LAXMI NARAIN Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against an order of a Magistrate of the First Glass ordering that proceedings under Section 107, Criminal P.C., that have been initiated against the applicant, be conducted by the police On 30 July 1931, one Manni Lal filed a petition before the learned Magistrate alleging that the applicant, along with certain other persons, was likely to commit a breach of the peace or disturb the public tran-quilifcy, and prayed that the persons named in the petition be bound down under Section 107, Criminal P.C. The learned Magistrate sent the petition to the police for inquiry and report. The police submitted a report on 7th October 1931, recommending that the applicant and the other persons named in the petition be bound down.

(2.) The Magistrate then issued a notice under Section 112, Criminal P.C. and directed the Sub-Inspector, who had submitted the report above referred to, to bring all the evidence and produce the same in Court on 24 February 1932. On that date an application was filed on behalf of the applicant requesting the learned Magistrate to prevent the police from prosecuting the case. The learned Magistrate rejected the application. Against the order of the learned Magistrate the applicant went in revision to the learned District Magistrate. The learned District Magistrate holding that the case has become a Crown one and the Grown has to attend to the important work of prosecuting it dismissed the application in revision. Now the applicant has come to this Court. The learned Counsel, for the applicant contends that as the petition of Manni Lal was not a complaint as defined by Section 4(1)(h), Criminal P.C. the learned Magistrate had no jurisdiction to proceed under Section 202 of the Code and send the same for inquiry to the police and, accordingly, the police had no locus standi to prosecute the case and to lead evidence against the applicant. In support of this contention he relies on a decision of the Lahore High Court, reported as Hari Singh V/s. Jagta A.I.R. 1928 Lah. 694. In that case an application under Section 107, Criminal P.C. was presented by a man named Hari Singh and the Magistrate after recording his statement, sent the case to the local Zaildar for report. The Zaildar reported that there was no sufficient ground for proceeding under Section 107 and dismissed the application. The learned District Magistrate being of opinion that a Magistrate before whom an information contemplated by Sec. 107, Criminal P.C. is laid may either at once refuse to proceed" or, if in his opinion, there is sufficient ground for proceeding, may act in the manner provided for by Oh. 8 of the Code and that it is not open to him to refer to a Zaildar or anyone else before deciding whether to proceed, made a reference to the High Court recommending that the order of the Magistrate dismissing the petition be set aside. The High Court held that as a proceeding under Section 107 of the Code cannot be regarded as a complaint within the meaning of Clause (h), Sub-section (1). Section 4 of the Code, the Magistrate had no jurisdiction to deal with the case under Secs.202 and 203 of the Code and, accordingly, quashed the order of the Magistrate dismissing the petition and directed him to try the case in accordance with law.

(3.) If it was intended to lay down in that case that it is not open to a Magistrate, before whom a petition is filed requesting him to take action under Section 107 of the Code, to send the same for inquiry and report to the police, I with all respect, am unable to agree with that decision. Such a petition is no doubt not a complaint and therefore it is manifest that the procedure prescribed by Secs.202 and 203 of the Code, which are confined in their operation to complainants as defined by the Code, has no application to such a petition. It follows therefore that a Magistrate is not competent to proceed under Secs.202 and 203 when de-cling with such a petition, but I can discover no justification for holding that he cannot, independently of those sections, refer the matter to the police for inquiry and report. It is to be noted that Section 107, Criminal P.C. is in part 4 of the Code which is headed "Prevention of Offences." The Magistrate is responsible for the maintenance of peace in the district. This, responsibility is cast on him in his administrative and not in his judicial capacity. He is the sole authority to decide whether or not it is imperative for maintenance of peace to set the law in motion by initiating proceedings under Section 107 or other preventive sections in Ch. 8 of the Cede. His discretion in this respect is absolute and unqualified. Accordingly his discretion to initiate proceedings under Section 107 or other preventive sections in Ch. 8 of the Code has not been trammelled by such conditions the fulfilment of which is a condition precedent to the issue of a process to a person to answer a charge formulated against him in a complaint. Complaints are for the redress of wrongs already committed, and from the moment a Magistrate takes cognizance of a complaint he acts judicially and therefore is bound to proceed in accordance with law, and in coming to a decision one way or the other to take cognizance only of such matters that constitute legal evidence in the case. But in acting under Secs.107, 108 and 109 or Section 110 of the Code the Magistrate does not, so long as he does not record an order in writing in accordance with Section 112 of the Cede calling upon any person to show cause, it judicially. In those sections complete discretion is given to the Magistrate either to act or not to act on the information received by him. The discretion to issue a notice under Section 112 in pursuance of an information received by him is absolute and uncontrolled by any conditions whatsoever. It is nowhere provided that the information contemplated by those sections must be information gathered from legal evidence, nor is there any provision as to the source from which the information may be received.