Patna High Court
Sheikh Abdul Ali And Ors. vs Emperor on 11 June, 1920
Equivalent citations: 59IND. CAS.41, AIR 1920 PATNA 700
JUDGMENT Jwala Prasad, J.
1. The petitioners have moved this Court against an order of the Sub-Divisional Officer of Bhagalpur, dated 11th December 1919, summoning them under Section 155, Indian Penal Code, and contend that the order is bad in law and ultra vires on account of the omission on the part of the Magistrate to examine the complainant on oath under Section 200 of the Code of Criminal Procedure before issuing processes against the accused.
2. The Sub-Inspector of Police of Bhagalpur Mufassil investigated into a riot said to have been committed, on the 3rd December 1919, on some land, in which the petitioners are said to have been interested and ultimately submitted a charge-sheet in that case. He made a separate application to the Magistrate on the 9th December 1919 stating that the riot had taken place for the benefit of the petitioners, who claimed interest in the subject-matter of the dispute.
3. The Sub Inspector was not examined on oath under Section 200 before summoning the accused. The District Magistrate in his report submitted to this Court in answer to the rule issued upon him, says that cognizance was taken under Clauses (b) and (c) of Section 190 of the Code of Criminal Procedure. Clause (c) has obviously no application. In the order in question, dated the 11th December, the Magistrate expressly orders the prosecution of "all the 6 men noted in the Police report." Therefore, the information upon which the Magistrate summoned the accused, was clearly received from a Police Officer, which is expressly excluded from Section 4(h). The Magistrate nowhere says that he instituted the proceedings upon information received from any person other than a Police Officer or upon his own knowledge or suspicion regarding the commission of the offence, in respect of which the accused were summoned by him. This is a necessary condition for taking cognizance under Clause (c). The Magistrate did not comply with Section 191, namely, to inform the accused that they were entitled to have the case tried by another Court as is required on cognizance having been taken under Clause (c). This also shows that the Magistrate did not take cognizance under that clause.
4. As to Clause (b), Mr. Sami contends on behalf of the petitioners that the application of the Sub Inspector was not a Police report within the meaning of the term in that clause, which must be limited to a Police report submitted under Section 173 of the Code with respect to an offence cognizable by the Police. It is urged that the offence under Section 155, Indian Penal Code, disclosed in the application of the Sub-Inspector is not a cognizable one by the Police. The Sub Inspector had no power to investigate that offence, or to submit his report thereon which might fitly be called a Police report. In this contention Mr. Sami is undoubtedly supported by the Full Bench case of King-Emperor v. Sada 26 B. 150 : 3 Bom. L.R. 586 and Ram Lal v. Emperor 55 Ind. Cas. 285 : 1 P.L.T. 73 : 21 Cr. L.J. 269 decided by a Single Judge of this Court. He is also supported by the case of Chidambaram Pillai, In re 1 Ind. Cas. 36 : 32 M. 3 : 5 M.L.T. 16 : 9 Cr. L.J. 130. The Allahabad High Court and the Burma Chief Court, and recently the Calcutta High Court, have taken a contrary view; vide, Sarferaz Khan v. Emperor 19 Ind. Cas. 314 : 11 A.L.J. 331 : 14 Cr. L.J. 218; Nga Saw Re v. Emperor 27 Ind. Cas. 145 : U.B.R. (1914) II, 19 : 16 Cr. L.J. 97 following an earlier case of the same Court in king-Emperor v. Nga Thaung 1 Cr. L.J. 1047 : U.B.R. (1904-06) I, Cr. Pro. 25; Harihar Roy v. Emperor 52 Ind. Cas. 595 : 23 C.W.N. 481 : 29 C.L.J. 383 : 20 Cr. L.J. 675; Bhairab Chandra Barua v. Emperor 53 Ind. Cas. 698 : 46 C. 807 : 29 C.L.J. 318 : 23 C.W.N. 484 : 20 Cr. L.J. 794. The Full Bench decision of the Bombay High Court and the other authorities were considered in the last two cases of the Calcutta High Court referral to above.
5. The Bombay and Madras cases would con-fine the Police report referred to in Clause (b) to the Police report submitted in cognizable cases under Section 173 of the Code. The other High Courts would not place any such limitation and would not confine them only to reports under Chapter XIV of the Code, far less to reports in cognizable cases only. The opinion, therefore, seems to be equally divided and it is, therefore, a difficult task to decide which view is correct.
6. The difficulty has been enhanced by the absence of definition of the words "Police report" either in the Code of Criminal Procedure or in the Police Act (V of 1861) or in the General Clauses Act.
7. Under Section 190, cognizance may be taken, (1) upon a complaint of facts, which constitute such offence.
(2) Upon a Police report of such facts.
(3) Upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed.
8. All offences cognizable by a Magistrate must, therefore, come within one or other of the aforesaid clauses.
9. When cognizance is taken under Clause (a) upon a complaint, the Magistrate is required to examine the complainant on oath under Section 200 before taking action upon the complaint.
10. "Complaint" has been defined in Section 4(h) as meaning the allegation made orally or in writing to a Magistrate with a view to his taking action under the Code that some person has committed an offence, but it does not include the report of a Police Officer. The object of excluding Police report from the definition of "complaint" is, obviously, to exclude it from the operation of Section 200 of the Code and to obviate the necessity of examining the Police Officer before taking action upon his report.
11. Now, Chapter XIV of the Code deals with information to the Police and their power to investigate. Such an information to the Police may be of a cognizable offense or of a non-cognizable offence When the information relates to a cognizable case, it has to be reduced to writing in the form prescribed by the Code called "First Information report" (Section 154). In the case of non cognizable offence, substance only of the information is to be entered in the Station Diary (Section 155).
12. The Police is bound to investigate into the information relating to the commission of a cognizable offence. He is not required to investigate a non-cognizable offence unless he is directed to do so by an order of the Magistrate and, when so directed, he is bound to investigate the same just as a cognizable offence (Clauses 2 and 3 of Section 154). In either case, when the Police Officer makes investigation under Chapter XIV, he is required to submit to the Magistrate a report under Section 173 in the form prescribed by the Local Government. The report under Section 173 may be of a cognizable offence or of a non-cognizable offence when the Police Officer is directed by the Magistrate to investigate it. The Magistrate will, therefore, be competent under Section 190(b) to take cognizance under offence upon a Police report relating to a non-cognizable offence for Section 137 is not confined only to reports in cognizable cases. Power of a Police Officer to investigate and submit his report under Section 173 is the same in cognizable and non-cognizable cases, the only distinction being that, in the latter case, he must have received order of the Magistrate to investigate into it.
13. The view taken in the Bombay and Madras cases and in the case of this Court Ram Lal v. Emperor 55 Ind. Cas. 285 : 1 P.L.T. 73 : 21 Cr. L.J. 269, that a report of the Police must necessarily be of a cognizable case under Section 173, does not appear to be borne out by the aforesaid provision in Chapter XIV.
14. The question then is, whether a Police Officer can make any report outside the provision of Chapter XIV of the Code The Chapter deals with the reports upon the information lodged to the Police, as the heading of that Chapter and Sections 154 and 155 clearly indicate. But is the action of Police confined only to an information lodged before him, or can he investigate into offences of his own initiative, or without any information lodged by any person Every Police Officer is, under Act V of 1861, a member of the Police Force and the word "Police" is, therefore, defined in Section 1 to include all persons enrolled under the Act. The duties of a Police Officer have been defined by that Act and not by the Code of Criminal Procedure. The Code deals with the duties of Police, only to far as they relate to investigation of offences under the Code. Section 24 of the Act lays down:
It Shall be lawful for any Police Officer to lay any information before a Magistrate and to apply for a summons, warrant, search warrant or such other legal process as may by law issue against any person committing an offence.
15. This duty of laying information and of moving the Court for action is irrespective of any information lodged to the Police by any person referred to in Chapter XIV of the Code of Criminal Procedure. Now, when a Police Officer acts under Section 24 of the Police Act and submits his information, regarding the commission of the offence to the Magistrate and applies for action to be taken thereon, does it not become a report of that officer? It would seem to me that the answer must be in the affirmative. The report of the Police is therefore, not restricted only to reports under Chapter XIV upon information lodged to the Police, but embraces all reports by the Police submitted under Section 24 of the 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) of 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 Chapter XIV 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) of Section 190, or in Clause (h) of 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.
16. The word "report" in Clause (b) is designed to distinguish it from a complain or information lodged by a private person before a Magistrate. Complaint by a private person to a Magistrate comes under Clause (a) and information by the private person to a Magistrate comes under Clause (c). A report to a Magistrate by the Police comes under Clause (b). The only limitation laid upon the report is that it must state facts which constitute an offence. Applying this test to the application of the Police Sub-Inspector, dated the 9th December 1919, which I so far purposely refrained from calling a Police report, I have no doubt that it states facts, which prima facie disclose an offence against the petitioners, and, with great respect to the opinion of the learned Judges who have taken a contrary view, I hold that the said application of the Sub-Inspector is a Police report within the meaning of the term in Clause (b) of Section 190, and that the cognizance was properly taken by the Magistrate under that clause. The Magistrate was, therefore, not required to examine the Sub Inspector before issuing processes against the accused. In this view, no question of the irregularities arises and the contention of the learned Counsel on behalf of the petitioners must fail.
17. If, on the other hand, the report of the Police Officer was not a report within the meaning of Clause (b) of Section 190 and was only a complaint under Section 4(h) of the Code, the omission to examine the Sub Inspector under Section 200 was a mere irregularity and would not vitiate the proceedings against the petitioners, as held in the two resent decisions of the Calcutta High Court referral to above and also by this Court in the case of Emperor v. Heman Gope 58 Ind. Cas. 459, 1 P.L.T. 349 : 21 Cr. L.J. 779. The irregularity, if any, can even now be cured by examining the Sub-Inspector on oath and taking action thereon, as the case is at its initial stage.
18. It has also been urged before me that petitioners Nos. 1, 2 and 3 are the occupiers of the land in question, on which the riot is said to have taken place, and have been sent up for trial for the offences connected with the riot, and hence they could not be charged with an offence under Section 155 of the Indian Penal Code, inasmuch as that section implies that the riot must have been committed by persons other than the occupiers and holders of the land. This is a matter of consideration by the Magistrate, who has got seizin of the case.
19. Another objection has been raised that the case under Section 155 should not be tried until the disposal of the riot case. This contention is two fold, Firstly, that it has not yet been established that the riot had taken place upon the land and so the petitioners could not be prosecuted for an offence under Section 155, and secondly, that the petitioners, particularly Nos. 1, 2 and 3, will be prejudiced in their defence in this case so long as the rioting case is not disposed of.
20. It appears to me that the Deputy Magistrate, Mr. Dutt, on the 22nd January 1920, upon the application of the Court Sub-Inspector ordered the present case to be postponed till the disposal of the rioting case. This order was, however, set aside by the Sub Divisional Officer on the 1st May, and the case has been ordered to proceed. On the 10th May 1920, an application was made on behalf of the accused, similar to that made by the Court Inspector on the 22nd January. The Sub Divisional Magistrate has rejected this petition as wall, and the reason given for not acceding to the prayer of both the parties, the case would then be inordinately delayed. There is some force in the contention of Mr. Sami that the riot, which is sub judice, must be established before the case under Section 155 can proceed, and also that the accused would be seriously prejudiced in defending themselves in this case, so long as the riot case is not disposed of and that the accused Nos. 1, 2 and 3 would be still more prejudiced and inconvenienced in defending themselves simultaneously in both the cases. I understand the trial of the rioting case has already commenced and witnesses are being examined and will, I hope, be finished within a reasonable time.
21. For all these reasons, I think, that this case must be postponed till the disposal of the rioting case, and I accordingly direst the stay of this case.