JALALUDDIN PESHAWARI Vs. EMPEROR

JUDGEMENT

(1.) THIS Rule was issued on the Chief Presidency Magistrate of Calcutta to show cause why the conviction of the petitioner and the sentence pissed upon him should not be set aside on the ground specified as ground (c) in the petition. Ground (c) is in there terms: "For that the whole trial was irregular and invalid inasmuch as the junior officer Mr. R.K. Mukerjee was not legally competent to send up this case to the Magistrate". The petitioner, it appears, has been convicted and sentenced under Section 46 of the Bengal Excise Act, 1909. Clause (a) of Section 83 of the Act lays down that no Magistrate shall take cognizance of an offence referred to in Section 46 except on his own knowledge or suspicion, or on the complaint or report of an Excise Officer or an officer empowered in this behalf by the Local Government. Now, the only complaint or report which we can find in this case is the document marked Exhibit A. The heading is Report of serious case of section E Town on the l0th day of April 1918". The document purports to be signed by R.K. Mukerjee. In the first column the name of Sub- Inspector R.K. Mukerjee appears again as the name of the complainant. It may be that Sub- Inspector R.K. Mukerjee had been authorised by one of his superior officers to make this complaint or report, but we can see no reason for saying that the case was not instituted by the report or complaint made by him or that the Magistrate did not take cognizance of the case on that report or complaint. The Sub Inspector is not an . Excise Officer and the question therefore is whether he was "an officer empowered in this behalf by the Local Government" within .the meaning of Section 83(a). Turning to Chapter X of Volume II of the Excise Manual we find a number of rules or instructions issued by the Board of Revenue. Rule 18 refers to Section 83(a) and states that the officers empowered by the Local Government are Police Officers not below the rank of officers-in-charge of a Police Station. The rule quotes a Government notification which was not placed before us, and there is no reason for supposing that the effect of the notification is not accurately repreduced. There is no definition of officer- in-charge of a Police Station" in the Excise Act but the term ia defined in the Criminal Procedure Code [Section 4(A)]. In the present case in our opinion Sub-Inspector R.K. Mukerjee was an officer below the rank of an officer-in-charge of a Polioe Station. He was a Sub-Inspector attached to the Jorasanko Police Station, but at all material times he appears to have been subordinate to Sub Inspector Masud Hussain who was the officer-in charge of the Station. The mere fact that both officers were Sub Inspectors is not sufficient. Mr. Orr, appearing for the Crown, has urged that this objection to the trial was not taken in the Court below until the evidence had all been recorded. But it was taken at that stage and it was open to the Magistrate then to take additional evidence, if there was any doubt as to a question of fast on which . his jurisdiction depended. He did not take that step. Apparently he had no doubt as to the facts and no suggestion seems to have been, made that the facts were not as we have stated them. He seems to have thought that he had no power to quash the whole proceedings. He had power, however, if it was shown to him that the proceedings had not been legally instituted and that he had no jurisdiction to hear the case, to acquit the accused on that ground. The defect was not a mere irregularity to which Section 537 of the Criminal Procedure Code applies. Apart from anything else, that section presupposes a trial by a Court of competent jurisdiction. Here the Magistrate s proceedings are void under Clause (p) of Section 530. He had tried an offender whom he was not empowered to try. In the circumstances he was debarred by the Act from taking cognizance of the case.

(2.) WE may mention that this is "the second time within a few days in which the authority of a Police Officer to make a complaint or report under Section 83(a) of the Bengal Excise Act has been brought in question before us, and we are of opinion that in such cases the complaint or report should show on its face that it is made by some officer who has the requisite authority. The result is that this Rule is made absolute and the conviction and sentence are set aside on the ground that the Magistrate s proceedings are void. The petitioner will be discharged from his bail-bond.