GANGA PROSAD SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is a rule calling upon the District Magistrate of Birbhum to show cause why the conviction of the petitioner under Section 211, I. P. C, should not; be set aside. The rule was issued on grounds 1 and 5 attached to the petition. The petitioner is a constable. He was entrusted with the execution of two warrants which had been issued against two witnesses in a certain criminal case. He failed to execute the warrants. He appeared at the thana and gave an information to the effect that five persons had rescued one of these men and committed an offence under Section 225B, I. P.C. There was an investigation. No charge-sheet was submitted as the police came to the conclusion that the case was a doubtful one. The Magistrate did not pursue the matter any further and discharged the accused persons. One of those accused persons then instituted the present case under Section 211 against the petitioner. The first ground raises the question of the jurisdiction of the Magistrate to take cognizance of the case at all. The contention made by Mr. Mukherji in support of the rule is that a complaint was necessary under Section 476, Criminal P.C. In order to determine the question we shall have to consider the meaning to be attached to tie words "when such offence is alleged to have been committed in relation to any proceeding in any Court." It may be noted that the information given by the petitioner if false amounted to offences both under Secs.182 and 211, I. P.C.

(2.) It will be necessary for us to consider this point with regard to both the proceedings started by the petitioner and the proceedings in course of which the warrants were issued. I shall deal with the former first. There has been some difference of judicial opinion on this point. There can be no question that the information given by the petitioner led to proceedings of some sort before the Magistrate. In fact that result was bound to happen. For instance, the information was the foundation of a certain case which was entered as No. 314 of 1939 in the general register. In the course of those proceedings, the Magistrate passed orders for bail and finally an order of discharge. It was of course open to him to call for a charge sheet. On the other hand, at the time the offence was committed undoubtedly there was no case pending at all. It is not necessary for us now to express our own opinion on this matter. So far as this Court is concerned that point is concluded against the petitioner. I need only refer to two cases, Haibat Khan V/s. Emperor ( 06) 33 Cal 30 and Tayabulla V/s. Emperor ( 17) 4 AIR 1917 Cal 593. We are bound to follow those decisions unless we are prepared to refer the matter to a Full Bench.

(3.) In our opinion, however, the present matter can be disposed of in connexion with the other case. Warrants for arrest had been issued by the Magistrate who was actually trying that case. Those warrants were made over to the petitioner for execution. It was as an explanation of his failure to make any arrest that he gave the information in the thana. If that case had not been on the Magistrate's file, it would have been quite impossible for the petitioner to commit this particular offence. He actually committed lit in a transaction which arose out of the (execution of those warrants. In these circumstances it seems impossible for us to say that the offence was not committed in relation to those proceedings. In this view it is not necessary to consider the second ground which really raises a question whether the appeal ought to be re-heard. We accordingly make the rule absolute. The conviction and sentence are set aside and the petitioner is discharged from his bail.. It will of course be open to the Magistrate concerned to take any proceedings if he thinks it desirable to do so. Sen, J.