Patna High Court
Jagia Devi And Ors. vs Sant Lal Rajak And Anr. on 19 July, 1976
Equivalent citations: 1977CRILJ523
JUDGMENT C.N. Tiwari, J.
1. These three applications have been heard together and the same judgment shall govern them all.
2. Criminal Revision application No. 1367 of 1971 is directed against an order, dated 7-7-71, by which the Sub-divisional Magistrate, Patna City took cognizance of offence;; under Sections 392, 323, 144 and 504 of the Indian Penal Code (hereinafter referred to as the Code) on receipt of report of the Sarpanch, Gram Kutcherry, Fatehpur and transferred the case to Sri A.A. Kumar Sinha, Munsif Magistrate 1st class for disposal. It appears that on 28-6-71 Indreshwar Pd. Singh, a school teacher filed a petition of complaint before the Sarpanch alleging that when he reached the Darwaja of the petitioner No. 1 Ramchandra Singh while returning from school, petitioner 1 abused him and asked him not to proceed and at the order of petitioner No. 3 (Ramnaresh Singh) other petitioner fisted and slapped him. Petitioner No. 2 (Sarbeshwar Singh) snatched away Rs. 22/~ from his upper pocket. Petitioner No. 4 (Girija Singh) snatched away towel from him. Petitioner No. 1 was armed with a dagger and petitioner 3 was armed with a stick. There is a note, dated 28-6-71 made by the Sarpanch on the complaint petition that action would be taken after making inquiry. Inquiry report of the Sarpanch, dated 6-7-71 is to the effect that the allegations were true but the case was not within the competence of the Bench of the Gram Cutcherry and therefore, a request was made in the report that the case should be tried in court. The complaint petition together with the inquiry report was sent to the Subdivisional Magistrate. The Sub-divisional Magistrate by his order, dated 7-7-71 took cognizance of offence under Sections 323, 392 and 144 of the Code and transferred the case to the Munsif Magistrate Sri A.A. Kumar Sinha, for disposal. It is against this order that this revision application has been filed.
3. Criminal Revision Application No. 1446 of 1870 is directed against the order dated 14-10-69 by which the Sub-divisional Magistrate, Chapra took cognizance of offences under Sections 379 and 324 of the Code, against the petitioners. It appears that on 9-9-69 opposite party Kapal Singh filed a petition of complaint before the Sarpanch, Atta Nagar Gram Cutcherry alleging that at about 7 P.M. on 9-9-1969 the petitioners were purchasing property from a Dome. When the complainant protested the petitioners formed an unlawful assembly with the common object to assault the complainant. Petitioner Dharmnath attempted a knife blow on the complainant's neck which however, hit the complainant above his eyes, petitioner Ram Dayal Sah took out a sum of Rs. 115/- from complainant's pocket. When witnesses assembled petitioners left the place of occurrence. On receipt of this complaint the Sarpanch examined the complainant on oath on the same day at about 8 P.M. and directed the complainant to furnish an injury report from a doctor on the following day. Injury report was furnished. On 1-9-69 after examining the witnesses the Sarpanch found that the allegations made out offences under Sections 379, 324, 323 and 148 of the Code and therefore, the case was beyond the competence of the Gram Cutcherry. He therefore, directed the record of the case to be forwarded to the Sub-divisional Magistrate, Chapra, Sadar for taking cognizance and transferring the case to another Magistrate for disposal. The record of the case along with the inquiry report was made over to the complainant for being presented before the Subdivisional Magistrate. On 11-9-69 complainant opposite party presented before the sub-divisional Magistrate the record of the case made over to him by the Sarpanch with a petition requesting the subdivisional Magistrate to peruse the report of the sarpanch and transfer the case for trial to any Munsif Magistrate. The subdivisional Magistrate, by his order, dated 14-10-69 took cognizance and transferred the case to a Munsif Magistrate for disposal. It is against this order that this Criminal Revision application has been filed. It may be mentioned that the petitioners had filed a Revision Application before the Sessions Judge, Saran against the order of the Subdivisional Magistrate, dated 14-10-69 but the learned Sessions Judge, by his order, dated 1-6-6-70 refused to make a reference to this Court.
4. Criminal Misc. No. 1834/72 is an application for quashing the proceeding in case No. 964/C of 1972 T.R. 1210/72 in which cognizance of offence under Section 406 of the Code was taken by the Sub-divisional Magistrate on perusal of the report received from the Sarpanch Narhi Pirhi Gram Cutcherry. It appears that a petition of complaint was filed by the opposite party Santlal Rajak before the Sarpanch on 5-9-71. On the same day the Sarpanch examined the complainant on oath. By his order, D/- 19-9-71 the Sarpanch forwarded the record of the case to the Subdivisional Magistrate, Dinapur stating that the case was beyond the competence of the Gram Cutcherry. The Subdivisional Magistrate, Dinapur, on perusal of the record forwarded by the Sarpanch took cognizance of the offence under Section 406 of the Code and transferred the case to Sri A.P. Choudhury, Munsif Magistrate for disposal by his order, dated 28-4-72. It is this order of the Subdivisional Magistrate, which is said to be without jurisdiction.
5. These cases have come before us pursuant to an order of reference made by a learned single Judge.
6. The only point urged on behalf of the petitioners in all these cases is that the cognizance taken by the subdivisional Magistrate is without jurisdiction and therefore, it is liable, to be set aside. It is submitted that when the Sarpanch found that the complaint disclosed an offence beyond the competence of the Bench of the Gram Cutcherry he had to dismiss the complaint as required by Rule 43(a) of the Bihar Gram Cutcherry Rules, 1962 and he had no jurisdiction to forward the complaint to the Subdivisional Magistrate and the Subdivisional Magistrate had no jurisdiction to take cognizance of the offence on the basis of the report submitted by the Sarpanch.
7. Learned Counsel appearing on behalf of the petitioners has placed reliance on the decision of B.P. Jha J., in Mishri Mandal v. Nageshwar Singh, 1975 Pat LJR 205. That was a petition for quashing an order of the Subdivisional Magistrate, dated 7-9-70 taking cognizance on the basis of a complaint forwarded by the Sarpanch. The learned Judge held that in view of the provisions contained in Rule 43 of the Bihar Gram Cutcherry Rules, 1962 the Sarpanch was bound to dismiss the complaint and he had no jurisdiction to refer the complaint to the Sub-divisional Magistrate and therefore, the learned Judge quashed the order of the Sub-divisional Magistrate taking cognizance on receipt of the report of the Sarpanch. It may be mentioned that Rule 43(a) forbids the Sarpanch to proceed with the case and therefore, he has to dismiss the complaint. But this rule does not forbid the sarpanch to give information about commission of any offence to the Magistrate having jurisdiction to take cognizance of the offence. This aspect of the matter has not been considered in Mishri Mandal's case (Supra).
8. In Hulas Mahton v. Mathura Pd (1976 B.B.C.J 161) this question came up for consideration before S.P. Singh, J. The learned Judge has held that in view of the Bench decision of this Court in Ramkhelawan Choudhary v. State of Bihar, (1970 Pat LJR 434) the decision of B.P. Jha, J. in Mishri Mandal's case is not binding on other Judges of this Court sitting singly.
9. Admittedly all these eases were beyond the competence of the Bench of the Gram Cutcherry. Rule 43(a) of the Bihar Gram Cutcherry Rules provides:
43. Sarpanch to decide about maintainability of case.-If after taking the statement of the complainant on oath or solemn affirmation under Rule 42 the Sarpanch is of the opinion -
(a) that it does not disclose any offence or disclose an offence beyond the competence of the bench of the Gram Cutcherry, he shall summarily dismiss the complaint and inform the complainant of his order forthwith;
10. It, is therefore, urged that when the Sarpanch was of opinion that the complaint disclosed an offence beyond the competence of the Gram Cutcherry it was incumbent upon him to dismiss the complaint and he had no jurisdiction to forward the complaint to the Sub-divisional Magistrate for taking cognizance and transferring the case to another Magistrate for disposal. None of these applications is directed against the order of the sarpanch forwarding the complaint to the Sub-divisional Magistrate for taking cognizance. As stated above, these applications are directed against the order of the Sub-divisional Magistrate taking cognizance of an offence on receipt of the report of the Sarpanch. Therefore, it seems unnecessary to decide the question whether the Sarpanch could not legally forward the complaint made before him to the Sub-divisional Magistrate if the complaint disclosed an offence beyond the competence of the bench of the Gram Cutcherry, In my opinion, what Rule 43(a) says is that if in the opinion of the Sarpanch a complaint does not disclose any offence or discloses an offence beyond the competence of the Gram Cutcherry, he shall not proceed with the case and shall dismiss the complaint. Role 43(a) puts limitation on the power of the Sarpanch to proceed with the case. The Sarpanch is therefore, to dismiss the complaint. But this does not mean that the Sarpanch cannot give the information, regarding commission of such an offence to the Sub-divisional Magistrate who is competent to take cognizanca under the Code of Criminal Procedure. One mode of giving such information to the subdivisional Magistrate, is to forward to Che Sub-divisional Magistrate the complaint petition filed before the Sarpanch. There may be. a case im which after making complaint before the Sarpanch with regard to the commission of a non-compoundable offence which any be beyond the competence of the btnch of the Gram Cutcherry, the aggrieved person is unwilling or unable to prosecute the offender in court of the Magbtnrta after the Sarpanch has dismissed the complaint. In such a situation it is necessary for the Sarpanch to give the information regarding commission of such an offence to the Magistrate having juridiction to take, cognfcance so that justice may be vindicated. I am of the view that though Rule 43(a) forbids the Sarpanch to proceed with the case if the complaint discloses an offence beyond the competence of the Gram Cutcherry and directs that such complaint shall be dismissed, it does not forbid the Sarpanch to forward the complaint in such a case to the Sub-divisional Magistrate having jurisdiction to take cognizance for necessary action either before or after taking cognizance.
11. Then comes the main question whether the order of the Sub-divisional Magistrate taking cognizance on the report of the Sarpanch forwarding the complaint petition is without jurisdiction, In all the three cases the learned Sub divisional Magistrate perused the report of the Sarpanch and the complaint petition and took cognizance of the offence and transferred the case to another Magistrate for disposal. The complaint petitions, which, the Sarpanch forwarded to the Sub-divisional Magistrate contained allegation that accused persons named therein committed the alleged offence. What is contended is that the complaint, which the Sarpanch forwarded to the Subdivisional Magistrate Is not made to the Subdivisional Magistrate and therefore, it is not a complaint as defined in Section 4(h) of the Code of Criminal' Procedure, 1898 and therefore the. Subdivisional Magistrate had no jurisdiction to exercise his powers of taking cognizance of the offence tinder Section 190(a) of the Code.
12. Complaint Is defined in Section 4(h) of the Code of Criminal Procedure as follows:
(h) "Complaint'1 means 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 o£ a police officer.
13. Therefore, the complaint has to be made to a Magistrate with a view to Ms taking action. The complaint petition, which the Sarpanch forwarded had been made to the Sarpanch with a view to his taking action. But as pointed out above, the Sarpanch forwarded the complaint petition to the Subdivisional Magistrate with his own report for taking cognizance and putting the accused on Mai. Thus, the complaint petition read with the report of the Sarpanch forwarding the complaint with a request to the Sub-divisional Magistrate "to take cognizance and put the accused on trial must be deemed to be a complaint - made to the subdivisional Magistrate with a view to his taking action. Subject to certain exceptions (e.g. Sections 195 to 199 of the Code of Criminal Procedure) any one, who knows about the commission of an offence (and not necessarily the person injured) can make a complaint and he need not have personal knowledge of the facts. A complainant need not be presented in person. A letter to the Magistrate stating facts constituting an offence and requesting him to take action is a complaint. In my view a complaint forwarded by the Sarpanch to the Subdivisional Magistrate along with bis report requesting the Sub-divisional Magistrate to take cognizance and put the accused persons on trial is a complaint made to the Subdivisional Magistrate and therefore, the Subdivisional Magistrate had jurisdiction to take cognizance of the offence on receiving this complaint under Section 190(a) of the Code. Hence, the impugned order of the Subdivisional Magistrate taking cognizance on receiving the report of the Sarpanch forwarding the complaint cannot be said to be without jurisdiction.
14. The matter can be looked at from another point of view. Every complaint made to a Magistrate is an information that an offence has been committed but every such information may not amount to a complaint. Hence the Magistrate may treat the complaint forwarded by the Sarpanch as information for purposes of taking cognizance under Section 190(c) of the Code.
15. In Channu Lal v. Rex. AIR 1049 All 692 : 51 Cri LJ 199 a Division Bench of the Allahabad High Court said):
Information is the genus of which a "complaint" is a specie. In Section 190(1)(c), however, the word 'information' must be construed as referring to information which Is not a valid complaint falling under Clause (a) of that Section. If a complaint is not a valid complaint, it does not cease to be an information and, therefore, can be treated as such under Clause (c) of Section 190(1) and it is open to the Magistrate to whom an invalid complaint is lodged to treat it as an information under Section 190(1)(c) subject, at course, to the limitations imposed by Section 191 of the Code in this behalf.
16. A Full Bench of this Court has held in Bharat Kishore v. Judhistir Modak AIR 1929 Pat 473 : 30 Cri LJ 1056 (FB) that the three alternatives, upon which, a Magistrate may take proceeding under Section 190 of the Code are not mutually exclusive. It is not correct that a Magistrate while taking cognizance of an offence should have done it under some one of the alternatives to the exclusion of the other.
17. The learned Counsel for the petitioners has the apprehension that the learned Magistrate taking cognizance on the report of the Sarpanch is likely to be influenced by the recommendation of the Sarpanch contained in his report and therefore, the learned Magistrate may issue process against the accused persons without satisfying his judicial conscience that there is sufficient ground for proceeding against the accused. The apprehension of the learned Counsel appears to be unfounded. Meaning of cognizance has been discussed in many cases. Taking cognizance does not involve any formal action or action of any kind but it occurs as soon as a Magistrate applies his. mind to the suspected commission of an offence for initiating a judicial proceeding or taking steps to see whether there is any basis for initiating judicial proceeding. Cognizance does not necessarily mean the commencement of proceeding against any one. Cognizance of an offence and prosecution of an offender are quite different things. The Subdivisional Magistrate taking cognizance on the report of the Sarpanch forwarding the complaint petition has to follow the procedure to be followed on receipt of complaint. The Magistrate taking cognizance is bound to examine the complainant on path under Section 200 of the Code. After examining the complainant and his witnesses if present, on oath under Section 200 of the Code he (a) may issue process if he is of opinion, that a prima facie offence has been made out, or (b) may dismiss the complaint under Section 203 or (c) may postpone issue of process pending further Inquiry by himself or some other officer under Section 202 and then take action upon receipt of the report of Inquiring Officer. The Magistrate may also transfer the case under Section 192 of the Code after taking cognizance even without examining the complainant on oath and in that case the transferee Magistrate may examine the complainant on oath and may issue process If he Is of opinion that a prima facie offence has been made out or he may postpone the issue of process pending further inquiry by himself or by some other officer under Section 202 and then take action upon report of the Inquiring Officer or may dismiss the complaint under Section 203.
18. In the instant cases the impugned orders purport to be orders under Section 192 of the Code transferring the case to another Magistrate without examining the complainant on oath. Hence, the impugned orders cannot he said to be illegal or without jurisdiction. In our view the case of Mishri Mandal v. Nageshwar Singh 1975 Pat LJR 205 does not lay down the correct law, -
19. In the result, I do not find any merit in the applications. The three applications are accordingly dismissed.
Uday Sinha, J.
20. I agree.