Kamla Prasad Singh vs The State

Ramratna Singh, J.—The facts giving rise to this application are these. On the 10th June. 1954 the Sub-divisional Officer of Patna made a complaint in writing to the District Magistrate for prosecution of the Gyanchand Dusadh u/s 205/419/420 of the Penal Code for committing an offence by fraudulently subscribing on the 6th January, 1964 a bail bond in the name of his dead father as a bailor for the release of Birja Rai Dusadh and Girja Rai Dusadh, who constituted the first party in a proceeding u/s 107 of the Code of Criminal Procedure before him. The District Magistrate took cognizance of the offence and transferred the case to Mr. Ahmad, Judicial Magistrate. Patna for disposal. One Jagrup Gope, who was the second party in that proceeding filed on the 2nd July, 1964 a petition before Mr. Ahmad that the said Birja and Girja be also summoned as accused, and Mr. Ahmad summoned them. Some witnesses were examined before him. One of them, namely, Sri Lakshmi Narain, Mokhtar, who had identified the bailor, Gobardhan Das on the bail bond, said in his evidence that one Kamla Singh introduced Gyanchand as Gobardhan to him and Gyanchand also told him that he was Gobardhan. He further added that Kamla, who was a Mokhtar''s clerk, had scribed the bail bond. On the 19th February, 1965, Mr. Ahmad passed the following order.

Accused present and represented. I have perused the evidence of P, W. Lakshmi Narain in which he says that Kamla Pd. introduced the bailor Gobardhan Das. This reveals prima facie that Kamla abetted the offence of forgery and impersonation.

Summon Kamla to face trial.

Evidences will have to be adduced afresh summon all the P. Ws. of the complaint petition P. K. Sushama through S. D. O. Sadar

Fix 11-3-65.

Kamla Prasad Singh, the petitioner in this Court, appeared in the court of Mr. Ahmad on the 11th March, 1965, and he took further evidence in the case and proceeded with the trial, when the present application was filed in this Court on the 17th May, 1965. It was admitted on the 19th May and further proceedings in the court below were stayed. This application was taken up for hearing on the 12th September, 1966 before S. P. Singh, J., and an objection to the maintainability of this application was made before him on the ground that the petitioner had come up to this Court, without having moved the Sessions Judge first for reference of the matter to this Court, as is the practice prevailing for a long time.

On behalf of the petitioner it was urged before his Lordship that, inasmuch as. by Art 131 of the new Limitation Act a period of ninety days from the date of the order sought to be revised has been prescribed for an application in revision, the petitioner could not have taken the risk of the application in revision to become time-barred by moving the Sessions Judge, in the first instance, to make a reference to this Court. As no decision of this Court was cited before the learned judge on this point, his Lordship referred the case to division bench on the 12th September, 1966, and then this case was placed before us for hearing.

This very question came up for decision before us in Criminal Revn. No, 1018 of 1965, Sahdev Mandal and Others Vs. Honga Murmu and Others, and it was held that such an application in revision could be filed directly in this Court, without moving the Sessions Judge, in the first instance, for making a reference to this Court in respect of the order sought to be revised, because of the period of limitation prescribed in Article 131 of the Limitation Act and that the practice of this Court, referred to above, came into existence on account of the fact that no period of limitation had been prescribed for such application in the earlier Limitation Act. On this occasion before us, learned Counsel for the opposite party did not place any argument which had not been considered in the said decision. Hence, it must be held that the present application in revision is competent.

Coming to the merits, learned Counsel for the petitioner submitted that Mr. Ahmad erred in summoning the petitioner in the case before him on the statement of the Mokhtar, inasmuch as it was not noted by him in the bail bond that he had identified the bailor, Gobardhan Das, because he had been introduced to him by the petitioner. He further urged that the statement of the Mokhtar before Mr. Ahmad was a self-exculpatory statement and, therefore, (here was no prima facie case made out against the petitioner. But if the evidence of Sri Lakshmi Narain P.W. 3 before Mr. Ahmad, is read as a whole, it cannot be said at this stage that it is incredible.

The mere fact that in the endorsement of identification the Mokhtar did not name the petitioner as the man who introduced the bailor to him cannot justify the inference that the Mokhtar is not a credible witness on the point. It is remarkable that the Mokhtar also staled that Kamla had scribed the bail bond, and if it is ultimately found on comparison of the writing and on consideration of the other evidence that Kamla had in fact scribed the bail bond, it would lend strength to the Mokhtar''s statement about Kamla having introduced the bailor to him. Further, it is not possible at this stage to say that the Mokhlar''s statement was really self-exculpatory and that he falsely introduced the name of Kamla to save himself. In this view of the matter, it cannot be said that no prima facie case had been made out against the petitioner and that Mr. Ahad was not justified in summoning him also as an accused.

The next contention of learned Counsel is purely a question of law in respect of the power of the Magistrate to whom the case had been transferred for disposal u/s 192 of the Criminal Procedure Code, Learned Counsel. Mr. B. P. Singh, conceded that in ordinary cases, where there is no special provision for taking cognizance of a case on (he complaint of a court or a specified authority, the transferee Magistrate can, in exercise of his inherent powers as a Magistrate having seizin of the case, add to or subtract from the offences or add to the names of the offenders or accused mentioned in the order of the Magistrate taking cognizance of the case originally u/s 190 of the Code of Criminal Procedure. This principle of law is, by now well settled, and it is sufficient. In this connection, to refer to the propositions summarised in Para. 20 of the bench decision of this Court in N. Baksi Vs. M. Yunus, which was cited by Mr. B. P. Singh, Ray, J., after having discussed a large number of decisions of the different High Courts as also the decision of the Privy Council, said:

To my mind the propositions are : (1) that the jurisdiction to take cognizance of an offence is conferred primarily by the Code of Criminal Procedure. (2) that the same jurisdiction is derived from or delegated by the Magistrate entitled to take cognizance under the statute by an order of transfer, and the transferee Magistrate, irrespective of his having been empowered under the statute to take cognizance of offences, acquires a jurisdiction to do so, but this jurisdiction can in no circumstance be conceived to be more than or in any way in excess of what the transferring Magistrate had under the statute, whether the transfer is made by the Magistrate taking cognizance or is made under a direction of the High Court does not make any difference, (3) the ambit of the jurisdiction of the transferring Magistrate (to use a convenient expression) is the measure of the extent of the transferee Magistrate''s jurisdiction, that is to say, what could not have been done by the Magistrate taking cognizance of the case of the offence either upon complaint or upon Police report or upon any other information or knowledge cannot be done by the transferee Magistrate unless he is armed with a jurisdiction to take cognizance, primarily, under the statute and unless the offence and the offenders come within his territorial jurisdiction.

Section 191 speaks of the cognizance of a case u/s 190 (1) (c). Section 192 comes after Section 191 and empowers the District Magistrate or the Sub-divisional Magistrate to transfer any case, of which he has taken cognizance, for enquiry or trial, to any Magistrate subordinate to him. and a Magistrate to whom any case is transferred u/s 192 does not take cognizance under any clause of Section 190 at all, but he does so in exercise of a power which vests in every court having seizin of the case and is not confined to a Magistrate empowered to proceed u/s 190, It is unnecessary to discuss this matter further because of the concession of Mr. Singh referred to earlier.

Learned Counsel, however, relied OR Section 192 read with Section 476 of the Code of Criminal Procedure and submitted that it was not permissible either for the Magistrate, who took cognizance originally u/s 190 in the instant case, or for Mr. Ahmad, to whom the case was transferred for disposal, to summon the petitioner. Kamla for trial of an offence u/s 205 of the Penal Code. Section 195 (1) (b) lays down that no court shall take cognizance of any offence punishable u/s 205 of the Penal Code, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of such court or of some other court to which such court is subordinate. It was contended that the Sub-divisional Magistrate of Patna, Sadar, before whom the bail bond had been filed in that proceeding u/s 107, had not made any complaint against the petitioner, and, therefore, neither the District Magistrate of Patna nor Mr. Ahad could take cognizance of the offence against the petitioner.

But cognizance is taken of an offence and not of an offender. All the offenders may be Unknown or some may be known and others unknown, and only at the time of issuing process the question arises as to who the offender is. That is why Section 204 of the Criminal Procedure Code lays down that, if in the opinion of a Magistrate ''taking cognizance of an offence'' there is sufficient ground for proceeding, he shall issue summons for the attendance of the accused. It was, therefore, held in Province of Bihar Vs. Bhim Bera and Others, that once cognizance of the case had been properly taken by a Magistrate and the case had been transferred to another Magistrate u/s 192, Criminal Procedure Code, then the latter Magistrate has full seizin of the case and he is at liberty to summon any further persons as accused if he finds evidence against them.

The whole case must be taken to have been transferred, that is the case as against not merely the persons actually summoned but also as against all others whom the transferee Magistrate might consider to be implicated in the offence. This decision was followed in Raghubansh Dubey Vs. The State of Bihar, . These decisions do not, of course deal with a case u/s 195 of the Code of Criminal Procedure.

There is, however, another bench decision of the court in Jugeshwar Singh and Others Vs. Emperor, which deals with such a case. It was observed in this case that the intention of the legislature underlying Section 195 read with Section 476 is to prevent innocent persons being put on trial at the instance of persons likely to be moved by motives of revenge and not protect guilty persons from the penalty of their crimes. What Section 195 prohibits is taking cognizance of an offence of a certain class except on a complaint of a court; but where a court has complained of an offence specified in this section, then cognizance can be and is to be taken of the whole case, that is to say prosecution will go forward as against all the persons found to be concerned in the offence and also under any sections found applicable to the facts which are the subject matter of the complaint.

His Lordship. Rowland. J., cited in support of this observation two decisions of this Court in which complaints had been made by private parties, and which were not cases in respect of offences requiring a complaint by a court. But his Lordship added that cognizance having been taken of an offence, the enquiry will proceed against all the persons whom the evidence shows to have been concerned in it. provided that the Court making the complaint and naming some persons therein has not expressly considered and decided in the negative, the question whether other persons should also be prosecuted on the same facts That case had been instituted on a complaint by a Magistrate u/s 476 of the Code of Criminal Procedure. Originally, the complaint had been filed by the Magistrate against Jugeshwar, Jagdeo and Jugal, and the Magistrate declined to prefer complaint against Raghubar Dayal and Bikhari Lal.

On an appeal by the person at whose instance the Magistrate had taken action u/s 476, the District Magistrate found that there was a prima facie case against Raghubar Dayal and Bikhari also, and u/s 476-B, Criminal Procedure Code, the District Magistrate complained against these two persons and directed that these two accused be proceeded against in the same case as the other three persons already been prosecuted. The trial proceeded, and finally the trial judge convicted all the accused persons, except Bikhari who was acquitted. It was argued, inter alia, that the conviction of Raghbar Dayal could not be sustained, because originally the Magistrate had not preferred complaint against him. Their Lordships, however, upheld the conviction of Raghubar Dayal in view of the observations, referred to earlier. In Nitai Charan Ghose and Others Vs. Kshetra Nath Ganguly, a bench of the Calcutta High Court also took the same view. It was held by their Lordships:

...a complaint made u/s 476, Cr. P.C., need not be against any specified individual or individuals, and even when the complaint names certain persons as the accused, the Magistrate enquiring into the same is not debarred from taking action against other persons whom the evidence may disclose to be concerned in the matter, even though the Court making the complaint may have refused to make a complaint against them, on being moved to do so.

This case had also been started u/s 476 read with Section 195 of the Code of Criminal Procedure. The previous decisions of the Calcutta High Court were discussed, and their Lordships followed the decisions in Giridhari Lal Serowgee Vs. The King-Emperor and Eshan Chunder Dutt v. Prannath Chowdhry (1863) 1 Mar 270. It will be noticed that Section 195 speaks of taking cognizance of an offence, and not of an offender. Section 476 lays down that in respect of the offences referred to in Section 195 the Court concerned may, after such preliminary enquiry, if any, as it thinks necessary record a finding to the effect that it is expedient in the interest of justice that any enquiry should be made, into any offence referred to in Section 195 and then make a complaint thereof to a Magistrate of the 1st Class having jurisdiction in the matter.

Thus, the scheme appears to be that the Court is to make a complaint of an offence only, though in certain cases the names of one or more offenders may also be mentioned, and thereafter the Magistrate in seizin of the complaint is finally to decide the matter, in view of the provision in Sub-section (2) of Section 476 that the Magistrate shall, on receipt of the complaint, proceed according to law and as if upon a complaint made u/s 200. It is true that Section 476 also provides for taking security by the court concerned for the appearance of an accused before the Magistrate and also for sending an accused in custody. This provision, however, conies into force, only when the names of certain offenders appear on the face of the record. If I may say so with respect, the view taken in the aforesaid decisions appears to be the correct view.

Mr. Singh, however, laid stress on the following observations of Ray, J., in the aforesaid case of N. Baksi Vs. M. Yunus, occurring in paragraph 24 of the report.

Still the question remains whether he can take cognizance of such an offence against any person which is one of those offences in which some prerequisites are required to be fulfilled before cognizance can be taken. u/s 195, Criminal P. C. offence of defamation cannot be taken cognizance of without a formal complaint by the person aggrieved.... It is to be borne in mind that in case of such offence it is optional with the complainant either to proceed or not to proceed against the accused, and it is equally optional with him to proceed against some of the accused persons and not to proceed against others.... It has been argued very strenuously that once a Magistrate takes cognizance of an offence-and taking cognizance means judicial investigation of the offence-It follows that it amounts to taking cognizance of the offence against all persons who may be found to ,have committed the same But this even if ordinarily correct must be limited by the requirements of the statute in case of particular offences in which the Magistrate cannot try a person without some condition precedent being fulfilled. Take for example a case in which the previous sanction of the Government or some departmental authority is required before a criminal proceeding can be initiated. Can such an offence be taken cognizance of by a Magistrate who has seisin of a case either upon a complaint or upon a police report not relating to that offence but subsequently from evidence comes to the conclusion that such an offence has been committed? The answer to this question is necessarily in the negative.

None of these illustrations covers a case started u/s 476 of the Code of Criminal Procedure. In a case where a complaint has to be made by a person aggrieved or a complaint has to made with the sanction or consent of the prescribed authority, it is the option of the person aggrieved or the authority concerned not to proceed against some or all the persons responsible for the action. That is however, not the position in a case u/s 476, which enables a court to take action in the interest of justice, and if the court is satisfied, after a preliminary enquiry, that an offence contemplated in Clause (b) or Clause (c) of Section 195 has been committed, it may make a complaint thereof and forward the same to a competent Magistrate, and thereafter that Magistrate is competent to summon and try the offenders concerned, even though some of them may not have been named in the complaint forwarded by the court.

Mr. Singh also cited a decision of the Supreme Court in Kuldip Singh Vs. The State of Punjab and Another, but that decision does not appear to be relevant to the question in issue here.

In the result, the application is dismissed.

Anwar Ahmad, J.

12.-13. I agree. I may however, add a few words of my own.

The learned Counsel appearing for the petitioner has contended that the offence in this case related to a proceeding in court and was covered by Section 195 of the Code of Criminal Procedure. Therefore, the transferee Court could not summon the petitioner inasmuch as the Sub-divisional Magistrate did not file any complaint so far as the petitioner is concerned. In course of argument, learned Counsel conceded the position that a transferee Court can summon persons, who are not named in the petition of complaint hut whose names transpire in the course of evidence led in Court. His contention, however is that the present case cannot proceed against the petitioner unless there is a complaint by the Sub-divisional Magistrate before whom the offences were committed. Therefore, he submits that the order passed by the learned Magistrate on the 19th February 1965, summoning the petitioner to face trial, be quashed. The point raised by learned Counsel has already been decided by a Division Bench of this Court reported in Jugeshwar Singh and Others Vs. Emperor, wherein their Lordships have laid down the law as follows:

What Section 195 prohibits is taking cognizance of an offence of a certain class except on a complaint of a Court, but where a Court has complained of an offence specified in this section then cognizance can be and is to be taken of the whole case, that is to say prosecution will go forward as against all the persons found to be concerned in the offence and also under any sections found applicable to the facts which are the subject-matter of the complaint .. .. provided that the Court making the complaint and naming some persons therein has not expressly considered and decided in the negative, the question whether other persons should also be prosecuted on the same facts.

A reference may also be made to the case reported in Nitai Charan Ghose and Others Vs. Kshetra Nath Ganguly, where their Lordships of the Calcutta High Court considered Section 476 along with Section 195 of the Code of Criminal Procedure. It has been laid down in that case, following earlier decisions of that Court, that the Code of the Criminal Procedure provides for taking cognizance of offences and not of offenders, and the Magistrate who had legally taken cognizance of an offence u/s 476 of the Code of Criminal Procedure had jurisdiction to proceed against any one who might be proved by the evidence to be concerned in that offence whether he was mentioned in the order u/s 476 of the Code of Criminal Procedure or not.

In the instant case, the District Magistrate took cognizance of the offences and transferred the entire case to the learned Magistrate. In his order, the learned Magistrate has made no exception so far as the case of the petitioner is concerned and, therefore, in view of the decisions referred to above, it has to he held that the order passed by the learned Magistrate on the 19th February 1965 is perfectly valid and legal and cannot be interfered with.