N. Baksi vs M. Yunus

Ray, J.—This is an application for transfer of a complaint case pending before the District. Magistrate of Patna to the Munsif Magtstrate at Bhagalpore. The petitioner is Mr. N. Bakshi, Commissioner of the Patna Division, and the-opposite party is Mr. Yunus; Barrister-at Law, said to be proprietor of a daily ''Patna Times.'' It is alleged in 3 & 5-11-1946 issues of the daily, a defamatory letter was published relating to Mr. Bakshi, in his official capacity, as a. Commissioner. Mr. Bakshi filed a complaint u/s 500, Penal Code on & 2-1947 in the Court of the District Magistrate of Patna against the printer, the publisher, and the editor of the paper. The District Magistrate issued processes against those people summoning them to stand (their trial under the section. The accused per-sons of that case moved this Court for transfer out of the district of Patna, and Meredith J. directed transfer of the case to the file of the Munsif-Magistrate at Bhagalpore where the case is pending trial. This petition of complaint contains certain allegations suggesting that Mr. Yunus was "also implicated in the (publication of the defamatory matter, but stated that, as at that time the petitioner had no sufficient materials before him to establish iris connection, the complainant bad refrained from complaining against him. It is alleged that later, early in the month of May, in pursuance of a search under a warrant issued by the District Magistrate of Patna, discovery of certain documents had been made, which, according to the complainant, furnished sufficient proof to connect Mr. Yunus with the publication. This led the petitioner to file a complaint against Mr. Yunus on 19-5-1947, and the District Magistrate having taken cognisance of the -offence has issued process against Mr. Yunus. Thereupon Mr. Bakshi has moved this Court for transfer of this case to the same Court before whom is pending the defamation case started earlier against the editor, the printer and the publisher of the paper so that multiplicity of proceedings be avoided and all the accused persons may be tried together in one trial.

This petition is opposed on the only ground that the District Magistrate of Patna after transfer of the first defamation case ceased to have any jurisdiction over the offence and his order issuing process against Mr. Yunus on the petition of complaint is without jurisdiction. In this view of the matter, it is contended that there is no case which can be directed by ''this Court to be transferred. The submission of the opposite party is that when a Magistrate itakes cognizance of an offence he takes cognisance of the offence as a whole, that is to say, not only against the persons named as offenders, but also against anybody who might, in any circumstances, be found to have committed the offence, and further that after such cognizance is taken, if the case is transferred u/s 192, Criminal P.C. whether the transfer is made by the Magistrate (district or sub-divisional) taking cognizance or by the direction of the High Court, the Magistrate to whom the case is transferred acquired seisin of the whole offence in the sense. that it is he and he alone who could put on trial any other offender than those who were named as accused in the petition of complaint; so long &s he has seisin of the case and till it terminates before him, no other Magistrate can take fresh cognisance against any other person and try him. The learned Advocate-General who appears for the petitioner, on the other hand, contends that this rule cannot be of universal application as an absolute rule of law, and does no apply, particularly to such cases in which the transferee Magistrate will have no power to take cognisance of an offence u/s 190, Criminal P.C. He submits that the power to take cognisance of any offence under any one of the three ways mentioned in the section is a statutory power and cannot be conferred upon the transferee Magistrate by the mere fact of the'' case, as it stands against some named offenders, having been transferred to him. Lastly, he submits that in any view of the matter, the offence of defamation, as in the present case, being one which cannot be taken cognizance of by any Court without a complaint in that behalf preferred by the person aggrieved by the offence, the transferee Magistrate can have no power to take cognizance of the off once against Mr. Yunus against whom there was no complaint at the time when the transfer was made and that he should be equally powerless even if a petition of complaint against Mr. Yunus is filed before him by the aggrieved person, namely, Mr. Bakshi,'' as he is not a Magistrate empowered in this behalf within the meaning of Section 190 of the Code.

Mr. Yunus in support of his arguments, and by way of repudiating the contentions of the learned Advocate General, has cited a number of authorities, and urges that there is a consensus of opinion that the transferee Magistrate acquires all necessary powers in order to enable himself to take cognizance of the offence even thdugh he is not one of the Magistrates having the statutory power of taking cognizance u/s 190 of the Code. The main aspect of Mr. Yunus''s argument is that either the Magistrate as power to take cognisance of an offence u/s 190 or he acquires it by an order of transfer made u/s 192 of the Code; or made under the direction of the High Court, no matter whether the person proposed that proceeded against by the transferee Magistrate has been named as. an accused in the petition of complaint or not

I shall now proceed to examine the decisions cited by Mr. Yunus for substantiating his contention in its widest possible connotation. The occasion for issuing processes against Mr. Yunus by the transferee Magistrate may arise, confining our attention to the facts of the present case, in two ways: (1) upon receiving a com. plaint directed against him, or (2) upon information received by him in course of the trial with which he is now engaged as against the editor, the printer and the publisher of the paper in relation to the offence of defamation by publication of the defamatory matter. There are two authorities of contradictory views on the transferee Magistrate''s power to take cognizance of the offence upon an information or knowledge within the meaning of Section 190, Sub-section (1), Clause (c) of the Code. One'' of them is Khudiram Mockerjee v. The Empress 1 C.W.N. 105 the other is Nakshetramoli Dei v. Braja Sunderdas AIR 1933 Pat. 647

In the case of Khudiram Mookerjee v. The Empress 1 C.W.N. 105 one Briniaban filed a complaint against one Kurse. The case was proceeded against him in which it was found that a witness examined by the prosecution was also implicated in the offence. The Magistrate thereupon placed the witness on trial along with the other accused person. It was held by their Lordships, O''Kinley and Jenkins JJ., that the Magistrate had no jurisdiction to try the prosecution witness BS his action in that behalf amounted to taking cognisance u/s 190(1)(c), Criminal P.C. and as such he was considered incompetent in view of the provisions of Section 191 of the Code to try it. This case of the Calcutta High Court was referred and distinguished in another case of the same Court, Hemendra Nath Sen Vs. Emperor, . The point of distinction was that the man subsequently tried in the case of Khudiram Mookerjee v. The Empress 1 C.W.N. 105, had never been named as an accused nor referred to in connection with the offence in the original petition of complaint, and, therefore, cognizance could not have been taken against him upon the complaint on which the proceeding had been initiated, the Hon''ble Judges who decided the case in Hemendra Nath Sen Vs. Emperor, being of opinion that had he been mentioned as one connected with the commission of the offence in the petition of complaint, cognizance of the offence in course of the trial should have meant cognizance of the offence upon complaint. The principle deducible from the two cases, therefore, is that where the circumstances are such that the Magistrate taking cognizance upon complaint could not have, if he so chose, issued processes against any particular person, and if the Magistrate came to put such a person on trial on information received by him in course of the trial, his action should amount to taking cognizance u/s 190(1)(c), and if he was not statutorily empowered to take such cognizance, or if he was found incompetent to try for non observance of the provisions of Section 191 of the Code, the Magistrate''s action should be held to be without jurisdiction.

In the case of Buldeo Prasad v. King Emperor A.I.R.1933 pat. 297 their Lordships Bowland and Dhavle, J.J. took a different view as to taking cognizance of an offence not mentioned in the complaint or police report. Dhavle, J., after an instructive review of the relevant provisions of the Code of Criminal Procedure, held that in the circumstances already described, the Magistrate''s proceedings would not be bad, notwithstanding the fact that he had no power to take cognisance under Clause (c) of Section 190(1). In doing so his Lordship has referred to and relied upon some later cases of the Calcutta High Court, namely, the case of Dedar Bux and Another Vs. Syamapada Malakar, . Charu Chandra Das v. Narendra Krishna Chuckerburty 4 C.W.N. 367 and a case of the Rangoon High Court, in which the decision was upheld by the Privy Council, in Abdul Rahman v. Emperor AIR 1926 Rang. 53. His Lordship pointed out that this power of taking cognisance without being empowered u/s 190, Criminal P.C. was derived from Section 246 of the Code in summons cases and Section 254 of the Code in warrant cages and further, as regards enquiry into the sessions cases, from Section 210 of the Code. In the circumstances, it must be taken as almost settled that, other things apart, mere absence of statutory power of taking cognizance as provided in Section 190, Criminal P.C. ill not deter the trying Magistrate from taking cognizance of offences not specifically disclosed either in the petition of complaint or in the police report on which cognisance was originally taken. The question however whether any person who has not been named as an accused either in the petition of complaint or in the police report on which the proceeding was initiated can be proceeded against by the trying Magistrate, who has no power to take cognisance either upon complaint or upon police report or under clause (c) of Section 190 (1) requires different consideration. In that respect the case reported in Khudiram Mookerjee v. The Empress 1 C.W.N. 105, already referred to, stands alone. The case of Baldeo Prasad v. Emperor AIR 1933 Pat. 297 is an authority in relation to a Magistrate taking cognizance of a different offence, not disclosed in the police report, of which he learns from the evidence in the case.

The aspect of the case that I have just now dealt with was, however, not discussed at the Bar, but it is in my view a relevant one for the purposes of the present case too.

Now, I shall deal with the cases cited by Mr. Yunus. Before doing so, I shall keep in view his contention put in two alternative forms, namely, that the transferee Magistrate on taking evidence in the trial of the printer, the publisher and the editor of the paper may issue processes against Mr, Yunus if he finds that there is evidence that he too has committed the offence, and secondly, that at any rate if it is necessary to file a complaint in order to initiate the proceeding against Mr. Yunus, the transferee Magistrate alone has the exclusive jurisdiction to receive the complaint and take cognisance of it notwithstanding that he is not empowered to tstke cognisance on complaint within the meaning of Section 190 of the Code; this power, according to him, he has obtained by virtue of the order of transfer. The cases cited by him are, Golapdey Sheikh v. Queen Empress 27 Cal. 979 , Hemendra Nath Sen Vs. Emperor, . In re Azim Sheikh 7 Cri.L.J. 249. Mathura Singh v. Emperor A.I.R 1934 pat. 467, Raja Madhusudan De v. Panu Pashi AIR 1926 Pat. 858 and Deonarain Singh v. Emperor AIR 1933 Pat. 244.

In the case of Golapdey Sheikh v. Queen Empress 27 Cal. 979, the police submitted a report accompanied by a charge sheet showing that looting of a house had been committed by several persons of whom only one named Jagira could be apprehended. He was sent up for trial by the police. Cognisance was taken on the police report and the case was macle over to a Subordinate Magistrate who discharged Jagira. On an application by Deputy Superintendent of Police moving the District Magistrate, he issued warrants against the other accused persons named in the charge sheet and the police report but not sent up for trial. The jurisdiction of the District Magistrate to issue warrants was questioned and the Calcutta High Court held that cognizance had been taken of "the offence" on the police report and the case was made over to a Subordinate Magistrate, and so long as the case connected with the offence remained with the Subordinate Magistrate, no other Magistrate was competent to deal with it. The District Magistrate''s explanation that the case against Jagira only had been made over to the Subordinate Magistrate was not accepted. It was observed:

The District Magistrate in his explanation in answer to this rule, seems to think that the case only as against Jagira ''was made over to the Subordinate Magistrate for trial, but that is not so. The case regarding the offence charged alleged to have been committed as shown in the police report was before that Magistrate, and he was alone competent, on the police report to proceed against other persons concerned in that offence if he thought proper to do so; and no further orders from the District Magistrate were necessary or indeed could be passed so long as the case remained in his Court. The orders of the District Magistrate of the 12th August are set aside as without jurisdiction, the rule being made absolute.

In the case of Hemendra Nath Sen Vs. Emperor, petition of complaint was filed before a Magistrate, Mr. Bhowmic. He summoned, out of seven persons named in the complaint, one Jaduram. The case was transferred to another Magistrate, Mr. Dutt, under direction of the High Court by the District Magistrate. Mr. Dutt discharged Jaduram but summoned the petitioner of that case. He came up, in revision, to the High Court and contended that it was only the Magistrate, Mr. Bhowmic, who could summon and not Mr. Dutt. It was held:

In our opinion, this rule should be discharged. The petition of Kali Charan Deshi makes it perfectly clear that the present petitioner was prima facie instrumental for the demand of the bribe. If Mr. Bhowmic, who took cognizance of the offence, as he did, u/s 190(a) Criminal P.C. had chosen to issue process against the petitioner, no possible objection could have been taken. Mr. Dutt to whom the case was transferred by the District Magistrate under the provisions of Section 192'', Criminal P.C. stood in the shoes of Mr. Bhowmic and he had full authority to deal with the case as if he himself had taken cognizance of it. The facts cited in Khudiram''s case 1 C.W.N. 105 to which we have referred do not seem to us to have any bearing on the present case.

The ratio decidendi of this case is that what Mr. Bhowmic could do but omitted to do could be done by the transferee Magistrate because he acquires the self-same jurisdiction by the transfer u/s 192, Criminal P.C. Applying this case to the facts of the present case, the test to be laid down is if the District Magistrate of Patna when he took cognizance of the offence on 6th February 1947, could issue process against Mr, Yunus, the Munsif Magistrate to. whom the case has been transferred can also do the same (without at present considering whether upon his own information derived from evidence in the trial or upon the fresh complaint filed before him). In the case of In re Asam Sheikh 7 CriLJ 249 the Sub-divisional Magistrate after examining the complainant summoned one only of the accused persons out of several complained against, in. the petition of complaint. He then transferred the case to an Honorary Magistrate, who acquitted the person originally summoned but issued processes against one Azim who had been named as an accused in the petition of complaint but not summoned by the Sub-divisional Magistrate, who had taken cognizance. The Sessions Judge relying upon a decision of the Calcutta High Court reported in Panchu Singh v. Umar Mahomad 4 CWN 346 made a reference contending that the Honorary Magistrate could not take cognisance of the offence and issue processes against Azim as he had no power to take cognisance upon a complaint. It was held that it was not necessary for the Honorary Magistrate to take cognisance because the Sub-divisional Magistrate had taken cognisance of the whole case and by merely summoning one of the accused the Sub-divisional Magistrate had not dismissed the case against Azim and that the cognisance taken of the whole case could not be held to have been annulled by the mere fact that the Sub-divisional Magistrate summoned one out of several accused named in the petition of complaint. In substance, it was held that cognisance was taken of the case as a whole and the transfer was in respect of the case as a whole and it was doubted if a Case could be transferred piecemeal. Here too, it is noticeable that the person proceeded against by the transferee Magistrate was one whose offence had been taken cognisance of before the transfer though he had not been summoned. Here too the test is whether the Magistrate who took cognisance of the offence primarily could do what has been done by the transferee Magistrate who, it is not necessary, should take fresh cognisance of the offence. In short, taking cognisance of the offence is considered to be an accomplished fact before the transfer and by transfer jurisdiction is acquired on the part of the transferee Magistrate of whatever had been taken cognisance of before the transfer.

In the case of Mathura Singh v. Emperor AIR 1934 pat 467 the police in a charge sheet submitted by him named 28 persons as accused but recommended only some of them to be put on trial and the rest to be released. The Magistrate who took cognisance on the police report did not pass any order on this recommendation of the police but transferred the case forwarding the police report to a Subordinate Magistrate. It was held that the transfer amounted to a transfer of the whole case and not of the case as against the persons who were recommended by the police to be put on trial, and, therefore, the transferee Magistrate could proceed against those persons, who were recommended by the police not to be put on trial. In this there is an observation by Varma J. which reads:

The real confusion seems to hare arisen by losing sight of the fact that cognisance is taken of an offence and not of individual offender

In dealing with the Sub-divisional Magistrate''s explanation that in transferring the case to the Subordinate Magistrate he had transferred the case against the persons recommended by the police to be tried, his Lordship observed:

At present we are not concerned with what his intentions were when he transferred the case from his file, but we have to see whether what he did on 28th February amounted to taking cognizance of the offence or not. For this purpose, we have to refer to some of the earlier orders and that is why I have quoted them in extenso. When the charge sheet was received as least two of the accused were in custody, and the others were on bail. The learned Sub-divisional Magistrate while, transferring the case to the file of Mr. Rahman ordered personal cognizance to be taken of the prosecution witnesses for 15th March 1933. He also ordered that these things should be placed before the Second Officer on 3rd March 1933, for passing a remand order on the accused and for taking fresh bail. There is nothing in this order to indicate that he tons excluding the petitioners from the operation of his order simply because the police did not want to proceed against them. Therefore, the order of 28th February 1938 read with the earlier orders, in my view, amounts to taking cognizance of the offence by the Sub-divisional Magistrate. u/s 190, Criminal P.C. cognizance is taken of the offence and not necessarily of the individual offenders whose names transpire in the course of the investigation. In the case of Sourendra Mohan v. Emperor 37 Cal. 412 it was laid down that ''taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.'' In this case, if the Sub-divisional Magistrate acted at all, the order for transfer was evidently made u/s 192 of the Code, and unless he had taken cognizance of the case he could not have transferred it to a Subordinate Magistrate. The real confusion seems to have arisen by losing sight of the fact that cognizance is taken of an offence and not of individual offenders. The case of Deonarain Singh v. Emperor AIR 1933 Pat 244 clearly points out that the expression ''case of which he has taken cognisance'' in Section 192(1), Criminal P.C. means nothing more than the judicial investigation into any offence of which he has taken cognizance. The explanation of the Sub-divisional Magistrate that ''he took cognizance only in respect of the persons sent up by the police'' in the light of above observations means only this that he took cognizance of the offence. And his action in transferring the case without excluding any of the petitioners shows that he transferred the whole case for disposal. I am therefore of opinion that argument that the petitioners were tried without jurisdiction cannot succeed,

In the case of Raja Madhusudan Deb v. Panu Pashi AIR 1926 Pat. 358 a complaint was filed before the Sub-divisional Magistrate, who, after making certain enquiries u/s 200, Criminal P. 0., dismissed it. The Sessions Judge directed a further enquiry by the same Magistrate, the High Court being moved to transfer the case to another Magistrate by name Babu M.N. Bose. When Mr. Bose began to try the case, an objection was taken to the trial on the ground that he had no jurisdiction to do so, he having been asked only to make an enquiry u/s 200, Criminal P.C., and he having no power to take cognisance u/s 190 of the Code. Macpherson J. held that cognisance of the offence had been taken on complaint by the Sub-Divisional Magistrate, and that the transfer of the case under orders of the High Court did not amount to a direction u/s 200(1) of the Code but was a transfer to an officer competent to try the whole case as it stood before the Sub-Divisional Officer dismissed the complaint with the order for further enquiry made by the Sessions Judge super-added. His Lordship further observed:

If the Sub-Divisional Magistrate acting u/s 192(1) transfers a case of which he has taken cognisance before issue of summons (the provisos to Section 200 show that he may do so) the Magistrate who receives the case on transfer has power to do all that is requisite to try and decide the case, including power to issue summons on the accused. He has the same power where the High Court directs transfer of the case from the file of the Sub-Divisional Magistrate and the case is transferred to his file in accordance with that direction.

In the case of Deo Narain Singh v. King Emperor AIR 1933 pat. 244. Sub-Divisional Magistrate received charge-sheet in which 29 persons were mentioned as accused, but the police forwarded 9 accused persons only making an observation against the names of the other accused persons in the charge-sheet "not sent up for trial." The Sub-Divisional Magistrate transferred the case to a Subordinate Magistrate forwarding to him the charge sheet of the accused persons forwarded by the police. The case came on for hearing before the Subordinate Magistrate on 27th September. Five of the persons described as absconders in the charge sheet then appeared before him and the trial was then taken against 14 persons including the nine forwarded by the police without any comment by the Court, the Crown or the parties. On the same day, a petition was filed before the Sub-Divisional Magistrate praying that a charge-sheet should be called for against the remaining seven accused persons, that is to say, the 7 whom the police did not propose to send for trial to avoid piecemeal trial. The Sub-Divisional Magistrate; sent it to the Deputy Magistrate for necessary orders. But later, on some consultation between the Sub-Divisional Magistrate and the Subordinate Magistrate and on repetition of another petition before the Sub-Divisional Magistrate in the view that the Subordinate Magistrate could not dispose of the mattter as he was not specially empowered to take cognisance of the case, the Sub-Divisional Magistrate on 3rd October, called for charge-sheet and when such a charge-sheet was received, he made a transfer to the same Deputy Magistrate for favour of disposal. After the case proceeded on to the stage of defence, the learned Sessions Judge being moved made a reference to the High Court submitting that the order of 3rd October, of the Sub-Divisional Magistrate was without jurisdiction and recommending that the same be set aside. His Lordship Macpherson J. observed:

But the correct view appears to be that ''case of which he has taken cognisance'' means nothing more than ''the judicial investigation into any offence of which he has taken cognisance.'' Since 1900 when the decision in Golapdey Sheikh v. Queen Empress 27 Cal. 979 was given, there has been a cursus curiae that once the Sub-Divisional Magistrate having taken cognizance of an offence on a charge-sheet submitted by the police in circumstances like the present, has made over to a Subordinate Magistrate the Charge sheet and the accused forwarded by the police in custody or bail with an order that the transfer is ''for disposal'', he has made over the judicial investigation into the offence and not merely the judicial investigation into the offence so far as regards the particular accused. At one time the Sub Divisional Magistrate or Joint Magistrate made a distinction between making over a case ''for disposal'' and making it over ''for hearing'', it being understood that in the latter case he did not purport to make over the whole case. With regard to this practice, Henderson J. in A jab Lal v. Emperor 32 Cal. 783 said: Whether such a transfer is made is a question of fact depending on the intention of the Officer making the order, which intention must be gathered from the order itself. Where no reservation is made as in the cases cited and in the case before us, I should certainly conclude that the entire case (in the sense above mentioned) had been transferred. In the present instance, the order itself appears to show that the whole case was made over. If the whole case was made over, the Deputy Magistrate had full seisin of it. In my opinion, in such circumstances it was not open to the Sub-Divisional Magistrate, unless he proceeded u/s 528, to pass any orders with regard to the case and in particular to call for a charge-sheet against the petitioners.

It may be observed that in construing the charge-sheet, his Lordship said at p. 343 of the report:

Technically he was probably in error in saying that the charge-sheet had only been received against 9 persons.

It is remarkable to note that in this view the whole case according to his Lordship means the case against all persons named as accused in the charge-sheet though notsent up for trial. Had the Sub-Divisional Magistrate in this case, as well as in the case reported in Mathura Singh v. Emperor AIR 1934 Pat. 467 already referred to, passed an order accepting the recommendation of the police about the release of some and then transferred the case, quite a different consideration would arise in the matter of extent of the transferee Magistrate''s power to try such persons as accused of the offence. His Lordship Macpherson J. has relied extensively upon the case of Golapdey Sheikh v. Queen Empress 27 Cal. 979 and, particularly with reference to what transfer of a case means, upon the case of Ajab Lal v. Emperor 32 Cal. 783. This circumstance leads me to examine elaborately the facts and circumstances in Agab Lal''s case 32 Cal. 783. The passage quoted by Macpherson J. from that decision already quoted above is of very great significance. To focus attention I should re-quote it here:

Whether such a transfer is made is a question of (act depending on the intention of the Officer making the Older, when intention must be gathered from the order itself. Where no reservation, is made as in the case cited and in the case before us, I should certainly conclude that the entire case (in the sense above-mentioned) had been transferred.

This makes it clear that the acquisition of jurisdiction by the transferee Court and corresponding cesser of such jurisdiction of the primary Court depends upon the fact as to what had been transferred and necessarily, therefore, upon what had been taken cognizance of before transfer. The learned Judge has also laid down certain general propositions. In view of its importance I propose to deal with it in some elaborate manner. In that case, one Jogeshwar Roy lodged information before the Sub-Inspector of Police at Bhagalpore that the petitioners before the High Court and several other persons had looted his orchard, cut down his bamboos, set fire to his house and illegally detained him. The police submitted a report in B form to the Joint Magistrate who however ordered that the report should be sent up in A form. That was accordingly done, but the petitioners were not among the persons mentioned in A form report and sent for trial by the police under Sections 147, 842 and 879. The Joint Magistrate on receipt of the amended report passed the following order thereon:

To M.M. Boy. Deputy Magistrate, for disposal.

The Deputy Magistrate tried the persons sent up for trial and convieted them of certain minor offences but expressed the opinion that the case for the prosecution had been very much exaggerated. On 5th December the conviction was upheld on appeal. In the meantime, on the October, the Court Sub-Inspector applied to the Deputy Magistrate for issue of warrant of arrest against the petitioners and ten other persons in connection with the same occurrence. The Deputy Magistrate refused to issue processes. Thereafter the District Superintendent of Police approached the Joint Magistrate and rewetted him that the petitioners should be proceeded against. The Joint Magistrate acceding to this request made an order for summons to issue to the petitioners. The petitioners moved against this order. The question that was considered by the High Court was whether in the circumstances, the Joint Magistrate had jurisdiction. Henderson, J. who delivered the leading judgment largely relied upon the case reported in Gotapdey. Sheikh v. Queen Empress 27 Cal. 979, Moul Singh v. Muhabir Singh 4 C.W.N. 242 and Radhabullav Roy v. Benode Behari Roy 30 Cal. 419 and observed:

From these authorities the following propositions applicable to the present case may be deduced:

Firstly the order made by the Deputy Magistrate if the case before us amounted to a discharge.

Secondly, that the order making over the case to the Deputy Magistrate for disposal was an order making over the whole case mentioned in the original police report to the Deputy Magistrate.

Thirdly, that until the District Magistrate had withdrawn the case so made over from the tile of the Deputy Magistrate to that of his own Court he bad no power to make any order save an order for farther enquiry u/s 437, Criminal P.C.

Then he concluded with the following words:

I agree generally with the views expressed in the cases cited, and I would hold therefore that the order of the Deputy Magistrate refusing to issue-process on the ground that it was unnecessary to take further action amounted to a discharge, that although the District Magistrate had power to call for the record and make an order for further enquiry, the Joint Magistrate; had no power, so long as the case had nut been withdrawn from the file of the Deputy Magistrate (and if was not withdrawn), to make the order for the issue of summons to the petitioners.

With regard to the names of the petitioners not having been mentioned in the form report it. was observed by Geidt, J. at page 791 of the report:

It is true that in the A form submitted by the Police the names of the petitioners were not mentioned( but it appears to me that the Order "To Babu M.M. Boy for disposal" means that the whole case was transferred, so that it would have been competent for the Deputy Magistrate to issue processes for the attendance of any persona named in the B form previously submitted, who was shown by the evidence to be concerned in the commission of the offence, which the Deputy Magistrate was trying.

I shall also passingly refer to Radhabullav Boy v. Benode Behari 30 Cal 449. In that case the petitioner before the High Court, had been mentioned as accused in the petition of complaint, but no process had been ordered to be issued against him. The District Magistrate transferred the case; notwithstanding the transfer, however, he acting on the petition of complaint, passed an order issuing process against the petitioner. It was held that the whole complaint had been transferred and, therefore,, his order was without jurisdiction.

In the case of Shukadeva v. Hamid Mian AIR 1928 Pat 585 the police submitted a report as to commission of certain offence before the Sub-divisional Magistrate who considered the police report and passed an order in the following terms:

Enter true u/s 802. Accused unknown; evidence unreliable.

Then there was a petition before him challenging the police report which he disposed of by reference to his previous order The District Magistrate was moved, who directed the police to submit a charge sheet. The High Court was moved against this order. His Lordship, Jwala Prasad, J. put the case thus.

The report having been once placed before the Sub-divisional Officer and disposed of by him could not be again put up before the District Magistrate. It went to him on account of the petition of Hamid Mian in which be complained of the order of the Sub-divisional Officer refusing to take cognizance of the offence and also not taking action upon his petition of the 13th August protesting against the police investigation.

It was held by his Lordship:

It seems to me that such an order must be a judicial one as calling upon the accused to take his trial and fettering his liberty, and I do not think that the District Magistrate had the power under the Code to call for a charge sheet after the final report was put up before a Magistrate empowered to take cognizance of the offence u/s 173 and disposed of by him. The order of the District Magistrate must, therefore, be set aside.

I understand this decision to mean that the jurisdiction of the District Magistrate and of the Sub-divisional Magistrate to take cognizance of an offence on police report are concurrent. Of the two officers having concurrent jurisdiction, one having exercised it, the other''s jurisdiction as concurrent original jurisdiction must be taken to have been completely excluded. Of course, if the order of. the Sub-divisional Magistrate in the case last cited would amount to an order of discharge, the District Magistrate would have revisional jurisdiction to interfere and to substitute what he considers to be an appropriate order for the order passed by the Sub-divisional Magistrate to put the accused persons on trial. We are at present, however, concerned with the concurrent original jurisdiction of two Magistrates, namely, the District Magistrate on the one hand and the transferee Magistrate on the There. In that aspect of the case, this decision also throws some light.

I will now proceed to consider another aspect of the case, but before doing so, I must summarise the propositions that are deducible from the authorities already reviewed. To my mind the propositions are: (1) that the jurisdic ton 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 or 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. In this view of the matter, the position resolves itself into this whether on the complaint that was originally filed on 6th February 1947, before the District Magistrate of Patna, he could issue process against Mr. Yunus. It appears that in that complaint it has been hinted that Mr. Yunus was connected with the offence. If the matter rested there, it could be very safely predicated that at that stage and on that petition of complaint the District Magistrate could summon Mr. Yunus. Directly parallel to this case in this view of the matter is the case of Hemendra Nath Sen Vs. Emperor, which has already been cited. There, the petitioner before the High Court had not been named as an accused in the petition of complaint and had been cited as a prosecution witness, but there were facts mentioned in the petition of complaint which showed, in their Lordships'' judgment, that the petitioner before them was prima facie instrumental for the crime. Taking these circumstances into consideration their Lordships said:

If Mr. Bhowmic, who took cognizance of the offence, as he did, u/s 180(a), Criminal P.C. had chosen to issue process against the petitioner, no possible objection could have been taken.

It is, therefore, to be seen in the present case if on the petition of complaint of 6th February, the District Magistrate chose to issue process against Mr. Yunus there could have been any possible objection, the principle being that what the primary Magistrate taking cognizance could not do, the transferee Magistrate cannot--this last becomes the only important question to be answered in this case. The learned Advocate-General would say that as the offence complained of is one of defamation u/s 500, Penal Code, no process could be issued against Mr. Yunus without the persons aggrieved, namely, Mr. N. Bakshi, filing a complaint against him. He sub-mite that as the complainant expressed himself to say that he had till then no materials before him by which he could establish the guilt of Mr. Yunus and that he thus refrained from, at least till then, asking the Court to take steps against him, it could be said that in view of the provisions of Section 198, Criminal P.C. the District Magistrate should not have been competent to issue process against Mr. Yunus on the basis of that petition of complaint of 6th February before him. It is, therefore, urged that what the District Magistrate could not do then, the Munsif Magistrate to whom the case is transferred under the direction of the High Court cannot do, in exercise of the jurisdiction that he acquires by order of the transfer.

It seems well settled that a transferee Magistrate without statutorily qualified to take cognizance o� an offence u/s 190, Criminal P.C. can, after he gets seisin, by transfer, of a case, try the accused persons for an offence other than the one of which cognizance was taken before the transfer arising out of the facts stated, if he finds in course of the trial that such an offence has been committed and that it can be legally tried along with the offence involved in the case transferred. It has also been seen that such a Magistrate can also try a person not arraigned as an accused in the case transferred to him along with the accused persons against whom process has been issued before transfer, if such a person is mentioned either in the petition of complaint or police report as having connection with the offence, so that the primary Magistrate could also without possibility of any objection issue process against him. There, however, may arise a case where such a Magistrate finds in course of the evidence in the trial that some person appears to him to have committed an offence but such a person had been neither named as an accused nor mentioned as having any connection. with the offence in the documents on which, primarily the cognizance of the offence was taken. In such a case, the question arises whether the transferee Magistrate can try and if he does so whether he contravenes the provision of Section 190, Criminal P.C. In the case of Emperor v. Chedi 28 ALL. 212 one Chedi was left in possession of certain licensed premises and while in such possession he refused admission to the police going there. On this, Chedi''s employers, the licensees of the premises, were charged u/s 186 before a joint Magistrate. He acquitted the licensees and forthwith u/s 190(1)(c) took cognizance of the offence against Chedi and tried, convicted and sentenced him to rigorous imprisonment. It was held by Richards, J. that the conviction was bad because the Magistrate neglected to comply with the provisions of Section 191. This case was noticed by their Lordships of the Privy Council in the case of AIR 1927 44 (Privy Council) . The case before their Lordships of the Privy Council was that while a Magistrate had taken cognizance of one offence upon complaint and convicted the accused person of another offence legally triable in the same trial but not mentioned in the petition of complaint, the conviction was challenged on the ground that the Magistrate shall be deemed to have taken cognizance u/s 190(1)(c) and should have, therefore, complied with the provision of Section 191. The Rangoon High Court in V.M. Abdul Rahman v. Emperor AIR 1926 Rang. 53 had overruled this contention in coming to the conclusion there the cognizance was taken upon the complaint and that the additional offence with which the accused persons, were charged could be tried in the same trial under the provisions of Section 235 of the Code and that in such a case the cognizance shall be held to have been taken upon the complaint. In support of the appeal before there Lordships, the authority of Emperor v. Chedi 28 ALL. 212 was cited. Their Lordships of the Privy Council observed:

The complaint is that the Magistrate did not inform the accused that he was entitled to have the case tried by another Court, and for this purpose reliance is placed upon the case of Emperor v. Chedi 28 All. 212 where a Magistrate when trying the owners of certain licensed premises on a charge of refusing to admit the police, acquitted the employers and forthwith proceeded to try and convict the servant without giving him an opportunity of electing to be tried by another Magistrate.

But in that case the Magistrate was proceeding under Clause (c), whereas in this case he was proceeding under Clause (a). It was not a case in which, while trying one person the Magistrate finds occasion to formulate ft charge against some one else, but a case in which ha was taking cognizance of an offense after receiving a complaint of the facts Which constituted the offence. Ha formulated this second charge, as he formulated the first, in consequence of the one complaint.

These observations of then? Lordships of the Privy Council lend support to the correctness of the decision in Emperor v. Chedi 28 ALL. 212 just cited.

There are two other eases of the Calcutta High Court however which strike a discordant note to the view propounded in Emperor v. Ghedi 28 ALL. 212. In the case of Jagat Chandra v. Queen Empress 26 Gal. 786, cognizance was taken of the offences under Sections 352, 854 and 109, Penal Code, on a complaint against three persons. The Magistrate on examining the complainant on oath and soma witnesses issued summonses against the three persons named as accused in the petition of complaint as well as the petitioner before the Court. Subsequently, charges under Sections 193 and 109 were framed. The petitioner moved the High Court on the ground-that the Magistrate could not try him as he had taken cognizance of the offence against him u/s 190(i)(c) of the Code on the ground that his name was not mentioned in the petition of complaint on which primarily cognizance had been taken. The Calcutta High Court held, negativing this objection, that in that case cognizance was taken u/s 190(1)(a) that is, upon the complaint, and not under Clause (c). This case, however, does not meet the difficulty that is involved in the question before us which is whether the transferee Magistrate having no statutory power to take, cognizance ever upon complaint can put on trial a person not named in the petition of complaint. In the case referred to, the Magistrate had the statutory power to take cognizance upon complaint its well as upon ''other information or his knowledge.

To the same effect is another decision of the Calcutta High Court in the case of Dedar Bux and Another Vs. Syamapada Malakar, . In this Case, the husband filed a complaint against certain specified persons under Sections 342 and 363. The complainant was called upon to prove his case. Later, he presented a petition for withdrawal which was not allowed, and the Magistrate proceeded to summon witnesses and ultimately examined the girl and certain other prosecution witnesses and found that though there was no satisfactory evidence against the original accused, there was sufficient evidence against other persons, and treating the girl as the real complainant issued processes against them for offences under Sections 342,352 and 363, Penal Code. The Magistrate was not empowered by the local Government to take cognizance u/s 190(1)(c). The petitioner moved the High Court. Following the case of Charuchandra Das v. Narendra Krishna Chakravarti 4 C.W.N. 867 and Raghab Acharjee v. Emperor 3 C.W.N. cclccix and not following Khudiram Mookerjee v. Emperor 1 C.W.N. 105, it was held that the Magistrate took cognizance under Clause (1a) of Section 180 of the Code and not under Clause (c).

In this state of conflict of authorities, I should rather assume--though on my part I should accept as correct the view expressed in Khudiram''s case 1 C.W.N. 105--that a transferee Magistrate to whom the case, taken cognizance of, on complaint, has been transferred can in course of trial not only arid to the charge other offences not complained against but arising out of the same transaction and disclosed in the evidence but also can put on trial other persons whose names do not appear as accused in the petition of complaint either directly or indirectly. Still the question remains whether he can take cognisance of such an offence against any person which is one of those offences in which some pre requisites are required to be fulfilled before. cognizance can be taken. u/s 198, Criminal P.C. offence of defamation cannot be taken cognizance of without a formal complaint by the person aggrieved. I have shown that the complaint in the present case cm by no stretch of reasoning be held to be a complaint against Mr. Yunus. 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. Unlike the rules of procedure in civil cases, there is no law in criminal cases that all persons who can be tried together for an offence must be made accused persons. In the circumstances the test is if the District Magistrate who took cognizance on the original complaint could not issue process against Mr. Yunus how could the transferee Magistrate do. In reply to a question put by me in course of argument, Mr. Yunus replied that it is a misapprehension to think that the transferee Magistrate could not take cognizance of the offence against him, on a petition filed before him. This answer overlooks the fact that the transferee Magistrate, in this case the Munsif Magistrate, is not empowered to take cognizance upon a c mplaint. He can, as has been shown by a review of authorities hereinbefore mentioned, assume to himself the self-same jurisdiction which the Magistrate taking cognizance had on the very petition-of complaint. In that extended or limited sense of his powers he could exercise the same power as the transferring Magistrate limited to the extent of the petition of complaint filed before him and extended to the extent permitted by sections relating to the trial of summons oases, warrant cases, and cases in which an enquiry preliminary to commitment to the Court of Session is made, because in determining his jurisdiction the question is whether there was a complaint agiinst Mr. Yunus before the District Magistrate of Patna. It has been argued very strenuously that once & Magistrate takes cognisance of an offence and taking cognisance 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.

I will now refer to some cases which establish this proposition quite clearly. In the case of Empress of India v. Kalu 5 ALL. 233, one Dubri complained against Kalu for an offence of rape committed on his wife. In course of evidence, it was found that the offence of which the accused could have been punished was one of adultery, and the trial Court convicted Kalu of adultery. The High Court held:

If a criminal charge of adultery is to be preferred, a formal complaint of that offence must be instituted in the manner provided by law and if it is not, Section 478 will cot have been satisfied.

The learned Judge also observed:

I do not think that the circumstance of his (husband''s) appearing as a witness for the prosecution of that offence can be regarded as amounting to the institution of a complaint for adultery in the sense of Section 478. The expression complaint is a perfectly well understood one.

In the case of Queen Empress v. Deokinatudan 10 ALL. 39 the petitioner had been convicted u/s 500, Penal Code in the following circumstances. A complaint was made in Writing but it did not contain a charge u/s 600, Penal Code, but there were allegations regarding charges under Sections 352 and 504, Penal Code. The Joint Magistrate after having examined the complainant on oath passed an order to the effect:

Let summons issue under Sections 606 and 500, Penal Code.

Later on, he convicted and sentenced the accused. It was held that in view of the provisions of B. 198, Criminal P.C. no cognisance could be taken of the offence of defamation without a formal complaint. Besides, Sub-section (3) of Section 288, Criminal P.C. is decisive on the point.

In the circumstances, it is difficult to hold that the District Magistrate of Patna acted without jurisdiction in entertaining the complaint and in issuing process against Mr. Yunus and that the proceeding now obtaining before him is not a proceeding in law for the purpose of exercising powers of transfer by this Court to the Court of the Munsif Magistrate at Bhagalpure. At the same time, the fundamental principle is that proceedings relating to almost the same, though not identical, subject-matter should not be gone into simultaneously in two Courts Bo as to probabilise conflicting decisions. In the interest of justice, it is required that the Munsif Magistrate who has seisin of the case will be the proper person to dispose of the subject matter of the present complaint. The petitioner has approached this Court in order to avoid multiplicity of proceedings and he wants an order from this Court that Mr. Yunus should be tried along with the other accused persons in the same trial now pending before the Munsif Magistrate. In all fairness to the accused, it is but just and proper that this matter should be disposed of by the Munsif Magistrate though the peritonea may be justified in filing a complaint before the District Magistrate in order to avoid the difficulty of law inasmuch as the Munsif Magistrate is not empowered to take cognizance of the offence and though the proceeding before the District Magistrate cannot be held to be void so that no notice can be taken of it, it is at the same time clear that the District Magistrate should not be allowed to thrust the trial on the opposite party in haste while the fate of another trial already taken against his co accused is hanging in balance. I shall not be understood to say that the trial against Mr. Yunus must, in any view, await the termination of the other trial. It will be for the Munsif Magistrate to consider. We have not before us the materials that require to be considered in this behalf. The order, therefore, that we propose to pass is that the proceeding now pending before the District Magistrate of Patna and arising out of the complaint filed by the petitioner against Mr. Yunus should be transferred to the Munsif Magistrate, Bhagalpore, who should be competent either to issue process against Mr. Yunus in order to try him either jointly with the other accused persons or side by side or to stay the proceeding till the termination of the pending case. In doing so he shall have to appreciate the nature of the evidence against the accused persons of that case and Mr. Yunus, in order to judge how far it will prejudice either all or any one of them in their defence and also to see if duplication of trial can be avoided without such prejudice. This Court, therefore, cannot accede to the petitioner''s prayer of directing that Mr. Yunus''s trial shall be taken up by the Munsif Magistrate jointly with the other accused, nor the prayer of the opposite party that the proceeding before the District Magistrate of Patna shall be quashed or declared void ab initio.

In the result the petition for transfer is allowed and the prayer for a direction for joint trial is disallowed, the consideration of which matter is left to the Munsif Magistrate of Bhagal pore, in the light of the observations hereinbefore mode.

Shearer J.

I am in entire agreement with my learned brother in thinking that it should be left to the learned Munsif Magistrate to decide whether or not to issue process against the proprietor of the newspaper, and, in the event of his deciding to issue process, to decide also whether the proprietor should be tried separately or should be tried along with the editor, printer and author, or supposed author, of the libel. It is undoubtedly open to this Court under Clause (i) of Section 526(1), Criminal P.C. to order that this offence of defamation should be enquired into and tried by the learned Munsif-Magistrate. As I understand it, the order which my learned brother proposes to make is substantially an order under that clause, and I have no hesitation in agreeing to it. In this view of the matter, it is scarcely necessary to wrasider the highly technical point which was raised by Mr. Yunus. I am myself inclined to think that in consequence of the order made by Meredith, J. the learned Munsif-Magistrate had jurisdiction to try this offence, and having jurisdiction to try it, necessarily had jurisdiction to entertain an application that process should issue against the proprietor of the newspaper. I doubt myself if Section 198 of the Code was really a bar to the learned Munsif-Magistrate entertaining such an application. It cannot, I think, be said that in entertaining such an application the learned Munsif-Magistrate is taking cognizance of the offence, as cognizance of the offence has already been taken. Even, however, if Mr. Bakshi, instead of making the complaint which he did to the learned District Magistrate of Patna, should have made an application to the learned Munsif-Magistrate, it is open to this Court, in pursuance of the powers conferred on it by Section 661-A of the Code, if not in pursuance of the powers conferred by Section 526 of the Code, to direct that the petition of complaint and the statement made on solemn affirmation by Mr. Bakshi should be sent to the Court of the learned Munsif Magistrate-and that the learned Munsif-Magistrate should treat them as an application to summon the proprietor, it being, of course, open to the learned Munsif-Magistrate, before taking any action, to require Mr. Bakshi to attend and to examine him further.

It was stated in the course of argument that Mr. Bakshi had instituted two other prosecutions against the printers and publishers of two other newspapers in which also this libel appeared. I cannot help thinking that Mr. Bakshi might have as effectively vindicated his character by bringing a suit for damages against the newspaper which was originally responsible and that the institution of these various criminal prosecutions is likely to involve an unnecessarily large expenditure of public time and money.