BHAIRAB CHANDRA BARUA Vs. EMPEROR

JUDGEMENT

(1.) I agree in the conclusion, arrived at by my learned, brother.

(2.) We recently had occasion, in Harihar Roy v. Emperor Harihar Roy v. Emveror (Criminal Revision No. 988 of 1918, 22 Nov., 1918. Richardson and Shams-ul-Huda JJ. This is a Rule upon the District Magistrate of Jalpaiguri to show cause why the criminal proceedings pending against the petitioner under Section 384 of the Penal Code in the Court of the Deputy Magistrate of Jalpaiguri should not be quashed, or in the alternative why the case should not be transferred to some other district for trial. The petitioner is a police-officer. In June, 1918, the Superintendent of Police, Jalpaiguri, by a letter addressed to the Deputy Commissioner made certain charges of extortion against the petitioner who had been suspended. The letter, on receipt in the Deputy Commissioner s office appears, to have been placed before Mr. A. Majid, Deputy Magistrate, who issued a warrant for the petitioner s arrest, and there by instituted the proceedings against the petitioner to which the Rule relates. Mr. Majid is specially empowered to take cognizance of offences under Section 190, Sub-section (1), Clauses (a) and (b) of the Criminal Procedure Code. The first point taken on the petitioner s behalf is that the Superintendent s letter is not a police report within the meaning of Clause (b) and that Mr. Majid erred in taking cognizance of the case, as it appears that he did, under that clause. An offence under Section 384 of the Penal Code is a "non-cognizable" offence, and it is agreed on the authority of the decision of a Full Bench of the Bombay High Court in King- Emperor v. Sada (1887) I.L.R. 14 Clac. 707, that the expression "police report" in Clause (b) of Section 190 (1) of the Criminal Procedure Code does not include a report made by a police-officer of his own motion in a non-cognizable case. If that be so, what follows? In the definition of "comprint" in Section 4(1)(h) of the Code it is stated that the term does not include "the report of a police-officer." If the expression "police report" is to have a restricted meaning, then as the case cited itself shows, the meaning of the expression "report of a police officer" must be similarly restricted, so as to bring a report made by a police officer of his own motion in a non-cognizable case within the definition of complaint." Otherwise such a report as the police Superintendent s letter in the present case would be neither a "complaint" nor a "police report" nor could it be dealt with under Section 190(1) (c) as "information received from any person other than a police-officer. That could not have been intended by the framers of the Code. It is sufficient, therefore, for the purposes of the present case to say that if the Police Superintendent s letter was not a "police report," it was a complaint and the Deputy Magistrate is empowered to take cognizance of offence, upon complaint under Section 190(7)(a). It is said that the Deputy Magistrate did not examine the Superintendent on oath under the provisions of Section 200 of the Criminal Procedure Code. But even on the assumption that the. Superintendent s letter was a complaint the mere fact that he was not examined on oath would not in our opinion vitiate the proceedings or render them proceedings taken without jurisdiction. Under Section 529, Clause (e) of the Code if a Magistrate not empowered by law to take cognizance of an offence under Section 190, Sub- section (1) Clause (a) or Clause (b) docs so erroneously but in good faith, his proceedings are not to be set aside merely on that ground. That being expressly laid down if a Magistrate duly empowered takes cognizance of an offence upon complaint, but omits to examine the complainant on oath, the omission can hardly be more than an irregularity which does not affect the Magistrate s jurisdiction to try the offender. This is the second time that the petitioner has moved the Court to intervene in the proceedings against him. On the last occasion this question of jurisdiction was not raised or mentioned. Moreover, the Police Superintendent s letter was based on information received by him and his examination-on-oath would have been a mere formality. To sum up if the Superintendent s letter was a "police report," no question even of irregularity arises. If it was a "complaint" the petitioner has no substantial grievance. We are accordingly unable to accept the contentions now put forward as disclosing any sufficient reason for quashing; the proceedings. There remains the alternative prayer for the transfer of the case to some other Court for trial. The petitioner, though he is under suspension, is a police-officer. As a police-officer he is subject to the disciplinary rules of his department and the lawful authority of the officers to whom he is subordinate. He complains that disciplinary orders to which he is bound to render obedience hamper him in the conduct of his defence. Now it is entirely beyond our province to interfere with the discipline of the force or the exercise by the superior officers of police of their lawful powers. We have no doubt that the observations made on the 23rd August, 1918, by the learned Judges who were then dealing with criminal matters have borne fruit and that the Superintendent of Police has honestly attempted to remove any cause of complaint on the petitioner s part that he was being harshly or inconsiderably treated. On the other hand we are bound to satisfy ourselves that the conditions under which the petitioner is being tried do not impede him in his defence, and for that purpose we must look at the matter not only from the point of view of the superior officers but also from the point of view of the petitioner. The principal order governing the petitioner s movements appears to be an order of the 5th September, 1918, quoted in the explanation submitted by the Deputy Commissioner. By that order the Superintendent directs that the petitioner is to be allowed facilities for instructing his legal adviser or taking such other steps as may be necessary for the conduct of his offence at any time on application made to me." We are quite prepared to believe that no exception can be taken to the spirit in which that order was meant to be carried out. The order nevertheless seems to involve this that the petitioner has to apply to the Superintendent from time to time for such facilities as he requires. The Superintendent way be quite willing to grant the facilities, but there may be at any rate some delay before the petitioner s applications are received or dealt with by him. The result has been to engender in the petitioner s mind a feeling that his movements are unduly restricted, and on the materials before us we cannot characterize his state of mind as entirely unreasonable. While, therefore, we make no reflection on the conduct of the superior police-officers and while no one questions the impartiality of the Deputy Magistrate before whom the case is now pending, we are of opinion that a transfer of the case is desirable, and we direct accordingly that the case be transferred for trial to the Court of such competent Magistrate at Siliguri as the Deputy Commissioner of Darjeeling may appoint, to consider the question whether the report of a police-officer disclosing the commission of a non-cognizable offence was a police report" within the meaning of Section 190(1)(b) of the Criminal Procedure Code, or a " complaint " within the meaning of Section 4(1)(h). The conclusion at which we then arrived was that it must be the one or the other. That being so, the Magistrate in the present case had jurisdiction to take cognizance of the non- cognizable offence disclosed in the report submitted by the investigating police- officer, the offence, namely, of making a false charge punishable under Section 211 of the Penal Code.

(3.) If the question were free from authority, I should for my part be disposed to say that the report of a police-officer in a non-cognizable case is a "police report" for the purposes of Section 190(1)(b) of the Criminal Procedure Code. In that case the Magistrate had clearly power to issue process against the petitioner as he has done. But if that view be not correct, and the report in question, was a complaint, then the only error which the Magistrate committed was in not examining the complainant, that is the police officer, on oath before issuing process. In the case I have referred to [Harihar Roy v. Emperor (1918) See Footnote, p. 810.], we held that such an omission was an irregularity only, and that it did. not go to the jurisdiction of the Magistrate. That being so, there is no reason why merely on this ground we should interfere in the exercise of our Revisional Jurisdiction and direct that the case be commenced de novo.