Ramanand Lal vs Ali Hassan and Others

Kulwant Sahay, J.—This is an application in revision against an order passed by the Sub-Divisional Magistrate of Siwan, dated the 30th January, 1924, whereby he dismissed the complaint of the petitioner u/s 203 of the Criminal Procedure Code. The facts of the case are shortly these:

The petitioner is a Sub-Inspector of Police. In October, 1923 he was in charge of Barharia police station. His case is that on the 8th October 1923, at about 6 p. m., he left Barharia police station along with Mohammad Ibrahim Dafadar to investigate a case u/s 457, I.P.C., at Nabihata. When he reached a mango tope in Seodbarhata on his way to Nabihata, the accused persons armed with sticks, falsas and sword-sticks waylaid him; he was assaulted, his gun was snatched away; and he was compelled to write four hand-notes for the aggregate sum of Rs. 2,050 in favour of Ganesh Prasad Singh otherwise known as Kail Babu. He was further made to write two letters to the Babu asking him to send two sums of Rs. 200 and Rs. 300 through the dafadar Ibrahim and Eamphal gaddi ohaukidar. The dafadar Ibrahim was-made to sign two hand-notes for Rs. 61 and Rs. 107. After this the accused persons went away and the petitioner with the dafadar left the place and returned to the police station at Barharia. The same night he went to Siwan and saw the-Divisional Inspector, and informed him about the occurrence and gave him his statement in writing. A case was thereupon stated by the police against the accused and charge-sheet was submitted against some of them Under Sections 147 and 347, I.P.C. The police case was instituted on the 9th of October, 1923. Subsequently, before examination of witnesses, the Court Sub-Inspector, who was the Public Prosecutor, filed an application on the 15th December, 1923 u/s 494 of the Code of Criminal Procedure for leave to withdraw from the prosecution, and, although a telegram was sent by the petitioner to the Sub Divisional Magistrate protesting against the withdrawal, the Sub-Divisional Magistrate by his order, dated the 15th December, 1923, gave his consent to the withdrawal, and u/s 494(a), Cr.P.C., he directed the accused persons to be discharged. Thereupon the present complaint was made before the Sub-Divisional Magistrate on the 23rd January, 1924. The learned Magistrate examined the complainant on oath and passed the following order: "Statement of complainant recorded. Pat up previous record. Orders reserved till 25th January. I shall pass orders after going through the police record." On the 25th January, the order-sheet shows that the police record had not been received up to that date, and she ease was accordingly adjourned to 28th January. The Sub-Divisional Magistrate, however, asked the complainant by his order of the 25th January to show rulings, if any, which authorised the complainant tin file a complaint after the accused persons had been discharged u/s 494, Cr.P.C. On the 28th of January the complainant was heard but the casa-diary had not been received till that date, and the case was ordered to be put up the next day! On receipt of the case-diary on the 29th of January, the learned Sub-Divisional Magistrate perused the police record, and on the 30th of January he passed his order dismissing the complaint u/s 203, Cr.P.C. The learned Sub-Divisional Magistrate held that the police papers showed that the story of the complainant was not reliable, and as the accused persons had been already discharged, he thought it unnecessary to issue process against them and place them on trial which would cause harassment to the accused persons. He further held that it was doubtful whether in a case where the accused have been discharged u/s 494, Cr.P.C., proceedings can be revived against them on a fresh complaint filed by the complainant on the same facts.

Two points have bean taken by the learned Vakil for the petitioner before me. The first point is that the learned Sub-Divisional Magistrate was wrong on the merits to dismiss the complaint u/s 203; and secondly, that the discharge of the accused persons u/s 494, Cr.P.C., did not debar the Magistrate from entertaining a complaint upon the same facts.

I shall take up the second point first, The learned Magistrate says that he has not been able to find any definite ruling on the point; but he referred to the observations of Jwala Prasad, J., in the case of Biso Ram v. Emperor 1922 Pat. 372 where his Lordship observed:

True it is that an order of discharge u/s 494(a) or u/s 253 in a warrant case does not necessarily prevent the Magistrate from taking cognizance of a complaint on the same facts; but an order of discharge cannot be set aside and the prosecution started afresh unless there are now materials before the Magistrate which were not before him formerly; and upon those materials there is a possibility of a conviction of the accused persons.

Section 403 of the Code of Criminal Procedure provides that a person once convicted or acquitted is not liable to be tried again for the sama offence; but the explanation attached to that Section states that the discharge of an accused parson is not an acquittal for the purpose of that section. The order made u/s 494(a) is an order of discharge of the accused person, and, therefore, Section 403 does not debar the entertainment of the fresh complaint in the present case. In the Full Bench case of Dwarka Nath Mondul v. Beni Madhab Banerji (1901) 28 Cal. 652, it was held by majority of the Full Bench that a Presidency Magistrate is competent to re-hear a warrant case triable under Chap. XXI of the Code of Criminal Procedure, in which he has discharged the accused person. A subsequent Full Bench of the same High Court in the case of Mir Ahmad Husain v. Mahomed Ashari (1902) 29 Cal. 726 has held that a Magistrate in a warrant case having passed an order of discharge is competent to take fresh proceedings and issue process against the accused in respect of the same offence without an order for further enquiry being passed u/s 437 of the Cr.P.C., having the effect of setting aside such order of discharge. The first Full Bench referred to the powers of a Presidency Magistrate, and the second Full Bench referred to the powers of a mofussil Magistrate, and it was held that there was no distinction between the two. A Division Bench of this Court in the case of Bijoo Singh v. King-Emperor (1916) 2 Pat. L.J. 34 has held that there is nothing in the Code of Criminal Procedure to prevent a Magistrate from entertaining a second complaint after an order of discharge by another Magistrate, and the two Full Bench decisions of the Calcutta High. Court referred to above were followed. In the case of Emperor v. Sheikh Idoo (1912) 40 Cal. 71 Mr. Justice Holm wood and Mr. Justice Imam held that an order of discharge does not operate as a bar to fresh proceedings being takers before a competent Magistrate upon complaint or upon a police report, or u/s 190(c) of the Criminal Procedure Code, and the decision of the Full Bench in the case of Mir Ahwad Husain v. Mahomed Askari (1902) 29 Cal. 726 was referred to. Mr. Hasan Imam, who appears for the opposite party in the present ease concedes that, having regard to the authorities, there was nothing in law to prevent the Magistrate from entertaining the complaint filed by the petitioner in the present ease after the discharge of the accused persons in the previous police case.

As regards the merits, I am of opinion that there is no reason to interfere with the order of the learned Sub-Divisional Magistrate dismissing the complaint u/s 203, Cr.P.C. It has been argued by the learned Vakil for the petitioner that once a Magistrate takes cognizance of an offence on complaint and examines the complainant upon oath u/s 200 of the Criminal Procedure Code, he is bound to issue process against the accused persons unless he thinks fit, for reasons to be recorded in writing, to postpone the issue of process u/s 202 of the Code, and in that case be is required either to enquire into the case himself or direct an enquiry by a Magistrate subordinate to him or by a police officer or by such other person as be thinks fib for the purpose of ascertaining the truth or falsehood of the complaint. In the present case it is argued that no reasons have been recorded for postponing the issue of the process, and the learned Magistrate has not enquired into the case himself or directed an enquiry or investigation by another Magistrate or police officer or other persons. It has further been contended that it was not open to the learned Magistrate to dismiss the complaint on an examination of the police papers in connection with the investigation on the information given by the petitioner to the police. As regards Section 202 of the Criminal Procedure Code, I find that the learned Magistrate in his order of (lie 23rd January, 1924, gives a reason for postponing the issue of process. He says: "Orders reserved till 25th January. I shall pass orders after going through the police record." There is, therefore, a reason given for postponing the issue of process, namely, that he wanted to look into the police records. As regards the contention of the learned Vakil for the petitioner that the Magistrate could postpone the issue of process only if he thought an enquiry to be necessary either by himself or by another Magistrate or police officer and that no enquiry had been made, I am of opinion that the enquiry contemplated by Section 202 by the Magistrate himself does not necessarily mean an enquiry by examining witnesses or by holding an investigation, into the case. It is open to the Magistrate to investigate into the matter in order to ascertain the truth or falsity of the complaint in any way he thinks proper. In the present case an investigation had been made by the police and witnesses had been examined by the investigating police officer, and there was nothing in law to prevent the Sub-Divisional Magistrate from looking into those papers for the purpose of ascertaining the truth or falsehood of the complaint. The enquiry contemplated by Section 202 is not limited to any particular form of enquiry and, if, upon looking into the police papers, the learned Sub-Divisional Magistrate was satisfied that it was not a fit case in which process ought to be issued against the accused person, I see nothing wrong in law in the Magistrate doing so. As regards the contention that it was improper for the Magistrate to look into the police papers, I see nothing improper therein either. In his petition of complaint the petitioner had stated under heading 6 that "the entire detail of the occurrence as it look place was at once reported to the Inspector of Police, Siwan, on which First Information Report was drawn up and case No. 2, dated the 9th October, 1923, Section 395, I.P.C., was started. The said First Information Report contains all the facts of the occurrence in detail." "That the Inspector and the Sub-Inspector of Police, Siwan, investigated the case; and the investigation was supervised by the then Superintendent of Police of Saran, who found the case to be true and well-proved and then a charge-sheet under Sections 147 and 347, I.P.C., against the accused persons Nos. 4, 6, 8, 10 and 11 on bail and Nos. 1, 2, 3, 5, 7, 15, 16, 17 and 18 as absconders was submitted." Therefore the petitioner himself in his petition of complaint had referred to the First Information Report lodged by him before the police and the investigation made into the case by the police, and the Magistrate therefore acted properly in looking into those papers before ordering the issue of process against the accused. The learned Sub-Divisional Magistrate in his order dismissing the complaint has considered all the facts very carefully and, after going through all the papers on the record, I am clearly of opinion that there was nothing improper or illegal in the order passed by the learned Sub-Divisional Magistrate, and the complaint was rightly dismissed.

I see no reason to interfere with the order complained against; and I dismiss this application.