PANU SAMAL Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision on behalf of three petitioners who have been convicted under Section 379, Indian Penal Code and sentenced to pay fines of Rs. 60 each with two months rigorous imprisonment in default. My Lord the Chief Justice admitted the application because he was assured by counsel that the case fell within Section 190 (viz. Clause (c) of Sub-section 1) of the Criminal Procedure Code and that the accused were never informed of their right under Section 191 to have the case tried by another Court. It appears on an examination of the record, which was not before my Lord the Chief Justice, that the police who investigated the matter after recording the first information submitted the final report "mistake of law as it is a civil dispute," and that upon this the then Sub-divisional Magistrate read the case diary and also a petition by the prosecution and called for a charge- sheet under Section 342 against two of the petitioners and under Section 342 read with Section 114 against the third. The case however actually came up for trial before another Magistrate who succeeded the First Sub-divisional Magistrate.

(2.) The learned advocate for the petitioners has cited Nek Ram V/s. Emperor , in which a learned Judge of the Allahabad High Court held that where a Magistrate, after examining the police diary, came to the conclusion that the police had not properly investigated the case and that a certain person should have been prosecuted, his proper course was to pass an order under Section 190(1)(c), Criminal P.C., ordering his prosecution, and that in that case, the provisions of Section 191 would apply. The facts of that case are however entirely different from the facts of the present case, and it has been repeatedly held in the Calcutta and Patna High Courts that a petition of protest (as it is sometimes called) made to the Magistrate by a person who lodges a first information with the police and who is reported against by them is really a petition of complaint and must be dealt with as such.

(3.) If the petition had been treated as a petition of complaint, the then Sub- divisional Magistrate should have examined the petitioner on oath and could then have directed an investigation under Section 202, Criminal P.C. The latter was, however, rendered unnecessary by the report which the police had already submitted, and the failure of the Sub-divisional Magistrate to examine the complainant is a mere irregularity which cannot affect the venue of the trial. Clause (c) of Sub-section (1) of Sec. 190 only deals with cases where the Magistrate takes cognizance of an offence "upon information received from any person other than a police officer or upon his own knowledge or suspicion."