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Aditya Narain Rai v. Ramasis Rai And Others

Patna High Court

Apr 28, 1964

Judgment

Subsequent
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Factual and Procedural Background

The complainant (the appellant before this Court) appealed against an order dated 13 August 1962 by the First Class Magistrate, Dinapore, which acquitted twenty respondents under Section 251-A(11) of the Code of Criminal Procedure (CrPC). The dispute concerned a house on plot No. 410, khata No. 50, in village Lodipur Chandwari. The property history in evidence was that the house had been recorded in the khatian in the possession of Mangar Gope (deceased), then came into possession of his widow Faguni and of Tileshwari (widow of Pran), and a gift deed (27 May 1947) conveyed the house to Ganga Prasad. A sale deed executed on 30 January 1960 conveyed the house from Ganga Prasad (and others) to the appellant, who claimed possession thereafter.

On 28 October 1960 an Assistant Sub-Inspector submitted a report to the Sub-divisional Officer for action under Sections 144 and 107 CrPC against six persons; the appellant was identified as the second party. The Sub-divisional Officer decided the Section 144 proceeding in favour of the appellant on 12 December 1960. The appellant alleges that on that date respondents and another man (not tried) appeared in a mob, forcibly entered the house, assaulted the appellant, removed his movable property, and the appellant filed a complaint on 13 December 1960.

The Sub-divisional Officer examined the appellant on solemn affirmation and, by order dated 13 December 1960, directed that the matter be sent to the Officer-in-Charge of Dinapore Police Station for institution of a case and immediate necessary action. An FIR was registered on 14 December 1960 and investigation followed. A charge-sheet was submitted and received by the Sub-divisional Officer on 5 January 1961; cognizance was taken and the matter was committed for disposal. The case proceeded initially under the police-case procedure (Chapter XVIII, Sec. 207-A) but, finding the evidence insufficient for committal to the Sessions Court, the Magistrate tried the accused under Chapter XXI following Section 251-A procedure and ultimately acquitted them. The defence was denial of the occurrence.

Legal Issues Presented

Whether an appeal to this Court under Section 417(3) CrPC is maintainable by the complainant where the Magistrate recorded an acquittal under Section 251-A(11) and the record shows both a complaint examined on solemn affirmation and subsequent police proceedings — i.e., was the case instituted on a complaint or on a police report?
On the merits, whether the occurrence as alleged by the complainant (forcible dispossession, assault and removal of movables) took place and, relatedly, the question of possession of the disputed house.

Arguments of the Parties

Appellant's Arguments

The appellant relied on the decision of the Supreme Court in Jamuna Singh v. Bhadai Shah (1964 BLJR 47 : AIR 1964 SC 1541) to contend that because he had been examined on solemn affirmation by the Magistrate, cognizance was taken on the complaint and the later involvement of the police amounted, in substance, to an order under Section 202 (i.e., an enquiry/investigation). On that basis the case should be treated as one instituted on complaint and the appellant had the right to apply for special leave under Section 417(3) CrPC.

Respondents' Arguments

The respondents raised a technical objection that no appeal lay under Section 417(3) because the order of acquittal was recorded in a case instituted upon a police report (the prosecution case proceeded as a police case), and thus the complainant had no right to special leave under that provision.
They distinguished Jamuna Singh on the ground that, in the instant case, there was an order of amalgamation dated 2 February 1961 which, they argued, merged the complaint proceedings with the earlier police case; they relied on a Bench decision of the Patna High Court in Harbans Singh v. Daroga Singh (referred to in the opinion) to support the submission that such amalgamation caused the complaint case to lose its separate identity.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jamuna Singh v. Bhadai Shah, 1964 BLJR 47 : AIR 1964 SC 1541	Holds that when a Magistrate takes cognizance upon receiving a complaint and examines the complainant on solemn affirmation (Sec. 200), the case is one instituted on complaint; if thereafter the Magistrate refers the matter to the police, that act is, in substance, an order under Sec. 202 for enquiry/investigation, and a later police report does not convert the case into one originally instituted on a police report.	The Court held that Jamuna Singh governs the instant case: the order directing the police to take immediate action was, in substance, equivalent to directing an investigation; therefore the matter retained the character of a complaint case and the appellant's right to appeal under Sec. 417(3) could not be defeated by subsequent police procedure.
Harbans Singh v. Daroga Singh, AIR 1932 Pat 27 (as cited in the opinion)	The Bench decision addressed the legal effect of an order of amalgamation where a complaint (or protest treated as complaint) merged with an existing police case: where there was no Magistrate's order indicating enquiry/investigation under Sec. 202, amalgamation caused the complaint case to lose its separate identity and merge into the police case.	The Court distinguished Harbans Singh on the facts: in Harbans Singh there was no Magistrate's order directing enquiry under Sec. 202 and merger therefore caused loss of identity of the complaint case; in the instant case the earlier order (examining complainant and directing police action) amounted to a Sec. 202-type direction, so the complaint case did not lose its identity despite a subsequent order of amalgamation. Consequently Harbans Singh did not govern the present matter.

Court's Reasoning and Analysis

The Court first addressed the technical objection to maintainability of the appeal under Section 417(3) CrPC. It undertook a comparative analysis of the facts of the instant case with the controlling precedent in Jamuna Singh and with the Bench decision in Harbans Singh.

The Court set out the principle from Jamuna Singh that (i) when a Magistrate takes cognizance on a complaint and examines the complainant on solemn affirmation under Section 200, the case is instituted on a complaint; and (ii) referring the matter to the police thereafter effectively operates as an order for enquiry or investigation under Section 202, so that a subsequent police report does not alter the character of the case from one instituted on complaint to one instituted on a police report.

The respondents had relied on an order dated 2 February 1961 which amalgamated records, contending (by reference to Harbans Singh) that this caused the complaint case to lose its identity and to merge with the police case. The Court examined the facts of Harbans Singh: there the protest petition was treated as a complaint but there had been an earlier FIR and police investigation; crucially, there was no Magistrate's order indicating any enquiry or investigation under Section 202. When amalgamation was later ordered, the complaint lost separate existence and merged into the police case — hence an appeal by the complainant was not maintainable in that situation.

Applying those principles to the present facts, the Court found that in this case the Sub-divisional Officer had examined the complainant on solemn affirmation and, by his order of 13 December 1960, had directed that the matter be sent to the Officer-in-Charge "for institution of a case and immediate necessary action." The Court treated that direction, following Jamuna Singh, as amounting in substance to an order for enquiry/investigation under Section 202. Thus, even though an order of amalgamation was subsequently recorded on 2 February 1961, the complaint retained its character as a complaint case; the subsequent police-origin procedure could at most be irregular but could not deprive the matter of its character as a complaint case.

On that basis the Court overruled the respondents' technical objection and held that the appellant had the right to apply for special leave under Section 417(3). The Court then proceeded to consider the merits: although the Court differed from the Magistrate on the question of possession (finding in favour of the appellant on possession), it agreed with the Magistrate's conclusion that the alleged occurrence (forcible dispossession, assault and removal of movables as alleged by the complainant) did not take place as stated in the complaint. The opinion records an express admonition that, in view of the Court's finding on possession, the respondents would be advised to seek civil redress for their claimed title rather than take the law into their own hands; the Court also observed that if disturbances recur the Magistracy could initiate proceedings under Sections 107 or 145 CrPC as appropriate.

Holding and Implications

DISPOSED OF: Appeal dismissed.

Direct effect on the parties:

The magistrate's order of acquittal is upheld by this Court (the appeal fails and is dismissed).
On possession, the Court found in favour of the appellant (the complainant) but agreed with the magistrate that the alleged criminal occurrence did not take place as pleaded; the Court advised respondents to pursue civil remedies for any title or possession claims.
The Court indicated that if respondents create disturbance again, the Magistracy may initiate proceedings under Section 107 or Section 145 CrPC or otherwise act as it deems fit to protect public order and decide possession questions in an appropriate forum.

Broader legal implication:

The Court applied and followed the Supreme Court's reasoning in Jamuna Singh regarding the legal effect of magistrates' orders examining complainants and referring matters to police (treating such directions as equivalent to orders under Sec. 202), and distinguished a prior Bench decision (Harbans Singh) on its facts where no such magistrate order existed. The opinion therefore clarifies that the presence of a magistrate's direction for police action, made after examining a complainant on solemn affirmation, preserves the character of complaint proceedings even if subsequent police procedure follows.

FH/MVJ/D.V.C

Show all summary ...

1. This is an appeal by the complainant on grant of special leave by this Court under Section 417(3) of the Cr PC (hereinafter referred to as the Code) from the order dated the 13th August, 1962, of Shri C.N Tiwary, Magistrate 1st Class, Dinapore, acquitting all the twenty respondents under Sec. 251-A(11) of the Coda. The prosecution case, in brief, is that there is a house on a piece of land bearing plot No. 410, khata No. 50, in village Lodipur Chandwari, Police station Dinapore. In the khatian, according to the evidence of the appellant (P.W 5), the house was recorded in possession of one Mangar Gope. Pran Gope was his brother. The former died issueless, leaving behind Mt. Faguni as his widow. Pran had pre-deceased Mangar, leaving behind his widow Mt. Tileshwari and his daughter Sundri Devi. Gins and Ganga are sons of Sundri. On the 27th May, 1947, Mt. Faguni and Mt. Tileshwari executed a registered deed of gift in favour of Ganga Prasad in respect of the house in question. On the 30th January, 1960, a sale deed was executed by Ganga Prasad his brother Girja Prasad, and their mother Mt. Sundri, in favour of the appellant conveying the house to him. According to his case, Mangar Gope was in possession of the said house. Thereafter Faguni and Tileshwari were in its possession and Ganga came in possession after the property was gifted to him in the year 1947 and the appellant claims to be in possession after his purchase from Ganga and others in the year 1960.

2. On the 28th October, 1960, Assistant Sub-inspector (P.W 8) submitted a report to the Sub-divisional Officer, Dinapore, for action under Ss. 144 and 107 of the Code against six persons, who were described as the first party in the proceeding under Sec. 144 of Code and in which proceeding the appellant was shown as the second party. The proceeding under Sec. 144 of the Code was ultimately decided in favour of the appellant by the Sub-divisional Officer on the 12th December, 1960. Thereafter the case of the appellant is that at 5 P.M on that very date he went to the house in question and unlocked the room which had been locked up by the police before the start of the proceeding with a view to obviate the apprehension of the breach of the peace. Then the respondents and one more man named Basant, who was not traced and put on trial, appeared at the house in a mob variously armed, started breaking the locks, asked the appellant to get out of the house, threatened him with death or assault, assaulted him with fists and slaps, broke open the locks of the rooms, removed moveables belonging to the appellant and took them to their houses. A list of stolen properties was given in the complaint petition. With these allegations in brief the appellant filed a complaint petition before the Sub-divisional Officer, Dinapore, on the 13th December, 1960.

3. The learned Sub-divisional Officer examined the appellant on solemn affirmation, as his order dated the 13th December, 1960, shows, and thereafter he passed the following order on that date:—

“………Send this to O/C Dinapore P.S today for institution of a case and immediate necessary action. The O/C should visit the spot today and take such necessary action as is enjoined upon him by law.”

4. Upon receipt of a copy of the complaint petition, first information report was drawn up by the Inspector of Police (P.W 10) on the 14th December, 1960, and investigation was started by him on that very date. After investigation the police submitted a charge sheet, which was received by the Sub-divisional Officer on the 5th January, 1961 (vide order sheet at page 119 of the paper book) upon which the passed the following order:—

“C.S received No. 70/60 under section 147/448/380 I.P.C received, against the accused persons noted in column 3 of C.S Coznizance taken. To Shri A.P Sinha, Judicial Magistrate 1st Class for disposal.”

5. It will appear from the order sheet of the case, cognizance of which was taken on the 5th January, 1951, upon police report, that the case proceeded for enquiry under Chapter XVIII of the Code as a police case under Sec. 207-A as contained in that Chapter, but ultimately when it was found that the evidence was not such as would justify the committal of the case to the Court of Session, the learned Magistrate tried the case under Chapter XXI in accordance with the procedure laid down in Sec. 251-A of the Code. Ultimately, as stated above, he recorded the order of acquittal. The defence was a denial of the occurrence.

6. Before I proceed to deal with the case on merits, I have to deal with the technical objection raised on behalf of the respondents and which objection has presented some difficulty before me, to the effect that no appeal fay to this Court under Sec. 417(3) of the Code, inasmush as, the case, in which the order of acquittal has been recorded by the learned Magistrate, was not a case instituted upon complaint by the appellant. It was a case instituted upon police report, proceeded to trial as such and the order of acquittal was recorded under Sub-sec. (11) of Sec. 251-A of the Code. In reply to this technical objection reliance was placed on behalf of the appellant upon a recent decision of the Supreme Court in Jamuna Singh v. Bhadai Shah, 1964 BLJR 47 : (AIR 1964 SC 1541). This case was distinguished on behalf of the respondents with reference to the order dated the 2nd February, 1961, recorded in suit No. 395 of 1960 by the learned Sub-divisional Magistrate in the case, cognizance of which was taken by him on the 13th December, 1960, on filing of the complaint petition and on examination of the som-plainant on solemn affirmation.

7. That order dated the 2nd February, 1961, reads thus:—

“Let this be amalgamated with 6. R. case recorded with regard to this (illeg.) matter.”

8. After referring to this order of amalgamation, reliance was placed on behalf of the respondents upon a Bench decision of this Court in Harbans Singh v. Daroga Singh, AIR 1932 Pat 27, to which I was a party, and it was submitted that the instant case is covered by the principle of law decided by the Bench decision of this Court and the decision of the Supreme Court cannot apply to and is distinguishable from the facts of the case in hand.

9. In my opinion, it is just the other way about. On a careful examination of the facts of the instant case and the principles of law decided by the Bench of this Court in Harbans Singh's case, AIR 1962 Pat 27 and the Supreme Court in Jamuna Singh's case, 1964 BLJR 47 : (AIR 1964 SC 1541), I am of the view that the case decided by the Supreme Court will govern the case in hand and the Bench decision of this Court is distinguishable. My reasons are these:

10. In Jamuna Singh's case, 1964 BLJR 47 : (AIR 1964 SC 1541) decided by the Supreme Court, it has been said by Das Gupta, J. at page 49:

“…….when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's Court on a police report”

11. In Jamuna Singh's case, 1964 BLJR 47 : (AIR 1964 SC 1541) when a complaint was filed by the complainant, he was examined on solemn affirmation by the Magistrate under Sec. 200 of the Code and then the Magistrate stated in the order sheet that the offence was a cognizable one and he directed the Sub-Inspector of Police “for instituting a case and report by 12-12-56”. It was held by the Supreme Court that as soon as the complainant was examined on solemn affirmation, cognizance of the case was taken within the meaning of Sec. 200 of the Code and thereafter referring the case to the police was in substance directing the police officer to make an enquiry or investigation within the meaning of Sec. 202 of the Code, although the expression used in the order sheet was “instituting a case”. In that view of the matter, it was held that even though a cognizance of the case was purported to have been taken second time upon a police report, the case would be deemed to have been instituted upon a complaint and the complainant had a right to apply for special leave to appeal to the High Court under Sec. 417(3) of the Code. The minor point of distinction, which was attempted to be made on behalf of the respondents with reference to the words in the order of the Magistrate of the Supreme Court case that the police was asked to report therein and in the instant case the police was asked to take immediate necessary action, in my opinion, has no substance, in substance it meant the same thing.

12. But the point of distinction, which created soma difficulty in my way, is that whereas in the case before the Supreme Court there is nothing to indicate that there was any order of amalgamation made amalgamating the complaint case with the police case, if I may use those expressions, in the instant case there is such an order dated the 2nd February, 1961, which I have quoted above, and in that view of the matter, it was submitted with reference to the Bench decision of this Court in Harbans Singh's case, AIR 1962 Pat 27 that the present case is governed by the principle decided in that case. I have, therefore, to examine very briefly the facts of Harbans Singh's case, AIR 1962 Pat 27. Appellant Harbans Singh first lodged a first information report at the police station on the 12th January, 1956. While the investigation by the police was going on, he filed a protest petition before the Sub-divisional Officer who treated it as a complaint and examined him on solemn affirmation on the 10th February, 1956, (on which date the protest petition was filed). A case was started upon the basis of the complaint, but instead of referring the matter to the police for enquiry or investigation or for institution of a case or in any other language, the Sub-divisional Officer, after examining the complainant on the 10th February, 1956, ordered the matter to be put up with the connected case record on the 14th February, 1956.

13. As it appears, the complaint was not a direct complaint to the Magistrate but a protest petition was treated as a complaint, which must have disclosed that the first information report had already been lodged with the police and the police investigation was going on. After sometime charge-sheet was submitted by the police on or about the 18th May, 1956, and on that basis the learned Magistrate took cognizance of the case upon the police report. Subsequently, the case started on treating the protest petition of Harbans Singh as a complaint was amalgamated with the case started upon the submission of the charge sheet by the police. In view of this it was held by this Court:—

“The effect of the order of amalgamation, therefore, Is that the complaint case was merged with the police case…………In other words, the complaint case lost its identity and separate existence as it merged with the police case which retained its identity.”

14. In that view of the matter, it was held that an appeal at the instance of the complainant to this Court was not maintainable. The point of distinction, which has to be noted between Harbans Singh's case, AIR 1962 Pat 27 and the instant one, is that while in the former there was no order by the Magistrate indicating any enquiry or investigation by the police, in the latter since the complaint was filed first, the order directing the police to institute a case has the effect of directing it to investigate it as held by the Supreme Court in Jamuna Singh's case, 1964 BLJR 47 : (AIR 1964 SC 1541) and that being the charge sheet submitted by the police, as held by the Supreme Court, will be treated as a report by the police to the Magistrate, as if it was a report on an enquiry or investigation under Sec. 202 of the Code. Even though thereafter the procedure prescribed in Sec. 251-A was followed as if it was a case instituted upon police report, the procedure can be held to be merely irregular and cannot rob the case of its character of a complaint case.

15. As I have said above, there was no order in Harbans Singh's case, AIR 1962 Pat 27 by the Magistrate which, be any stretch could be taken to be an order directing an enquiry or investigation under Sec. 202 of the Code and in that view of the matter if the complaint case was later on amalgamated with the police case, which had been started upon the submission of charge-sheet by the police with reference to the first information report lodged earlier, than the filing of the complaint, it can be held and was so held that the complaint case lost its identity and; merged in the police case, if, on the other hand, the investigation by the police and submission of charge sheet by the police has got to be taken in effect and substance to be in pursuance of the order by the Magistrate under Sec. 202 of the Code, it is obvious that the complaint case never lost its identity, even though the order at amalgamation was passed on the 2nd February, 1961. I, therefore, hold that the technical objection raised on behalf of the respondents must be overruled.

16. (Thereafter his Lordship, after examining the merits, concluded that although he differed from the finding of the magistrate against the appellant on the question of possession he agreed with him in the finding that the occurrence did not take place as alleged and then stated.) Before I part with this case, I would like to observe that in view of my finding on the question of possession in favour of the appellant, the respondents would be well advised to seek redress of their grievance, if any, as is their claim or title over the disputed house in the civil court and not to commit any offence by going upon the land. But since this finding has been given in case which was mainly concerned with the finding as to whether an occurrence of the kind as alleged by the complainant had taken place or not, it may well be that they would be ill-advised in the matter and to create disturbance again, in that event it is needless to say that the Magistracy will be well advised either to start a proceeding under Sec. 107 of the Code against the respondents or such of them as may be creating any disturbance or if they so think fit and proper, to start a proceeding under Sec. 145 of the Code and to decide once for all the question of possession so far as the criminal courts is concerned. In the result, the appeal fails and is dismissed.