Patna High Court
Kanhai Raut And Ors. vs Budhan Mahto on 20 May, 1977
Equivalent citations: 1978CRILJ667
JUDGMENT B.S. Sinha, J.
1. This reference Under Section 438 of the Cr.PC 1898 (hereinafter to be referred to as 'the Code') has been made by Shri Sharda Prasad, Sessions Judge, Bhagalpur. By an order, dated 30-1-1973 S. N. P. Singh, J. as he then was, directed it to be heard by a Division Bench, as he was of the view that there was a conflict between the decision in S. N. Dubey v. Devi Kant Jha and the umreported decision, D/- 26-1-1972, passed in Shital Prasad Singh v. Janeshwar Singh (Criminal Misc. No. 897 of 1970 (Pat)) by Mr. Justice J. Narain. That is how the case is before us.
2. On 8th Dec, 1969, the opposite party, Budhan Mahto, filed a complaint petition before the Sub-Divisional Magistrate of Banks alleging offences having been committed Under Sections 144 and 379 of the IPC Shri Surya Narain Sinha, 2nd Officer of Banka examined the complainant on solemn affirmation on the same day and thereafter passed an order for enquiry Under Section 202 of the Code by Shri S. N. Gupta, Magistrate, Banka, who submitted his report on the 30th May, 1970, stating that no prima facie case bad been made out. On 13th June, 1970, the complainant filed a protest petition and the matter was placed, before Shri P. Aind, 3rd Officer, Banka, who passed an order on 17th June, 1970, the relevant portion of which runs as follows:
Cognizance Under Section 397, IPC is taken and case transferred to the file of Shri V. Topno, Munsif-Magistrate, 1st Class, Banka, for favour of Disposal.
Against this order, Kanhai Raut and others filed a petition before the learned Sessions Judge of Bhagalpur for making a reference to this Court (or setting aside the aforesaid order.
3. During the hearing of this case, we considered it expedient to obtain a report from the District Magistrate of Bhagalpur whether there had been drawn up a distribution list of work of the Gazetted Officers at the Sub-Divisional level as contemplated Under Section 17 (1) of the Code. In such circumstances, the case after being heard, in part, was adjourned.
4. From letter No. 407, dated the 19th Feb., 1977 of the District Magistrate, Bhagalpur, it appears that Shri P. Aind, Deputy Magistrate and two other Magistrates, namely, Shri S. N. Singh and Shri M. Baitha had worked in place of the Sub-Divisional Magistrate in his absence and were vested with the necessary powers. It must, therefore, be held that Shri Aind on the relevant date was successor-in-office of Shri S. N. Singh, 2nd Officer, Banka who in terms was the successor-in-office of the Sub-Divisional Magistrate. That being so, under the provisions of Section 559(1) of the Code, Shri Aind on 17-6-1970 occupied the same office or Court that Shri S. N. Singh occupied on 6-12-1969 at Banka, namely, that of the Sub-Divisional Magistrate. Shri Aind, therefore, was successor-in-office of Shri Singh before whom a complaint was filed or who had taken cognizance of offence on the basis of the complaint. I am, therefore, of the view that Shri Aind could pass an order Under Section 203 or 204 of the Code in respect of such a case. (See Krishnadeo Prasad v. Mt. Budhni .
5. The learned Magistrate (Shri Aind), however, on 17-6-1970, as I have quoted above, after taking cognizance, transferred the case to the file of Shri V. Topno, Munsif-Magistrate, 1st Class, Banka, for favour of disposal. It has been repeated-held and pointed out by this Court 1hat cognizance cannot be taken twice in the same proceeding. In a complaint case, it is only after cognizance is taken that the complainant has to be examined on solemn affirmation Under Section 200 of the Code. Therefore, when Shri Sinha, after examining the complainant on solemn affirmation on 8-12-1969, passed an order for enquiry Under Section 202 of the Code, he had already taken cognizance of the case. After such enquiry, the complaint could have been dismissed Under Section 203 of the Code if no sufficient ground for proceeding was made out. Conversely, however, if there were sufficient grounds for proceeding, then the Magistrate proceeds to act Under Section 204 of the Code, which provides that if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he shall issue summons or warrant as the case may be for appearance of the accused person. Hence, in the instant case, when after the receipt of the enquiry report, the learned Magistrate stated that he was taking cognizance, he was substantially passing an order Under Section 204 of the Code. In Umashankar v. State of Bihar 1975 BBCJ 531 : 1975 Cri LJ 1954, N. P. Singh, J. held that when an order is passed for all purposes Under Section 204 of the Code, the Magistrate should also issue summons or warrant as the case may be, in accordance with the provisions of that section and then only he should transfer the case for disposal. In arriving at this decision, the learned Judge had relied upon a decision of the Supreme Court in Rajendra Nath Mahato v. T. Gangooly as also upon a Bench decision of this Court in Sudama Singh v. Kavkidra Narain Singh 1973 P L J R 35.
6. I accordingly hold that although the order passed by Shri Aind on 17-6-1970 transferring the case to the file of Shri V. Topno, Munsif-Magistrate, 1st Class, Banka, for disposal before issuance of processes is not in accordance with law and must be set aside, Shri Aind or his successor-in-office namely the Sub-Divisional Magistrate will now pass an order for issuance of processes in terms of Section 204 of the Code.
7. In S. N. Dubey v. Devi Kant Jha , the question that had fallen for consideration was whether Shri R. N. Maharaj was a successor-in-office (permanent or temporary) of the Sub-Divisional Magistrate. The report of the District Magistrate was that Shri R. N. Maharaj was neither a permanent nor a temporary successor-in-office of the Sub-Divisional Magistrate and that there was no order Under Section 17 of the Code. In such circumstances, B. P. Sinha, J. held that Shri R. N. Maharaj could not be said to be acting as a successor-in-office of the Sub-Divisional Magistrate, who had examined the complainant on solemn affirmation and referred the matter for enquiry. He accordingly held that Shri R. N. Maharaj had no jurisdiction to pass the impugned order by which he took cognizance against the accused persons and then transferred the case to a Munsif-Magistrate, 1st Class, for disposal. It must be held that the case was rightly decided being in accordance with the decision of the Full Bench of this Court in Krishnadeo Prasad v. Mt. Budhni .
8. In the unreported decision of Narain, J. in Cri, Misc. No. 897 of 1970 ,(Pat), a complaint was filed before Shri J. Jha., who was doing Sawalkhani. He examined the complainant on solemn affirmation and sent the matter for enquiry Under Section 202 of the Code. On receipt of the enquiry report, the matter was dealt with by the permanent Sub-Divisional Magistrate, who, on 22-5-1970, took cognizance of the offence and transferred the case to Shri J. N. Sinha, a Magistrate could not take fresh cogniz-stances, submission was, that cognizance having been taken by Shri Jha on 26-11-1969, the permanent Sub-Divisional Magistrate could not taken fresh cognizance on 22-5-70. Taking it to be a case of double cognizance, Narain, J. held, that there was no scope for the Sub-Divisional Magistrate to take fresh cognizance and the fact that he recorded an order to that extent is of no consequence. He further held that on account of recording of such an order, no illegality had crept in the proceeding. In para 13 of the judgment, he held that Section 192(1) of the Code authorised the Sub-Divisional Magistrate to transfer any case of which he has taken cognizance for enquiry or trial and as in the instant case, the cognizance was not taken by the Sub-Divisional Magistrate or by his successor-in-office, however, cannot make the order of transfer of the case for trial to another Magistrate void. It was at best an instance of irregularity covered by Section 529 of the Code. In view of the Full Bench decision of this Court in Krishnadeo Prasad's case 1965 (1) Cri LJ 58 (SC) it must be held that the decision in Shital Prasad Singh's case (Cri. Misc. No. 897 of 1970, D/- 26-1-1972 (Pat) to the extent pointed out above is erroneous. However, it may be pointed out that even in this case, Narain, J. held the order of the Munsif-Magistrate, Shri J. N. Sinha summoning the accused to be bad in law as he could not be treated a successor-in-office of the permanent Sub-Divisional Magistrate, Shri J. Jha.
9. In the result, this reference is accepted and the order, dated 17th June, 1970 to the extent indicated above, is set aside.
K.B.N. Singh, C.J.
10. I agree.