SK OSMAN GANI Vs. BARAMDEO SINGH

JUDGEMENT

(1.) To the maintainability of this appeal on behalf of the complainant, Sk. Osman Gani, from an order of acquittal of the respondents Mr. Banerjee on behalf of the respondents has taken a preliminary objection on the two-fold ground, first, that it is not a case instituted upon a complaint so as to attract the provisions of Section 417 (3) of the Code Criminal Procedure and secondly that when the order of acquittal which is sought to be challenged in this appeal was passed the complainant had no right of appeal and the fact that by subsequent legislation a right of appeal was conferred on the complainant from an order of acquittal would not accrue to the benefit of the complainant so as to entitle him to file an appeal after this legislation came into force.

(2.) The facts which are necessary to be stated for disposing of this two-fold objection of Mr. Banerjee are briefly as follows : On 2-2-1953 the complainant filed a petition of complaint against the respondents and others before the Suburban Police Magistrate, Alipore. The Magistrate did not examine the complainant on oath on receipt of the complaint but on that date he ordered the petition to be put up on the 3rd as it was too late. On the 3rd of February, he passed the following order : "Perused petition. To O. C. Watgunge P. S. for taking cognizance in the matter if materials be forthcoming." Then on 19th February, he made the following order; "Seen police report according to which there are materials for taking up cognizance. The police ,to take up cognizance as per order dated 3-2-53.. The police submitted a charge-sheet against the respondents who were alleged to be on police bail. They were convicted on 11-4-1955. On appeal they were, however, acquitted on 25-11-1955 by an additional Sessions Judge. This appeal is directed against this order of acquittal.

(3.) Mr. Banerjee's contention on the first point is that although the complainant first moved the court with a petition of complaint the complainant was not examined on oath and the Magistrate did not take cognizance of the offence or offences alleged in that complaint but what he did was to refer the matter to the police for investigation after taking cognizance and the Magistrate later took cognizance on the police report so that it ceased to be a case instituted on a petition of complaint. It is necessary to examine this contention somewhat closely. The expression "any case instituted upon complaint" used in Section 417 (3) of the Code of Criminal Procedure means either of two things. It may mean a case in which the first step taken to move the Magistrate is a petition of complaint whether or not cognizance is taken upon it or it may mean a case in which not merely a petition of complaint is filed but the Magistrate takes cognizance upon it. The question is which of these two meanings can be ascribed to the expression as used an Section 417 (3) of the Code. For a correct decision of the point it is necessary to look into the use of similar expressions in the Code and to the whole scheme of the Code of Criminal Procedure as far as the cognizance of offence or offences is concerned. Before doing so, I may at once point out that the self-same expression "any case instituted upon complaint" is used in Section 250 (1) of the Code of Criminal Procedure and Section 249 of the Code uses the expression "any case instituted otherwise than upon complaint" so that when Section 417 (3) was introduced by the latest amendment of the Code of Criminal Procedure, it was not really using a new expression at all but it was using an expression which was already in the Code in Section 250 (1). In part VI of the Code which deals with proceedings in prosecutions there are altogether 16 chapters from Chapter XV to Chapter XXX. Of these chapters we are concerned primarily with Chapters XV. XVI and XVII to start with. Chapter XV again is divided into two parts, A and B. The first part commencing from Section 177 and ending with Section 189 deals with the place of inquiry or trial and with that we are not concerned. Part B beginning from Section 190 and ending with Section 199-B deals with conditions requisite for initiation of proceedings. Then Section 190 lays down how cognizance of offences can be taken by certain Magistrates and in this the basis of cognizance has been stated to be three-fold, namely firstly upon receiving a complaint of facts which constitute such offence; secondly upon a report in writing of such facts made by any police officer and thirdly upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. It is thus obvious that if the third item be left out because that is upon information received by a Magistrate from any person other than a Police officer or upon the Magistrate's own knowledge or suspicion there are two distinct modes in which a Magistrate is entitled to take cognizance of offences. The first of these modes is on receipt of a complaint and the second is on receipt of a police report. Then Section 200 in Chapter XVI lays down that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. This as subject to certain provisos, one of which is that when the complaint is made in writing nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring "the case" under Section 192. The expression 'the case' should be marked here. In Chapter XV although Section 190 (1) speaks of taking cognizance of an offence Section 192(1) and (2) speaks of taking cognizance of cases. Then Chapter XVII deals with inquiry into cases triable by the court of Sessions or High Court and here under the latest amendment two distinct types of procedure are laid down for two classes of cases. Section 207 lays down that in any proceeding instituted on a police report the Magistrate holding the inquiry has to follow the procedure specified in Section 207-A and in any other proceeding he has to follow the procedure specified in the other provisions of this Chapter and then Section 207-A speaks of any proceeding instituted on police report. Section 208 deals with any proceeding instituted otherwise than on a police report. From an examination of these sections it seems to be fairly obvious that the Code all along even before the amendment distinguished between two classes of proceedings or cases, one instituted on complaint and the other instituted on Police report and under the amendment the distinction has become still more pronounced. The question now is whether in a case such as the present when the complainant came to court with a petition of complaint but the Magistrate did not take cognizance on that complaint but referred it to the police and then on receipt of a report from the police he took cognizance, it can be held that the case was one instituted on a complaint within the meaning of the expression in Section 417 (3) of the Code of Criminal Procedure. I am inclined to take the view that it cannot, for the simple reason that the Code all along has been using this expression to mean a class of cases in which proceedings are initiated on the complaint itself and proceedings can be initiated only after cognizance has been taken as is quite clear from an examination of Section 190 itself. The expressions 'proceeding' and 'cases' in the different sections already noticed appear to me to have been used in the same sense. A case is a cause before the court and there is no cause before the court until the court initiates proceedings on the basis of it. As soon as the proceedings are initiated there is a cause before the court so that the expression "any case instituted upon complaint" must, in my opinion, mean only that class of cases where not merely the complainant comes to court with a petition of complaint but the Magistrate takes cognizance of the offence or of fences alleged on the basis of that complaint. In this connection I may refer to a judgment of Debabrata Mookerjee, J., in Parul Bala v. The State, where in considering the meaning of the word 'case' used in Section 553 (1) of the Code his Lordship says that it is only when a report, that is a report under Section 173 of the Code of Criminal Procedure, is made out and the Magistrate takes cognizance of the offence, that a case is brought into existence and it is only then that the case can be heard by the Magistrate within the meaning of Section 553 of the Code. Although he was trying to explain the expression 'the case' used in Section 553 (1) of the Code of Criminal Procedure a similar meaning must be attributed to the expression "case instituted upon complaint" used in Section 417 (3) of the Code. We accordingly uphold this objection of Mr. Banerjee to the maintainability of the appeal.