DEDAR BUKSH Vs. SYAMAPADA DAS MALAKAR

JUDGEMENT

(1.) This is a reference made to this Court by the Sessions Judge of Hooghly. The facts which have led to the present reference are these: One Syamapada Das Malakar complained to the Magistrate against four persons, namely, the Hon ble Moulvi Mazaharal Anwar, his wife and his two daughters, under Sections 342 and 363 of the Indian Penal Code. His complaint was that his eleven-years old wife, named Sidheswari Dassi, was missing from the middle of the month of Assar, that is to say, the latter end of June or beginning of July 1913, that she returned on the 13th September 1913 and told him that, while she was near the house of Moulvi Mazaharal Anwar, he made a sign to her, took her to his house, made her a Mahomedan, and further made her eat food forbidden to a Hindu, and kept her confined in the house. On the filing of this complaint the Magistrate passed the following order "The charge is a serious one and is against a highly respectable inhabitant of this town. The complainant has got back his wife who is said to be only 11 years of age. Complainant, will prove his case on the 30th instant."

(2.) On the 17th September, long before the date fixed for the inquiry, the complainant made a petition for the withdrawal of the case saying that he had come to know on inquiry that his wife had made untrue statements through fear, that he would not be able to prove the truth of the complaint, that the accused were innocent, and that he did not want to prosecute the case which should be dismissed. This application was ordered to be put up on the date fixed which was the 30th September. On the 30th September 1913, the following order was passed--"The complainant is present. He applied before, saying he was unwilling to proceed with the case. This is a serious charge. The witnesses must be examined. Summon them and fix the case for the 3rd October next." On the 20th November 1913 the following order was passed by the Magistrate. "Read police papers and the evidence. The real complainant in this case is the girl herself, named Sidheswari Dassi. From her statement and the statement of other witnesses it appears that there is no satisfactory evidence against the persons complained against. There is, however, evidence against one Dedar Buksh, who is said to have made the girl a Mahomedan, and another woman, a maid servant named Bason. These two persons, Dedar Buksh and Bason, will be summoned under Section 342 of the Indian Penal Code and Section 363 of the Indian Penal Code and Section 352 of the Indian Penal Code. Fix the case for the 2nd December next." It is this order that has been referred to us for revision. The question is whether the Magistrate took cognizance of the case under Section 190 Clause (1)(a) or under Clause (1)(c) of that section. If he took cognizance of the case under Clause (1)(c) of the section, he should have proceeded to observe the formalities provided in Section 191 of the Criminal Procedure Code. If he took cognizance under Clause (7)(a) the Magistrate had jurisdiction to try Dedar Buksh and Bason against whom he issued processes. The Magistrate in question, we may observe, is not empowered by the Local Government to take cognizance under Clause (c) of Section 190 of the Criminal Procedure Code. The original complaint was, no doubt, not against Dedar Buksh and Bason Bibi. But the Magistrate had already taken cognizance of the offence mentioned in the complaint. From the evidence before him he came to the conclusion that there was not satisfactory evidence against the four persons mentioned in the complaint, but there was evidence against Dedar Buksh and Bason Bibi of offences under Sections 342, 352 and 363 of the Indian Penal Code. The offences under the two former sections are compoundable, while the offence under the last is not compoundable. The complaint was of very serious offences. And this complaint was soon followed by a petition of withdrawal by the complainant and not by the girl against whom the offences were said to have been committed. We are of opinion that the Magistrate was right in ordering examination of witnesses in order to ascertain if there was any substance in the petition of withdrawal and in the complaint.

(3.) Now, the next question is whether the Magistrate could take cognizance of the offence against Dedar Buksh and Bason Bibi which came to light in the evidence given by the witnesses. The Magistrate in his explanation has relied on the case of Charu Chandra Das v. Nagendra Krishna Chakravarti (1900) 4 C.W.N. 367. The learned Sessions Judge, however, in his letter tries to distinguish the facts of this reported case from those of the present case by pointing out thai the reported case was on a police report of which the Magistrate had full seisin, and that there was no repudiation of the complaint in that case. The present case, however, is on a written complaint by the husband of the girl Sidheswari. The expression "complaint" has been defined in Clause (h) Sub-section (1) of Section 4 of the Criminal Procedure Code. It is clear from the definition that it is not necessary that the complainant should always be the party directly aggrieved by the commission of the offence. The really aggrieved party is the complainant s wife. But according to the definition the husband is a competent person to apply to the Magistrate with a view to his taking action under the Code.