S VIJAYARAGHAVACHARIAR Vs. EMPEROR

JUDGEMENT

(1.) This is an application for quashing the proceedings now pending before the Stationery Sub-Magistrate, Dharmapuri. In order to understand the contention of the petitioners, it is necessary to mention a few facts. The Sub-Divisional Magistrate, of Dharmapuri was informed by a mother and daughter of the commission of serious offences. He sent the daughter to the Medical Officer and on the 24 November he took a sworn statement from the mother and from the daughter. He forwarded the complaint of the daughter to the Sub-Magistrate, Dharmapuri, on the 24th, as he thought that an offence or offences triable exclusively by a Court of Sessions were disclosed in the sworn statement. He took the mother's case on his file and issued bailable warrants to the accused. The Sub-Divisional Magistrate who happened to go to Salem on some business mentioned to the District Magistrate and the District Superintendent of Police about the complaint made to him by the mother and the daughter. The District Superintendent of Police directed his subordinate, the Assistant Superintendent of Police, to enquire into the matter and, if a case was made out;, to file a charge-sheet before the Sub-Divisional Magistrate of Dharmapuri charging the accused under Secs.330 and 345, I.P.C. The Sub-Magistrate, Dharmapuri has got three cases on his file one by the daughter transferred to him by the Sub-Divisional Magistrate, Dharmapuri, the other by the mother which was also transferred to him and the third, the case which was started on the charge-sheet of the police.

(2.) The contention of Mr. Ethiraj for the petitioners is that the police had no power to charge- sheet a case which had been taken cognizance of by a Magistrate and in which process had been issued by him. In order to appreciate this contention, it is necessary to sea whether the Sub-Divisional Magistrate did or did not issue process in both the cases. As regards the case of the daughter he did not issue process as is clear from the report which was read out by the learned Public Prosecutor. On the transfer of the case to the Sub-Magistrate under Section 192, he passed the following order; Taken on P.R. file. Post to 16 December 1927. Issue process to complainant, accused and prosecution witnesses; summon Medical Officer, Dharmapuri as witness.

(3.) It does not appear that any processes were issued by the Sub-Magistrate Dharmapuri, to the accused or to the witnesses. Though he simply ordered process to issue there is nothing on record to show that any process was actually issued. That being so, the question is whether the Magistrate had power to order enquiry under Section 203. The contention is that the Magistrate having made up his mind to issue process to the accused his power under Section 202 is taken away. I am unable to accept this contention. Section 202 contemplates that the Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been transferred to him may, if he thinks fit, for reasons too be recorded in writing, postpone the issue of process and ask the police to make an enquiry. The mere fact that he ordered issue of process does not take away from him the power to direct the police to enquire into the case. In the daughter's case the police made an enquiry hot at the instance of the Sub-Magistrate but at the instance of the District Superintendent of Police, who, on information received from the Sub-Divisional Magistrate, directed his subordinates to make an enquiry. That being so, it cannot be said to be an enquiry made under Section 202 and so the order for issue of process is not of any consequence. But Mr. Ethiraj argued that there was no information upon which the police could act and the only information they had was the order under Section 156 (3) made by the Sub-Divisional Magistrate, Dharmapuri and that order having been made after he issued process was without jurisdiction. No doubt it the Sub- Divisional Magistrate had asked the police to make the enquiry under Section 156 (3) after he had issued process his order would be without jurisdiction and the police enquiry started under such an order would be illegal. It was held in Arula Kotiah V/s. Emperor [1911] 2 M.W.N. 74, that after a Magistrate had issued process, he had no power to refer it to the police under Section 156 (3). But as I said in the daughter's case, it was not the Sub-Divisional Magistrate, Dharmapuri, who ordered the enquiry and he could not have ordered an enquiry under Section 156 (3) because the case was not on his file.