RADHA KISHUN SAO Vs. SKMISRA

JUDGEMENT

(1.) This application is directed against an order of the learned Sub-divisional Magistrate of Dinapore, dated 20-11-1947, by which the learned Sub-divisional Magistrate has directed a fresh enquiry by himself into a complaint preferred by the petitioner against two persons, Mr. S.K. Misra, Assistant District Supply Officer of Dinapore and his peon. To appreciate the points urged before me, it is necessary to state some relevant facts. On 17-10-1947, the petitioner filed a complaint against the aforesaid two per-sons alleging that they had committed the offences of assault criminal trespass, etc., against the petitioner, his son and certain other persons; The petitioner was examined on oath by the learned Sub- divisional Magistrate on 17-10-1947, and the learned Sub-divisional Magistrate then directed an enquiry into the complaint by Mr. P. Sarkar, a Magistrate exercising first class powers at Dina. Pore. Presumably, the enquiry was directed under the provisions of Section 202, Criminal P.C. Mr. Sarkar directed the issue of notices and held a local enquiry on 25-10-1947. He examined several witnesses, and on 5-11-1947, he submitted a report in favour of the issue of process. On 15- 11-1947, the learned Sub-divisional Magistrate recorded an order to the, effect that the report which had been handed over to him by his predecessor in office was in his confidential file. On 17-11-1947, the learned Sub-divisional Officer perused the report and then passed an order directing the submission of the record to the District Magistrate for obtaining the sanction of Government for the prosecution of the accused persons.: The learned Sub-divisional Magistrate, apparently thought that sanction might be necessary under the provisions of Section 197;, Criminal P. C The record then went to the learned District Magistrate who by his order dated 19-11-1917, held that, no sanction was necessary. After having" said that no sanction was necessary, the learned District Magistrate went to make certain observations which, in my opinion, were uncalled for. The observations were to the following effect: It is true that a person complained against has no locus standi till cognizance is taken of the complaint against him and processes are ordered to be issued and the enquiring officer cannot enforce his attendance; but, at the same time, it is only proper that he should be given an opportunity to have his say before he is actually put on trial, especially when an enquiry has been ordered to be held. I do not see how even a prima facie case could be said to "have been established till the person complained against is given an opportunity to give his version of the incident. When the learned Sub-divisional Magistrate received back the record with the aforesaid observations of the learned District Magistrate, he passed an order on 20-11-1947, to the effect: Received record from the District Magistrate Patna. Protest petition filed by A.D.S.C. I shall hold fresh enquiry on the spot at Paliganj on 6-12- 1947, at 10 A.M. Inform both parties to be present on the spot on the date and time fixed. This is the order against which the present application is primarily directed.

(2.) The point which has been urged before me on behalf of the petitioner is that the order of the learned Sub-divisional Magistrate to the effect that he will hold a fresh enquiry is in violation of the provisions of Section 202, Criminal P.C. and, therefore, irregular. It is contended that Section 202, Criminal P.C., talks of two alternatives: one alternative is that the Sub-divisional Magistrate may enquire intothe case himself; the other alternative is that the learned Sub-divisional Magistrate may direct an enquiry or investigation to be made by any Magistrate Subordinate to him or by a police officer or by such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint. Having availed himself of the second alternative, it was irregular for the Sub-divisional Magistrate to direct that a fresh enquiry will be held by himself at the spot. learned Counsel for the opposite party has contended before me that the terms in which Section 202, Criminal P.C., is couched do not warrant the view that an enquiry by the learned Sub-divisional Magistrate himself will be without jurisdiction, and that if the learned Magistrate felt that a second enquiry was necessary for ascertaining the truth or falsehood of the complaint, it was open to him to order a second enquiry. I do not think it is necessary, at least in the present case, to go to the length of saying that a second enquiry by the learned Sub-divisional Magistrate himself would be without jurisdiction. All that need be said in this case is that in the circumstances of this case, it would be irregular to hold a second enquiry. I shall explain why I consider that a second enquiry in the circumstances of this case will be in violation of the provisions of Section 202, Criminal P.C. and, therefore, irregular. I have already stated that Mr. Sarkar held an enquiry at the spot and examined several witnesses including some who spoke in support of the petition of complaint and others who did not support the petition of complaint. Mr. Sarkar gave reasons for holding that a prima facie case had been made out, and that the accused persons should be put on trial. This report was considered by the learned Sub-divisional Magistrate on 17-11-1947. The learned Sub-divisional Magistrate did not then think that the report of the enquiring Magistrate was defective in any way. Apparently he was satisfied with the report and thought that the only bar to taking cognizance was Section 197, Criminal P.C. He then sent the record to the District Magistrate for obtaining sanction under the provisions of Section 197, Criminal P.C. It is a little difficult to understand why the learned Sub- divisional Magistrate thought that the record should be sent to the District Magistrate for obtaining sanction under Section 197, Criminal P.C. Such a procedure is not warranted by law, and I can find no explanation for such a procedure except on the ground of lack of experience of the learned Magistrate. If the learned Magistrate thought that Section 197, Criminal P.C. was a bar to taking cognizance, the proper procedure would have been to dismiss the petition of complaint on that ground. Whether sanction was or was not necessary was a matter which had to be judicially determined by the learned Magistrate, and the burden of deciding that matter could not be shifted to the learned District Magistrate. I may here observe that it would still be open to the accused persons when they appear to plead that Section 197, Criminal P.C., is a bar, and if such a plea is raised, it would then be necessary for the Magistrate to decide it. I do not, therefore, wish to say anything more on that question at this stage. It is still more surprising to me why the learned District Magistrate went out of his way to make the observations which I have quoted above, when he was, of the opinion that no sanction under Rule 197, Criminal P.C. was necessary in this case. It was not the duty of the learned District Magistrate to decide whether a prima facie case had or had not been made out. That was a matter which was for the decision of the learned Sub-divisional Magistrate. I am also far from satisfied that the learned District Magistrate has properly understood what is meant by the expression "prima facie case". Here was a case in which a Magistrate had held an enquiry at the spot and had examined several witnesses who supported the allegations made in the petition of complaint. The evidence of those witnesses makes out a prima facie case, and I do not understand what the learned District Magistrate means when he says that no prima facie case can be said to have been made out till the person complained against is given an opportunity to give his version of the incident. This Court has laid down in several decisions that the accused has no right to be heard at the stage when the complaint is under consideration. Whether a prima facie case has or has not been made out does not depend on whether the accused has been heard or not: it depends on the kind of evidence which is given by the complainant in support of his petition of complaint. The learned Sub- divisional Magistrate probably thought that he was bound by the observations made by the learned District Magistrate, and, therefore, made an order to the effect that he himself would enquire into the petition of com-plaint. The learned Sub-divisional Magistrate forgot, however, that under the provisions of Section 202, Criminal P.C, two alternatives were open to him. One of the alternatives was to hold the enquiry himself, and the other was to send the case for enquiry by some other Magistrate subordinate to him. The second alternative had already been adopted in this case, and the learned Sub-divisional Magistrate had before him the report of the enquiring Magistrate. Unless that report showed some defect, I do not understand why the learned Sub-divisional Magistrate thought it necessary to hold a fresh enquiry himself learned Counsel for the petitioner has placed before me two decisions where, in similar circumstances, the holding of a second enquiry has been held to be irregular: Emperor V/s. Durga Prasad A.I.R 1922 ALL. 211 and Tyab Ali Yusuf Ali V/s. Husain Ali Yusuf Ali . In the Allahabad case the learned Magistrate having partially enquired into case directed a local investigation. It was held that under Section 202, Criminal P.C. the learned Magistrate had the option of only two alternatives, namely, either to enquire into the case himself, or direct a previous local investigation. It was further observed that assuming that that was a fit case for local investigation, there was nothing in Section 202 which empowered the learned Magistrate to have recourse to both the alternatives. The facts of the Nagpur case are more similar to the case under my consideration. In the Nagpur case a complaint was made which was sent to a second class Magistrate for enquiry. That Magistrate after a careful and detailed enquiry submitted a report to the Magistrate in favour of the issue of process. The Magistrate instead of issuing process or dismissing the complaint under Section 208, Criminal P.C., proceeded to make a further enquiry himself. It was meld that the further enquiry held -by the learned Magistrate was irregular. For the same reason, I am of the view that the further enquiry directed to beheld in this case by the learned Magistrate is irregular, and is in violation of the terms of Section 202, Criminal P.C.

(3.) learned Counsel for the opposite party has drawn my attention to a petition filed by the Assistant District Supply Officer on 20-11-1947. The petition is not on stamped paper, nor is it of the kind which is usually filed in a Court of justice. The petition is couched in language which is hardly appropriate for a Court of Justice. One of the statements in the petition is to the following effect: A bird; whispered to me that he (the previous S.D.O. called Mr. Sarkar. in. the evening of 2nd November, and, directed him, to report against me. I am afraid Mr. Sarkar is too weak to stand his treat. Apart, however, from this, the grievance made by the Assistant District Supply Officer was that the enquiry by Mr. Sarkar had been held behind his back. The Assistant District Supply Officer. wanted a searching confidential enquiry which would, according to him, reveal the truth. Learned counsel for the opposite party has drawn my attention to the decisions of this Court in Bam Saran Singh V/s. Mahommad Jan Khan A.I.R. 1926 pat. 34 and Mahabir Baitha V/s. The King Emperor A.I.R. 1931 Pat. 302. In both those cases it was observed that it was undesirable that the enquiry under Section 202, Criminal P.C. should be converted into a full-dress trial. The practice" bi automatically issuing notice ort the accused, and the practice of allowing the accused person to cross- examine the witnesses for the complainant were condemned. Certain "Observations, however, were made in those which show that if the Magistrate in order to make an enquiry complete allows the accused to appear arid hears his statement, such a procedure is riot illegal. It. was also observed that it might be desirable to hear the accused particularly in a case where the accused is a public servant holding a responsible position. In the case before me the accused stated that he was not present when Mr. Sarker held his enquiry, though the report of Mr Sarkar shows that witnesses of both sides were examined. I do not wish to say anything at this stage which may prejudice either party at the trial; nor is it necessary for me to say anything on the merits of the allegations made against the Assistant District Supply Officer and his peon All that I need say is that the absence of the accused persons at the time when Mr. Sarkar held the enquiry cannot be accepted as a good ground for directing a fresh enquiry by the learned Sub-divisional Magistrate himself in violation of the provisions of Section 202, Criminal P.C. Assuming that the accused person makes certain statements in his defence, I do not see how the learned Sub-divisional Magistrate can hold that the witnesses who support the petition of complaint should be disbelieved, unless the learned Sub-divisional Magistrate is prepared to convert his enquiry into a full-dress trial. If the accused person is not to be permitted to cross-examine the witnesses who support the petition of complaint, their evidence cannot be thrown out merely on the statements of the accused. Their evidence can be thrown out only if the enquiry is converted into a trial; but that is a practice which has been condemned by this Court on "more than one occasion.