EMPEROR Vs. ALFRED EDMOND

JUDGEMENT

(1.) 1. One Alfred filed a criminal complaint Under Section 323, Penal Code, against Beniprasad, Sub-Inspector of Police. The Magistrate, before whom it was filed, rejected it on the ground that the notice required by Section 42, Police Act, 1861, had not been given. The Sessions Judge, Nagpur, has reported the case Under Section 438, Criminal P.C., recommending that this order should be set aside. Alfred's brother Bonu had been challaned by the Sub-Inspector of Police, Beniprasad Under Section 325, Penal Code. Alfred attended the hearing on 10th December 1933 when the Magistrate, after recording the evidence of some of the prosecution witnesses, adjourned, accompanied by Mr. Gokhale, Pleader for Bonu and Sub Inspector, Beniprasad, to the Mayo Hospital to take the state, ment of the complainant in that case. As he was leaving the Court, Alfred asked one of the witnesses whether he had given false or true evidence, and the witness is said to have complained to the Sub-Inspector, Beniprasad who thereupon struck Alfred. This alleged assault on Alfred was the basis of Alfred's complaint Under Section 323, Penal Code. Section 42, Police Act, provides that: All actions and prosecutions against any person which may be lawfully brought for anything; done or intended to be done under the provisions of this Act, or under the general police powers hereby given shall be commenced within three months after the act complained of shall have been committed, and not otherwise; and, notice in writing of such action and of the cause thereof shall be given to the defendant, or to-the District Superintendent or an Assistant District Superintendent of the Distrct in which the act was committed, one month at least, before the commencement of the action.

(2.) THE questions is whether the provision that "notice in writing of such action" must be given applies to criminal prosecutions. 'Action' in Stroud's Judicial Dictionary, Edn. 2, is defined as meaning: a litigation in a civil Court for the recovery of individual right or redress of individual wrong,

(3.) 'Defendant' is defined as "the person sued in an action or indicted for a misdemeanour." It therefore appears that though defendant might include an accused person, action ordinarily means a civil suit and does not include a criminal prosecution. In Queen v. Hazar Mir Khan (1878) 7 N W P H C R 237, on which the learned Government Advocate has relied, the Judge remarked that the notice to be given Under Section 42 is probably intended to give the party accused time to prepare his defence or compromise the case. There is however no discussion of Section 42, the precise meaning of which was not before the Court in that case, and I do not think that that decision is authority for the view that "notice in writing of such action" includes notice of a criminal prosecution.