground that the order was passed without notice to the accused. This they refused to do. This point is of no interest in the present case. The Court was informed that the Deputy Magistrate had issued summonses instead of holding the enquiry u/s 202 but there was no application before the Court to review the order of the Magistrate who had issued summonses. The learned Judges having decided the matter of the objection to the order for further enquiry nevertheless remarked:

We regard the proceedings of the Deputy Magistrate as a defiance of the orders of his official superiors. He should not have issued these summonses until he had made a judicial enquiry-and we are of opinion that in the circumstances of the case the issue of summonses against all the accused was outside his power. We, therefore, cancel the order instituting proceedings against the accused and direct that no summons or warrant be issued until a judicial enquiry has been made and a prima facia case disclosed against them.

This decision was outside the scope of the matter of the order directing further enquiry and in any case it was, in my opinion, erroneous. The Court does not seem to have been assisted by argument on the correctness of the view on which its order was based. The Deputy Magistrate afterwards conducted an enquiry u/s 202 as directed and considering that a prima facie case had been disclosed against certain of the accused which was triable by him he issued summonses against these and proceeded to try them with the result that they were acquitted. The Sessions Judge was then moved to set aside the acquittal on the ground that the Deputy Magistrate had no jurisdiction to try the case. The Sessions Judge referred the matter to the High Court and Jwala Prasad, J. decided Ram Basri v. Ram Pratap [1920] 5 Pat. L.J. 47, that having conducted the preliminary enquiry which had been directed and having come to the conclusion that a prima facie case of an offence triable by the Deputy Magistrate had been made out the Deputy Magistrate had jurisdiction to try it and to acquit the accused. This decision was, in my opinion, correct but it has no bearing upon the present case.

On this point therefore I am of opinion that the Magistrate had discretion to issue process against the accused and after hearing the evidence to commit the accused to the Sessions, and he had discretion to dispense with any preliminary enquiry u/s 202. The procedure involved in hearing the evidence and committing the accused for trial was "further enquiry" within Section 436 and within the scope of the order.

In case I am wrong in this view there remains the question whether the conduct of the Magistrate in forthwith summoning the accused instead of conducting a preliminary enquiry was an illegality which vitiated the proceedings or a mere irregularity upon which the petitioners would be unable to succeed unless they were prejudiced thereby. Now u/s 532, Sub-section (1) if a Magistrate purporting to exercise powers which he does not in fact possess commits an accused person for trial the Court may nevertheless accept the commitment if the accused has not been injured thereby and if the objection has been taken in time. This indicates very clearly that an irregular commitment is not an illegality. It has been said that the decision reported in Sheo Narain Singh v. Ram Pratap Singh [1919] 4 Pat. L.J. 456, which I have mentioned above indicates that the irregularity of the commitment amounts to illegality. If the proper view of that decision is as contended for by the petitioners I am of opinion that it was wrongly decided but it does not amount to such a decision.

Finally Section 532, Sub-section (1), allows a Court to which commitment is made to accept the commitment if it considers that the accused has not been injured thereby:

Unless during the enquiry and before the order of commitment objection was male on behalf either of the accused or of the prosecution to the jurisdiction of such Magistrate or other authority.

Now in this case the witnesses were called and their evidence was taken in due form by the Magistrate. It is true that they were not cross-examined on behalf of the accused because it was believed that the Magistrate would not either charge them with an offence triable by himself or commit them for trial on a charge triable only at Sessions. Nevertheless if the accused had considered that the Magistrate had committed an error of jurisdiction in issuing process against them steps should have been taken to set aside his order for issuing process and this application is made too late in the day for the Court properly to employ its revisional powers.

For these reasons I am of opinion that these petitions fail and must be dismissed.

Dhavle, J.

I agree, and desire to offer a few observations on the import of the order for further inquiry and the question of jurisdiction.

The District Magistrate apparently ordered further inquiry not because he thought that the order of dismissal was not warranted by the evidence, but because he considered it necessary that the accused should be given:

an opportunity to vindicate themselves and to prove that the allegations made against them were not only open to doubt but were positively false.

The propriety of this order for further inquiry is, however, not challenged on behalf of the petitioners. On the contrary, it has been made the basis of a contention that the Sub-Divisional Magistrate was bound by that order to make what has been called a "judicial inquiry" i.e., an inquiry in which the accused were to be allowed to appear u/s 202, and was left without jurisdiction to proceed against the petitioners in the way he did, viz., by summoning them straightaway.

Apart from Section 436 the only inquiry interposed by the Code of Criminal Procedure between the examination of a complainant and the issue of process or dismissal of the complaint (as the case may be), is an inquiry u/s 202. It is, however, not in every case that such an inquiry must be held; and even in those cases in which the Magistrate sees fit to proceed u/s 202 there are three courses open to him he may inquire into the case himself, or direct an inquiry by a Subordinate Magistrate, or direct an investigation by a police officer or by such other person as he thinks fit. Among the amendments made in the Section (1923) there is Sub-section 2-A which empowers any Magistrate inquiring into a case under the section to take evidence of witnesses on oath if he thinks fit, a provision which shows that the inquiry need not always be of a formal character. The judicial inquiry contended for by Sir Ali Imam and his arguments were adopted by the learned advocate appearing for the petitioners in Criminal Revision No. 128 is an inquiry in which, it was urged, the petitioners were to be allowed to appear. But as was said in Sheo Narain Singh v. Bam Pertap Rai [1919] 4 Pat. L.J. 456, it is "the settled practice of this Court, frequently and forcibly laid down," that an accused should not be allowed to appear in proceedings u/s 202. In directing a further inquiry u/s 202, the District Magistrate merely followed the terms of Section 436. In adding "in order to give an opportunity to the accused to vindicate themselves..." it may be that he was merely stating his own reasons for directing a further inquiry rather than instructing the Sub-Divisional Magistrate to make the enquiry in a particular manner to be gathered from the stated object of the inquiry. In any case he could hardly direct the Sub-Divisional Magistrate to make an inquiry u/s 202 in the presence of the accused.

Coming now to Section 436, I would observe in the first place that the District Magistrate is empowered by that section only to make a further inquiry himself or to direct a Subordinate Magistrate to make it. This relief of a "further inquiry" is provided for such a variety of circumstances that it becomes difficult, if not impossible, in one class of case after another, to take it to mean an inquiry u/s 202. In those cases where a complaint has been dismissed without resort to Section 202 and a superior Court gives relief u/s 436 against the dismissal, there is little difficulty in taking "further inquiry" to mean an enquiry u/s 202 except that it is not easy to see why the legislature should be taken to have intended that the Magistrate must inquire himself, apparently without liberty to have an inquiry made by a Subordinate Magistrate or to have an investigation made by a police officer or some other person as permitted by Section 202. In those cases, however, in which a Magistrate dismisses a complaint after a full inquiry u/s 202, it is difficult to see why in giving relief u/s 436 the superior Court should be taken to require the Magistrate to make the same inquiry over again (as has been contended for by Sir Ali Imam), apparently without liberty to adopt the alternatives permitted by Section 202, In yet another class of cases dealt with in Section 436, viz., cases of discharge of an accused person, a further inquiry u/s 202 is plainly out of the question; a majority of five learned Judges of the Calcutta High Court held in Hari Dass Sanyal v. Saritulla [1883] 15 Cal. 608, that the power to direct "further inquiry" in such cases enables the superior Court, acting u/s 437 (now Section 436).

to direct either an additional investigation of the facts, or a reconsideration of the evidence, by the Magistrate whose order is set aside, or a new inquiry before another Magistrate.

It thus seems impossible to restrict the "further inquiry", of Section 436 to an inquiry u/s 202. It is also settled law that the proceedings before a Magistrate in warrant cases under Chap. 21 of the Code are and remain inquiries until they become trials on charges being framed and put to the accused. The order of the Sub-Divisional Magistrate to summon the accused in the present case and the proceedings before Mr. C.N. Allatn, the Deputy Magistrate to whom the case was transferred for trial but who actually committed it to the Sessions, are thus not outside the "further inquiry" directed by the District Magistrate u/s 436. Belying on the observations of Jwala Prasad, J., in Radha Prasad Bhagat and Others Vs. Emperor, , Sir Ali Imam has argued that an inquiry u/s 202 was obligatory in the present case because it was necessary that the suspicion which arose in the mind of the Magistrate against the truth of the complaint and originally led to its dismissal be dispelled. But a further inquiry u/s 202 is not the only way to remove such suspicion, and a lower Court may often give up its doubts when a superior Court has set aside an order of dismissal based on such doubts. In Sant Lal Singh v. Emperor Criminal Revn. No. 425 of 1928, decided by Macpherson, J., in this Court on 16th August 1928 it was urged on the authority of Ramchandra v. Satyabhama [1928] 9 P.L.T. 459 that a further inquiry u/s 436 means an inquiry of the same nature as one held u/s 202. The contention was rejected by the learned Judge who pointed out how such a view of the law could not possibly be of general application, and how the definition of inquiry in Section 4(k) is subject to the very important proviso that a different intention does not appear from the subject or context.

On behalf of the Crown Sir Sultan Ahmad has cited an unreported decision of Wort, J., (Adami, J., concurring) in Janakdhari Singh Vs. Emperor, in which it was held that the omission of a Magistrate to make a further inquiry as directed u/s 436 does not deprive him of the jurisdiction that he has, quite apart from any order of a revisional Court directing a further inquiry, to summon an accused person, the ruling in Jotindra Nath v. Hem Chandra [1909] 36 Cal. 415 being referred to in support of the existence of the jurisdiction. This would be sufficient to dispose of the petitioners'' contention that the Sub-Divisional Magistrate had no jurisdiction to summon them as he did. In my opinion, if I may say so with respect, the order for a further inquiry did not make it obligatory for the Sub-Divisional Magistrate to proceed again u/s 202, and the Sub-Divisional Magistrate not only had jurisdiction (even apart from the order for further inquiry) to proceed u/s 204, but was actually acting in compliance with the order when he summoned the petitioners.