Patna High Court
Sukhdeo Ahir And Anr. vs Samarthi Bhagat on 26 July, 1955
Equivalent citations: 1957CRILJ149
ORDER Kanhaiya Singh, J.
1. This application in revision is directed against the judgment of Mr. B, 13. Verma, Judicial Magistrate, Buxar, dated the 14th September, 1934, by which he convicted the petitioners under Section 427 of the Indian Penal Code and sentenced them each to pay a fine of Rs. 35/- or, in fault, to suffer a fortnight's rigorous imprisonment, with a direction for payment, on realisation, of half of the fine to the complainant by way of compensation under Section 545 of the Code of Criminal Procedure.
2. The facts arc simple but raise an interesting and complicated question of law. At 9 A.M. on the 31st of July 1953, Samarthi Bhagat, the opposite party, lodged at the Itarhi police station a first information report to the effect that on being suddenly aroused from sleep at about 10 P. M. on the preceding night, that is to say, on the 30th of July, 1953, he noticed two persons in his paddy fields close to his house and that when he approached nearer he saw Sukhdeo Ahir and Ram Charitar Ahir, the petitioners before the Court, uprooting paddy seedlings and carrying them away in two bundles, These allegations disclosed two offences, namely, theft under Section 379 of the Indian Penal Code and mischief under Section 426 of the Indian Penal Code, the former being cognizable and the latter being non-cognizable. After investigation, the police found that the case of theft was not established but that on the evidence there was a clear case of mischief. Since the offence of mischief is non-cognizable and a police officer has no authority to investigate a non-cognizable case without the order of the Magistrate as laid down in Sub-section (2) of Section 155 of the Cr. P. C., the police submitted final report non-cognizable under Section 427 of the Indian Penal Code.
Upon this report, the Sub-Divisional Officer, Buxar, took cognizance of the case under Section 427 of the Indian Penal Code and transferred it to Mr. B. B. Verma for disposal. The petitioners were accordingly summoned and put on their trial. The defence of the petitioners was a total denial of the occurrence. The learned Magistrate held that these two petitioners had uprooted paddy seedlings from the field of the opposite party and they were guilty of the offence under Section 427 of the Indian Penal Code. He accordingly convicted them as stated above.
3. It was first contended that the conviction under Section 427 cannot be sustained, because there was no finding as to the extent of damage caused by the mischief of uprooting the paddy. Section 426 provides for punishment for mischief generally. Section 427, however, provides for enhanced sentence where the loss or damage occasioned by the mischief is to the amount of Rs. 50/- or upwards. According to the allegation in the first information report, the loss caused to the complainant was in the tune of Rs. 200, The learned Magistrate considered that the amount of loss had been inflated and that the damage caused was not as great as alleged. After these observations, he proceeded to convict them under Section 427 of the Indian Penal Code. There the Magistrate undoubtedly erred. It was essential to consider whether or not the offence alleged fell within the ambit of Section 427, and for this the determination of the amount of damage or loss, alleged to have been caused, by the Magistrate was imperative.
The punishment under Section 427 cannot be justified in the absence of a clear finding of the extent of loss or damage. When the Magistrate did not accept the alleged amount of damage as correct, he should have recorded the finding as to the actual loss sustained by the petitioners. This omission does not, however, render the judgment invalid. The conviction under Section 427 will be altered to one under Section 426 of the Indian Penal Code. It seems the Magistrate pronounced the judgment without caring to read the provisions of Section 427 of the Indian Penal Code.
4. The next contention is substantial. Under Sub-section (1) of Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; and (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. In this case, there was no complaint before the Magistrate.
The Magistrate further did not purport to act upon information of a third person or upon his own knowledge or suspicion. So, the only section which empowered him to take any steps against the accused was Section 190(b), but obviously enough before he could take action under Section 190(b), he must have before him a report in writing of such facts.
It was contended on behalf of the petitioners that the police report contemplated by Section 190(b) means a police report under Section 173 of the Code of Criminal Procedure, and as there was no such police report before him, he had no power to take action, and consequently the entire proceeding was illegal and ab initio void, and accordingly the order of conviction must be set aside.
Reliance was placed upon the decision of a Single Bench in the case of Ham Lal v. Emperor 1 Pat LT 73 : AIR 1920 Pat 614 (A), in which Das J. held that the police report under Section 190(b) of the Code of Criminal Procedure means police report as contemplated under Section 173 of the Code, that is to say, a report in the course of an investigation of a cognizable offence, and further that if the report to called a complaint under Section 190(a), the non-examination of the complainant on oath was fatal to the prosecution ease.
For this proposition of law, he relied on the case of Emperor v. Sada ILR 26 Bom 150 (FB) (B). With great respect to the learned Judge I may say that the case of Sada does not support his views. In fact, this question did not at all arise in that case. It was later on discussed and distinguished by a Division Bench of the Bombay High Court in the case of Emperor v. Shivaswami Guruswami 28 Cri LJ 939 : AIR 1927 Bom 440 (C). Patkar J. observed in that ease that the wording of Section 190(b) was quite general and would include even a non-cognizable offence being taken cognizance of by a Magistrate upon a report in writing by a police officer.
A similar view was expressed by the Bombay High Court as late as 1048 in the case of Rustom Ardeshir v. Emperor AIR 1948 Bom 103 (D). There is thus no authority in support of the proposition propounded by Das J. in the case of 1 Pat LT 73 : AIR 1920 Pat 614 (A). Apart from this, a different view has been taken by the Patna High Court in other cases.
In the case of Eqbal Khan v. Emperor AIR 1919 Pat 319 (E) Mullick J. held that a duly empowered Magistrate might take cognizance of a non-cognizable offence on a police report under Section 190 (b). The only limitation, according to him, was that in that case the Magistrate must immediately summon the accused. Similarly, in the case of Abdul Ali v. Emperor AIR 1920 Pat 700 (F). Jwala Prasad J. observed as follows:
The report of the police is, therefore, not restricted only to reports under Ch. 14 upon information lodged to the police, but embraces all reports by the police submitted under Section 24 of Act. This is also borne out by the fact that neither in Clause 4 (h), excluding the police report from the definition of 'complaint' nor in Clause (b), Section 190, empowering the Magistrate to take cognizance upon a police report, it is expressly said that such a report must be a report under Ch. 14 of the Code or report only of a cognizable offence.
We cannot restrict the meaning of 'police report' and to my mind we have no right to do so by reading into Clause (b), Section 190, or in Clause (h), Section 4, words that are not there. The legislature thought it desirable to leave it unrestricted and we must interpret the law as it is.
5. Apart from any decided cases, the wording of Section 190, Criminal Procedure Code, does not support the contention raised on behalf of the petitioners. It empowers the Magistrate mentioned therein to "take cognizance of any offence" in one of the three modes laid down therein, namely, upon receiving a complaint of facts which constitute such offence; or upon his own knowledge or suspicion, that such offence has been committed. According to tile plain meaning of the section, cognizance of any offence may be taken in any one of the modes prescribed by the section.
The wording of the section is quite general. If the intention of the legislature was to limit Clause (b) of Section 190 (1) to a report which a police officer is authorised to make under Section 173 in respect of a cognisable offence, it could have made it perfectly clear by introducing in this section appropriate words instead of saying ''any offence" in Sub-section (1) of Section 190 of the Code of Criminal Procedure. Taking the wording of the section as it is, any offence would obviously include a non-cognizable offence and consequently cognizance of a non-cognizable offence may be taken upon a report, in writing by a police officer.
The restricted meaning of the report in Clause (b) would render the entire position anomalous, inasmuch as while the Magistrate could take cognizance upon an information received from any person under Clause (c), he could not take cognizance upon a report in writing by a police officer with respect to non-cognizable offence. I do not think the legislature intended to make such a discrimination between information given by a third person and information by a police officer.
Under Clause (c) a Magistrate can take cognizance of any offence upon information received from any person other than a police officer. Clause (c) thus does not include an information received from a police officer. If the contention raised on behalf of the petitioners is allowed to prevail, there will be no justification, legal or otherwise, for exclusion of an information received from a police officer from the operation of Clause (b).
The main reason for exclusion of the police information is that such information is included in the report envisaged in Clause (b). I am averse to putting a narrow construction on the word "report" in Section 190 (1) (b) as including only reports of cognizable offences.
6. It will be observed that Clause (b) of Section 190 (1) of the Code of Criminal Procedure before its amendment in 1923 read as follows : "(b) upon a police report of such facts". By Act 18 of 1923 Section 190 was amended, and the following clause was substituted for the original Clause (b) : "(b) upon a report in writing of such facts made by any police officer". Before amendment there was no doubt conflict of opinions as to whether Clause (b) included reports in cases which the police had no authority to investigate under Chapter 14.
In some cases "police report'' was interpreted in a technical sense and was taken to include reports in cases which the police could investigate under Chapter 14 of the Code of Criminal Procedure, that is to say, in cognizable cases and such non-cognizable offences as fell under Sub-section (2) of Section 155 of the Code of Criminal Procedure, namely, the non-cognizable offences into which the police had been ordered by the Magistrate to investigate. On the other hand, it was held by some High Courts, including the Patna High Court, that the expression ''police report" included reports in non-cognizable offences also.
In order to remove the ambiguity attaching to the expression "police report'', the Code was amended in 1923, and the amended Clause (b) does not speak of "police report" but of ''a report in writing of such facts made by any police officer".
7. Now, "report" cannot be interpreted in its technical sense as a police report, and it has not been so interpreted subsequent to the said amendment. Now, the general consensus of judicial opinion since after the amendment of the section is that the expression "report" in writing of such facts made by any police officer must be given an extended meaning so as to include any report of a police officer, whether the offence is cognizable or non-cognizable.
A Full Bench of the Madras High Court held in the case of the Public Prosecutor v. Ratnavelu Chetty 27 Cr LJ 1031 : AIR 1926 Mad 865 (G), that under Sections 190 (1) (b) & 200 (aa) of the Code of Criminal Procedure, as amended by Act 18 of 1923, Magistrates referred to in Section 190 have jurisdiction to take Cognizance of even non-cognizable offences upon a report made in writing by any police officer without examining him on oath.
In Bhairab Chandra Barua v. Emperor 23 Cal WN 484 : AIR 1919 Cal 433 (H), the Calcutta High Court held that a police report in a non-cognizable case is either a complaint under Section 4 (1) (h) or a. police report under Section 190 (1) (b) of the Criminal Procedure Code. A similar view has been taken also by the Allahabad High Court in Prag Datt Tiwari v. Emperor AIR 1928 All 765 (I); by the Lahore High Court in Emperor v. Walli Mohammad AIR 1928. Lah 66 (J); and by the Sind High Court in Abdullah. Khan v. Emperor AIR 1933 Sind 188 (K).
The report referred to in Section 190 (1) (b) of the Code of Criminal Procedure is, in my opinion, not limited to reports made in cognizable cases only. It embraces reports by a police officer even in non-cognizable cases.
8. Assuming that the report envisaged in Section 190 (1) (b) should have a restricted meaning so as to include only reports of cognizable cases, the same meaning must consistently be given to the report in the definition of complaint in Clause (h) of Sub-section (1) of Section 4 of the Code. "Complaint" is defined to mean the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer.
If by ''report'' is meant a report in cognizable cases only, then manifestly enough "complaint" will include the report of a police officer in a non-cognizable case. Therefore, the report in this case may very well be treated as a complaint under Section 190 (1) (a). The only condition for the application of Clause (a) of Sub-section (1) of Section 190 is that the facts disclosed in the complaint must constitute an offence. This is exactly the case in the present case.
The report of the police said in clear words that the petitioners had committed an offence. of mischief. Therefore, the Magistrate was competent to take cognizance under Section 190 (1) (a). The only thing is that there was no examination of the police officer on oath, but since after the amendment of the Code in 1923, this is not necessary.
Under Clause (aa) of Section 200 of the Code of Criminal Procedure, when the complaint is made in writing, there is nothing to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties. There was, therefore, no necessity of the examination of the police officer on oath, and the report of the police can very well be treated as a complaint under Section 190 (1) (a).
9. In this particular case there is a further consideration. The allegations of the complainant disclosed two offences, namely, theft which is cognizable and mischief which is non-cognizable. As pointed out in the case of In re Venkanna 26 Cr LJ 1556 : AIR 1925 Mad 856 (L), when the first information lodged before the police disclosed both cognizable find non-cognizable offences, it would not be illegal if the police investigated both the offences. In fact, in such a case when both the offences arise out of the same set of facts, the investigation cannot at all be bifurcated.
If, therefore, the police had power to make investigation in this case notwithstanding the fact that one of the offences alleged by the complainant was non-cognizable, it cannot be said that the report that the police submitted was not a report within the meaning of Clause (b) of Sub-section (1) of Section 190 of the Code of Criminal Procedure.
10. Lastly, the defect in the jurisdiction of the Magistrate if any, is cured by Section 529 Of the Code of Criminal Procedure. Under Section 529 (e) if any Magistrate not empowered by law to take cognizance of an offence under Section 190, Sub-section (1), Clause (a) or Clause (b) erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. Clause (c) of Section 190 (1) stands on a different footing.
If the Magistrate has no power to take cognizance under Clause (c), the proceedings initialed by him shall be void under Section 530 (k). A distinction, therefore, has been made between Clauses (a) and (b) on one hand and Clause (c) on the other. In this particular case, the Magistrate was empowered to take cognizance of an offence under Section 190 and did, as a matter of fact, take cognizance in this case on police report of a non-cognizable offence.
This case, therefore, stands on a better footing than a case where there was initial lack of jurisdiction in the Magistrate to take cognizance under Section 190 (1) (b), Criminal Procedure Code. Assuming that the cognizance was irregularly taken in the present case, the proceedings will not be open to objection by virtue of Section 529 (e).
11. Thus, taking any view of the case, the proceedings initiated in this case cannot be said to be ab initio void so as to vitiate the conviction of the petitioners. There is no merit in this revision application and it is accordingly dismissed.