Mahabir Prasad Agarwala And Another v. The State Opposite Party.

1. This is a petition in revision to quash proceeding under section 411 of the Indian Penal Code pending against the petitioners in the Court of a 1st class Magistrate of Boudh on the ground that the entire proceeding was initiated without jurisdiction.

2. On 14-12-55 one Ramgopal Seth gave a written report at Manmunda police station in Boudh sub-division to the effect that some gold ornaments and cash were stolen from his house. The local police at first recorded merely a station-diary entry but on 16-12-55 they instituted a regular F.I.R and took up the investigation of the case. After completing investigation a Final Report was submitted on 8-2-56 to the effect that though there was some suspicion against the petitioner Mahabir Prasad Agarwala the evidence was insufficient for submitting charge-sheet against him. The final report appears to have been received in the Sub-divisional Magistrate's office on 13-12-56 but there was some delay in its being put up before the Sub-divisional Magistrate. On 18-2-56, however, the informant Ramgopal Seth filed a protest petition before the same Magistrate alleging that police had not investigated the case properly and requesting the Magistrate either to call for charge-sheet or direct a judical enquiry. On this protest petition a Magistrate in-charge (as the S.D.M was not in station) passed the following order

“To C.S.I To put up with F.I.R and case diary on 28-3-56 before the S.D.M”

3. On 28-3-56 all the papers including the cases diary appear to have been placed before the Sub-divisional Magistrate who passed the following order:

“Seen the Final Report, case diary and the protest petition. The case is true under section 457/380 I.P.C Return the properties seized to the person from whom seized.

Sd/- Illegible

S.D.M, Boudh”

4. On 12-4-56, however, the Sub-divisional Magistrate passed the following order in the order-sheet:

“Heard the lawyer for the complainant Ramgopal Seth. Sri L.N Ghose will hold an enquiry and submit a report by 15-5-56.”

5. Sri L.N Ghose held a regular enquiry, examined the informant Ramgopal Seth on solemn affirmation and four other witnesses cited by him and then submitted a report to the Sub-divisional Magistrate dated 5-6-56 to the effect that there was prima facie evidence to prosecute the petitioner Mahabir Prasad Agarawala and his sister Lakshmi for an offence under section 411 I.P.C The Sub-divisional Magistrate then passed the following order on 6-6-56:

“Seen the report of Judicial enquiry. There is a prima facie case against Mahabir Prasad Agarawala and Mst. Lakshmi. The I.O is directed to submit charge-sheet under section 411 I.P.C against Mahabir Prasad Agrawala and Mst. Lakshmi by 21-6-56.”

6. On carefully examining the original of the order-sheet I find that the Sub-divisional Magistrate first wrote-

“Cognizance taken against them under section 411 I.P.C Issue bailable warrant under section”.

7. Then he scored out these words and wrote out—

The I.O is directed to submit charge-sheet under section 411 I.P.C……….”

8. The case was then transferred to the file of one T. Misra, 1st class Magistrate, for trial.

9. On behalf of the petitioners Mr. R.K Das urged that the entire proceeding was without jurisdiction on account of the following illegalities committed by the Sub-divisional Magistrate, Boudh:

(i) After having accepted the Final Report of the police on 28-3-56 the Sub-divisional Magistrate had no jurisdiction to revise his order and call for charge-sheet on 6-6-56;

(ii) The protest petition of the informant dated 18-2-56 should have been treated as a regular complaint and the complainant should have been examined on S.A as required by Section 200 of the Cr PC. The omission of the Sub-divisional Magistrate to so examine him was an illegality in consequence of which the subsequent judicial enquiry under Section 202 of the Cr PC made by Sri L.N Ghose under the orders of the Sub-divisional Magistrate also became illegal;

(iii) In any view of the case, once a protest petition has been filed and a judicial enquiry has been ordered, the Sub-divisional Magistrate had no jurisdiction to call for charge-sheet and if he wanted to proceed with the esse he should have issued process against the petitioners under Section 204 of the Cr PC.

10. It is clear from a scrutiny of the provisions of sections 154 and 200 of the Cr PC that if a person feels aggrieved by the commission of a cognizable offence he may either (1) lodge F.I.R before the police under Section 154 of the Cr PC, or (2) approach the Sub-divisional Magistrate direct and file a complaint under Section 200 of the Cr PC. The choice is left entirely to his discretion at that stage. The police after due investigation may submit a report under Section 173 of the Cr PC which is usually known as ‘charge-sheet’ if a prima facie case is made out against the accused or “Final Report” if no such case is made out. If charge-sheet is submitted the Sub-divisional Magistrate takes cognizance of the same under section 190(1)(b) of the Cr PC.

11. If final Report is submitted the Sub-divisional Magistrate either accepts the same or disagrees with the conclusions of the police and calls for charge-sheet. When charge-sheet is so submitted lie then takes cognizance under section 190(1)(b) of the Cr PC. Whenever final Report is submitted or whenever the informant has reasonable grounds to believe that such a Final Report will be submitted and he wishes to challenge that report the usual practice is for him to file a protest petition before the Sub-divisional Magistrate. Such protest petition may be either anticipatory or it may be filed after submission of the Final Report.

12. In any case, it is now settled by the unanimous decision of all High Courts that such a protest petition is in the nature of a complaint and should be dealt with in accordance with the provisions of Chapter XVI of the Code of Criminal Procedure see Shukadeva Sahay v. Hamid Miyan; AIR 1928 Pat 585 (A), Saidu Khan v. Gaya Prasad, AIR 1941 Pat 144 (B), and Akshoy Kumar v. Jogesh Chandra, 1956 Cri LJ 505 : (AIR 1956 Cal 76) (C). The complaint should be examined on S.A and either process should issue under Section 204 of the Cr PC placing the accused on trial or for adequate reasons a judicial enquiry may be ordered under section 202 and if sufficient ground is not made out the complaint may be dismissed under Section 203 of the Cr PC.

13. Suppose a Final Report is pending before the Sub-divisional Magistrate and he has not yet passed any orders thereon. In the meantime a protest petition is filed and thus a complaint in respect of the same offence is pending before the same Magistrate. If he eventually decides either after a judicial enquiry under Section 202 of the Cr PC or even without holding such an enquiry by merely perusing the case diary and other relevant papers that the accused should be placed on trial, two courses are open to him (i) he may call for charge-sheet from the police and take cognizance under section 190(1)(b) or (ii) he may take cognizance on the complaint under section 190(1)(a) of the Cr PC.

14. Once he takes cognizance under either of the aforesaid two clauses the necessity for taking cognizance under the remaining clause does not arise so long as the offence and the accused in the protest petition and the charge-sheet are identical. Thus if the Magistrate takes cognizance on the basis of the charge-sheet he may say that no further action is necessary on the complaint petition and vice versa. In a Full Bench decision of the Patna High Court reported in Bharat Kishore Lal Singh Deo v. Judhisthir, 10 Pat LT 779 : (AIR 1929 Pat 473) (D), it was pointed out that these two clauses are not mutually exclusive. That is to say merely because a protest petition is pending before the Magistrate and is required by law to be treated by him as a regular complaint, his jurisdiction to take cognizance on the basis of the police charge-sheet under section 190(1)(b) of the Cr PC is not taken away and vice versa. This decision was cited with approval in a Rajasthan case reported in Mukania v. Achalia, AIR 1952 Raj 160 (E), and I am not aware of any dissentient decision of any High Court on this point.

15. Hence, in the present case it may be taken as established that merely because the petitioner filed a protest petition on 18-2-56 and it remained pending, the Sub-divisional Magistrate's jurisdiction to take cognizance on a police report was not taken away.

16. The next question is whether having once accepted the Final Report as correct on 28-3-56 the Sub-divisional Magistrate could revise his view and call for charge-sheet. The question as to whether that order calling for charge-sheet is a judicial act or an administrative act is not free from difficulty and there is some conflict in the decisions of the High Courts. Thus in AIR 1928 Pat 585 (A), it was held that the calling for charge-sheet was a judicial act; whereas in Raghunath Puri v. Emperor, AIR 1932 Pat 72 (F), another Judge of the same High Court observed that it may be either an executive order or a judicial order. In Rama Shankar v. State of U.P, AIR 1956 All 525 (G), it was observed that the calling for charge-sheet by the District Magistrate was an administrative order.

17. This question is, however, somewhat academic because whether it is a judicial order or an administrative order it is always open to a Magistrate who passes the order to revise his opinion on adequate materials. Thus if at one stage he accepts the Final Report and does not wish to proceed with the matter further but subsequently either new facts come to light or after hearing the parties and perusing the papers available he finds that on a previous occasion he had overlooked an important aspect of the case it is open to him to revise his order and call for charge-sheet. This point was emphasised in N.L Carrick… v. Emperor, AIR 1941 Pat 395 (H), where it was observed that on proper materials it was open to a Magistrate to reconsider an order passed by his predecessor accepting the final Report and call for charge-sheet. Doubtless, in that case it was held that there were no adequate materials for reconsideration and hence the Magistrate's order was quashed.

18. But the principle enunciated in that case is applicable in the present case. Hence, I see no illegality in the action of the Sub-divisional Magistrate in calling for charge-sheet on 6-6-56 even though he had accepted the Final Report on 28-3-56. The additional materials available before him on 6-6-56 were the report of the judicial enquiry held by Sri L.N Ghose and the statement on oath of the complainant and his witnesses. If on the basis of these materials he reconsiders his previous order it cannot be said that the order was either illegal or improper.

19. Turning to the protest petition dated 18-2-56, there is undoubtedly a serious omission on the part of the Sub-divisional Magistrate to examine the complainant on solemn affirmation as required by Section 200 of the Cr PC. He sent it to a 3rd class Magistrate for enquiry without such an examination. Doubtless the actual section of the Code under which he directed the enquiry was not mentioned in his order dated 12-4-56. But on the facts, there can be no doubt that it was an enquiry under Section 202 of the Cr PC. That Magistrate examined the complainant on S.A and also his witnesses. Hence the question is whether the omission of the Sub-divisional Magistrate to examine the complainant on S.A is an illegality or a mere irregularity.

20. On this point also there is a sharp conflict in the decisions of the various High Courts. The Calcutta High Court seems to be of the view that such an omission is an illegality which vitiates the subsequent proceedings: see Yakub Sheikh v. The King, AIR 1950 Cal 340 (I), Sushil Kumar v. Banka Mahato, AIR 1957 Cal 393 (J), and 1956 Cri LJ 505 : (AIR 1956 Cal 76) (C). But the Patna view all along has been that it is a mere irregularity see 10 Pat LT 779 : (AIR 1929 Pat 473) (D) and Begam Rai v. The State, AIR 1952 Pat 154 (K). This view has been followed in Orissa also in Api Samal v. Bisi Mallik, AIR 1953 Orissa 83 (L).

21. In a recent Madras decision reported in In re Subramania Achari, (S), AIR 1955 Mad 129 (M), all the conflicting views of the High Courts have been carefully analysed and it was observed that the omission to examine the complainant on solemn affirmation under Section 200 of the Cr PC may prejudice the complainant but it cannot prejudice the accused. The petitioners being accused persons cannot therefore urge that this omission has in any way prejudiced them. On the other hand, the enquiring Magistrate examined the complainant on S.A and his statement was available to the petitioners for the purpose of cross-examining the witnesses. Under these circumstances I see no reason to differ from the settled Patna view which has been followed in Orissa that the omission was a mere irregularity which has not in any way prejudiced the petitioners.

22. It is true that the protest petition has not been finally disposed of by passing an order under Section 204 of the Cr PC. The Magistrate's order dated 6-6-56 has been quoted. Instead of summoning the accused under Section 204 of the Cr PC he directed the I.O to submit charge-sheet and in the charge-sheet so submitted both the accused persons were shown as having been released on bail. The appropriate order for the Magistrate when he directed the police to submit charge-sheet would have been that “in view of this order a formal order under Section 204 of the Cr PC is not necessary on the protest petition.” But the mere omission to pass such an order is a petty irregularity in the present case. As already pointed out his original order was to issue bailable warrant against the accused persons for an offence under section 411 I.P.C

23. But he changed his mind and asked the police to submit charge-sheet. As pointed out in AIR 1932 Pat 72 (F), calling for charge-sheet is nothing else but a mode of issuing process for compelling the attendance of the accused which has come into practical use and is hardly distinguishable from an order under section 204”. Hence, I see no illegality in the entire proceeding merely because the Magistrate did not by an express order dispose of the protest petition in terms of Section 204 of the Cr PC.

24. Some of the important amendments made to the Code of Criminal Procedure by the amending Act of 1955 (Act XXVI of 1955 which came into force on the 1st January 1956) which have a direct bearing on the present case may now be referred to. In Chapter XXIII of the Code dealing with the trial of warrant cases a new section (sec. 251-A) was inserted containing detailed provisions applicable exclusively to the trial of cases instituted on a police report. Old sections 252, 253, 254, 255, 256 and 257 were retained and restricted in their application to cases instituted “otherwise than on a police report”, that is, complaint cases. The whole object of the amendment was to ensure expeditious disposal of police cases so that the accused may either be (i) quickly discharged if there is no case against him or (ii) tried quickly and either acquitted or convicted, as the case may be. For this purpose section 251-A(2) gave a right to the Magistrate to discharge an accused merely after scrutinising the police papers, examining the accused, if necessary, and hearing the parties. On the other hand, in a complaint case a discharge of an accused is not permissible under Section 253(1) of the Cr PC until the evidence of the prosecution witnesses is recorded and the accused is permitted to cross-examine the witnesses before charge.

25. In a police case a charge is framed even before any evidence is recorded and only one adjournment is given for the purpose of cross-examination (sub-sec. (7) of sec. 251-A). Doubtless, in exceptional cases even after the accused has entered on his defence he may be given an opportunity to cross-examine the prosecution witnesses (sub-sec. (9) of sec. 251-(A)). This is similar to Section 257 of the Cr PC applicable to complaint cases. Section 259 of the Cr PC confers discretion on a Magistrate to discharge an accused if the complainant is absent on a date Axed for hearing if the case is instituted on a complaint and if the offence though cognizable is lawfully compoundable. But there is no such provision in Section 251-A of the Cr PC. Thus, the main advantages in procedure available to an accused in a complaint case which are not available to an accused in a police case are as follows:

(i) Right to cross-examine prosecution witnesses before charge and thus to secure a discharge I (sec. 253 of the Cr PC)

(ii) Right to a separate adjournment for the purpose of cross examination after all the prosecution witnesses have been examined (Section 256(1) of the Cr PC).

26. (In a police case, however, there are considerable restrictions on his right to such an ad-journment (sub-sec. (7) of Section 251-A of the Cr PC)

(iii) Right to secure a discharge if the complainant is absent and if the case though cognizable is lawfully compoundable (see Section 259 of the Cr PC).

27. In the present case, the third right does not apply because the offence with which the petitioners are charged is one under section 411 I.P.C which is not compoundable.

28. Mr. Das on behalf of the petitioners, however, urged that the other two rights mentioned above are very valuable rights and the learned Magistrate has deprived the petitioners of those rights by calling for charge-sheet, thus making the case a police case; whereas if he had summoned the petitioners under section 411 I.P.C as he originally intended to do, it would have been a complaint case. I am, however, not satisfied that any material prejudice has been caused to the accused-petitioners by the action of the Magistrate in making this a police case and not a complaint case. It is true that the accused does not get a right to cross-examine witnesses before charge but he gets a special right under sub-section (2) of Section 251-A of the Cr PC to secure a discharge merely on a scrutiny of the case diary and other papers and after hearing the arguments of the parties. Moreover, if he is likely to be prejudiced by being compelled to cross-examine the prosecution witnesses without securing an adjournment the proviso to Sub-section (7) of Section 251-A of the Cr PC confers a limited discretion on the Magistrate to grant him an adjournment. Apart from all these considerations he gets the advantage of a speedy trial which is indeed very valuable. Thus, on a careful examination of all the provisions bearing on the subject I cannot hold that any material prejudice has been caused to the accused-petitioners.

29. The only person who is really aggrieved by the action of the Magistrate is the complainant if the case had been treated as a complaint case and it had eventually ended in acquittal, the new amendment to Section 417 of the Cr PC confers on the complainant a right to approach the High Court directly for grant of leave against acquittal (sub-section (3) of section 417). On the other hand, by treating it as a police case the Magistrate has deprived him of this right and his only remedy if the case ends in acquittal is to request the Government to file an appeal under sub-section (1) of section 417. The complainant has not, however, made a grievance of this action of the Magistrate. It is primarily the right of the aggrieved person either to make his complaint before a Magistrate or to lodge information before the police and thus to choose the appropriate forum for initiation of criminal proceedings. Even in his protest petition he made two alternative prayers to the Magistrate, namely, either to call for charge-sheet or to direct a judicial enquiry. Thus, when the complainant has chosen to make this a police case notwithstanding some procedural disadvantages the accused persons cannot make a grievance of the action of the Magistrate in not making this a complaint case. Hence, I am not satisfied that any serious prejudice has been caused to the petitioners so as to call for interference by this Court in revision.

30. On merits also I see no reason for interference at this stage.

31. There was an elaborate judicial enquiry in which after examining five witnesses including the complainant the Magistrate reported that a prima facie case under section 411 I.P.C was made out against the petitioners. It will be premature to quash the proceeding now.

32. I would, therefore, dismiss the revision petition.

V.S.B

33. Revision dismissed.