Emperor v. Vishwanath Krishna Sathe

1. One Vishvanath K. Sathe, wished to enter into dealings with the firm of Bahiravdas Laxmandas, cloth-merchants in Guladgud, a village of Bijapur district. As Sathe was not known to the firm they demanded cash payments for all purchases. Bathe's next step was to send two registered envelopes insured for and purporting to contain in currency notes Rs. 21,000. They were addressed to Sathe ??? the firm of Bahiravdas Laxmandas, Galadgud. When the envelopes arrived there, Sathe, who in the meantime had gone to Guladgud himself, wished to accept delivery of them but the Postal authorities required a surety that Sathe was the genuine addressee Laxmandas, who was the agent of the firm of Bahiravdas to whose care the latters were sent, undertook to go surety on condition that the letters were handed over to him. This was done and then Laxmandas wished to open them but Sathe wanted them unopened. This led to a further dispute and they both came to Poona that Sathe might satisfy Laxmandas of his identity. Sithe seemed not to have done so and Laxmandas in a petition reciting the facts handed over the packets to the City Magistrate, who in the belief that an offence had, been committed, sent the matter for enquiry to the Chief Constable. The latter took Sathe's statement in which he said that the packages contained, or rather had contained when he despatched them, 20 currency notes of Rs. 1,000 and two of Rs. 500. The Chief Constable also examined the Sadashiv Peth, Postmaster, who proved that the packets had not been tampered with and then returned the papers to the City Magistrate expressing the opinion that Sathe had sent the registered packets with the intention of ultimately cheating the firm of Bahiravdas. The Magistrate then sent for Sathe, examined him on solemn affirmation and obtained from him the statement that what he had told the Chief Constable was true. Thereupon the Magistrate believing that Sathe had lied called a Panch, handed to them the two packets of which they opened two and found them to contain only blank slips of paper. It was on these facts that the Magistrate Mr Carvalho sent the papers to the First Class Magistrate, Mr, Jagade, that Sathe might be tried for an offence under s. 193 of the Indian Penal Code committed in Mr. Carvalho's Court.

2. This order was passed apparently under s. 476 of the Criminal Procedure Code, 1898.

3. The Sessions Judge of Poona, (Mr. C.A Kincaid,) being of opinion that the procedure adopted by the Magistrate was illegal, referred the case to the High, Court, stating:

Although it seems probable that Sathe's intention was to cheat the firm of Bahiravdas and still more probable that Sathe lied to Mr. Carvalho, yet the latter's order cannot, in my opinion, stand. Mr, Carvalho has sent Sathe to be tried for a perjury committed in the former's Court i.e, in the course of a judicial proceeding. But the said judicial proceeding was an enquiry whether Sathe had committed an offence of cheating or of a similar nature in his dealings with the firm of Bahiravdas. In other words Sathe was an accused person and the Magistrate had no authority to administer to him an oath.

4. The oath therefore was wrongly administered and the applicant when making his statement to Mr. Carvalho was not legally bound by oath. I rely on the following passage in Abdul Majid v. Krishna Lal Nag (I.L.R 20 Cal. p. 728):

“It is held that this statement before the District Judge and the allegations made in the affidavits were false and upon those grounds the District Judge has sanctioned the prosecution of the applicant under ss. 193 and 199. Now we find no provision in the bengal tenancy act authorising a District Judge to make any such enquiry or to order the applicant to deliver up any such papers and we further find no provision in that Act or any other law authorising the District Judge to examine the applicant on oath in such proceedings. We do not think, therefore, that the applicant can be said to have been legally bound by oath when he was examined before the District Judge. Therefore the facts alleged do not disclose that he committed any offence under section 193, Indian Penal Code.”

5. Indeed it is somewhat doubtful in my judgment whether the learned Magistrate was empowered by law to send the matter to the Chief Constable for enquiry. I have assumed in the first instance that the learned Magistrate was acting under clause (c) of s. 190, for on the face of it the petition of the Agent of the firm of Bahiravdas dated 17th January 1903 was not really a complaint at all but a request to the Magistrate to take charge of the registered envelopes because Sathe had disappeared. It is true that there is a paragraph at the end which asks for enquiry. But the important point is that there is no request that the Magistrate should take action under the Criminal Procedure Code which, as section 4 (h) lays down is one of the essentials of a complaint. And if there was no complaint before the Magistrate he was not empowered by law to send the matter for enquiry to the Police.

6. Section 202 runs as follows;

“If……….any Magistrate of the First or Second Class is not satisfied as to the truth of a complaint of an offence of which he is authorised to take cognizance, he may, when the com plainant has been examined, record his reasons, and may………either enquire into the case himself or direct a previous local investigation to be made by any officer subordinate to such. Magistrate or by Police Officer.”

7. Here, the learned Magistrate had no complaint before him nor did he examine the complainant—both of which are conditions precedent to the delegation of the enquiry. As the matter was sent without jurisdiction to the Chief Constable the whole enquiry before him would seem to be null and void. This however is only a technical irregularity. The main point in the proceeding, as it seems to me, is that whether the Magistrate was proceeding tinder secrion 190 or under section 202 he was enquiring into an offence of which Sathe was accused. And as Sathe was an accused person he was not legally bound by oath and therefore could not be guilty of perjury. I am therefore of opinion that the learned Magistrate's order was erroneous. I have been asked to set aside if the order was made under section 176 Criminal Procedure Code, and as such can only be revised by the High Court. For this view I rely on the recent case of Queen-Empress v. Ankanna (I.L.R 23 Mad. 205), where the following passage occurs:—

“It is not quite clear whether the Deputy Magistrate intended to pass an order under section 476, Criminal Procedure Code, or to make a complaint under section 195(1)(b). In either case the Sessions Judge had no power to interfere.”

8. Mr. B.V Vidwans, for the accused Sathe.— Laxmandas (complainant) in his application merely stated that Sathe had not turned up and prayed that the Magistrate should take charge of the packets from him (Laxman-das) and dispose of them as the Magistrate deemed fit. This application made no suggestion of any offence; it was not a complaint, and the Magistrate had, therefore, no jurisdiction to send the case to the Police for inquiry and report. See sections 4 (h) and 202 of the Criminal Procedure Code. His duty was to find out Sathe and hand over the packets to him. However the Police went to Sathe at his house, took down his statement, and then went to the Post Master of the Sadashiv Peth Branch from which the packets were s?nt and made a report to the Magistrate stating that Sathe had apparently attempted to cheat the firm of Bchiravdas and that they had ordered him to appear before the Magistrate. Sathe accordingly appeared before the Magistrate. The Magistrate questioned him on oath whether his statement before the Police was correct, and asked him to make an affidavit. I submit under these circumstances that the Magistrate after having the police report before him in which Sathe was accused of the offence of cheating, had no jurisdiction to administer an oath to him. In any event as the Magistrate had no doubt as to Saths's identity, his duty was to hand over the packets to him. Instead of doing this the Magistrate called a Paneh and opened two of the packets. In doing so he again acted without jurisdiction.

9. Even if it be assumed that before the Magistrate, Sathe was not the accused, and that the Magistrate was deliberating before fastening his suspicions upon him, than surely he was only seeking information from Sathe. And in that view too, of the case, he had no jurisdiction to examine him on oath. I rely on Hari Charan Singh v. Queen-Empress (1).

10. The High Court has power to intefere with an order passed by a Magistrate under section 476: See In re Bal Gangadhar Tilak (2); In re Jivabhai (3); Suryznarayan Row v. Emperor (4).

11. Mr. N.M Samarth (for Laxman Balkrishnadas, original petitioner before the Magistrate).— The order which the Magistrate, Mr. Carvalho, has passed under s. 476 of the Criminal Procedure Code cannot be set aside by the High Court unless the Magistrate has exceeded his jurisdiction.—In re Jivabhai Khusal (5). It cannot, be said that the jurisdiction has been exceeded, if the offence was committed before a criminal Court in the course of a judicial proceeding. The term “Court” includes all Magistrates. (Section 3 of the Indian Evidence Act). The offence was committed by Sathe, as I shall show later on, as a witness in the proceeding in the course of an investigation under Chapter XIV of the Criminal Procedure Code. Such an investigation is a stage of a judicial proceeding within the meaning of s. 193 of the Indian Penal Code, The reference proceeds upon a misconception of the procedure adopted in the case. The Sessions Judge has wrongly applied the provisions of Chapter XVI of the Code to the facts of the case. Those provisions had yet to come into operation. His attention does not seem to have been drawn to the provisions of Chapter XIV of the Criminal Procedure Code, under which the proceeding has obviously taken place. My client, Laxman Bilkrishnadas, gave certain information to the Police. The Police referred him to the Magistrate. He accordingly made an application to the Magistrate, in which he narrated what had taken place, mentioned his suspicions about Sitae, asked the Magistrate to take charge of the insured registered letters and take each steps in the matter as the Magistrate may deem fit. Thereupon, the Magistrate ordered the Police to investigate and report. The Magistrate could do so under s. 155 of the Criminal Procedure Code if the information was about the commission of a non-cognizable offence. He could equally do so under cl. 3 of s. 156 of the Criminal Procedure Code, if it was a cognizable case. The Sessions Judge is wrong in supposing that the Magistrate had no authority to order the Police to investigate unless there was a complaint, The Magistrate, after reading the petition of my client, could proceed even on suspicion that an offence had been committed, (S, 190, cl. 1, sub. cl. (c), Criminal Procedure Code), My client's petition to the Magistrate shows that my client suspected that Satb. 6 had attempted to cheat by personation. That was a Cognizable case.

12. The Police could investigate even without the order of a Magistrate under clause (1) of s. 156 of the Criminal Procedure Code Even if they preferred not to take the initiative, the Magistrate could order them to investigate under clause 3 of the same section. The Police carried on the investigation and took down the statement of Sathe as a person acquainted with the circumstances of the case, and after completing their investigation, sent their report to the Magistrate, asking Sathe personally to appear before the Magistrate. Sathe was not an accused person during the Police investigation. The Police investigation lasted for nearly a week. If Sathe were an accused person, the Police would have forwarded him to the Magistrate under s. 167, Criminal Procedure Code, when they found that the investigation could not be completed within 24 hours. Again, if he were an accused person, the Police, when they made their report, would have forwarded him under custody to the Magistrate or released him after taking security and under s. 170 of the Criminal Procedure Code. After receipt of the police report, the Magistrate, before commencing a regular inquiry into or a trial for the offence, had to satisfy himself whether an offence had been committed or not, and, if so, what offence, and by whom, whether by Sathe or by my client Laxman Balkrishnadas, whom Sathe had charged, during the Police investigation, with having tampered with the seals of the insured registered letters. Before the Magistrate, therefore, at that stage, Sathe was not an accused person. If anything, he had become a complainant. To dispose of the case under section 159 of the Criminal Procedure Code, the Magistrate administered an oath to Sithe and recorded his statement on oath as a witness in the proceeding under s. 164 of the Criminal Procedure Code. This the Magistrate had power to do: Queen Empress v. Alagu Kone (6). The statement so taken is evidence within the definition of s. 3 of the Indian Evidence Act. The proceeding in the course of which evidence is or may be legally taken on oath is a judicial proceeding as defined by s. 4, cl. (m) of the Criminal Procedure Code. Bathe's statement on oath was found by the Magistrate to have been falsa. He had made that false statement on oath legally administered to him under section 161 as a witness in a judicial proceeding. The Magistrate had, therefore, jurisdiction to proceed against him under s. 476 of the Criminal Procedure Code. The Magistrate not having exceeded his jurisdiction, this Court should decline to interfere with his order.

13. The Sessions Judge has relied upon Abdul Majid v. Krishna Lal Nag (7). In that case, the false affidavits were used in a miscellaneous proceeding under the bengal tenancy act, which did not authorize the District Judge to hold the inquiry he held and there was no provision in that Act or any other law authorising the District Judge to examine the applicant on oath in such proceedings. In the present case, the Magistrate bad power, in the course of an investigation under Chapter XIV or at anytime thereafter, before the commencement of the regularlinquiry or trial, to administer an oath to Sathe as a witness in a judicial proceeding. The Sessions Judge erroneously assumes that Sathe was an accused person. As to the ruling in Hari Charan Singh v. Queen-Empress (), I doubt if it is good law. The accused in that case, after he was acquitted, ceased to be an accused person. After acquittal, I fail to see why his statement could not legally be taken on oath by the Magistrate under section 164 of the Criminal Procedure Code. Even assuming that it is good law, it does not apply to the facts of the present case.

14. Mr. B.V Vidwans, in reply.— Sections 355 and 156 of the Criminal Procedure Code contemplate an offence committed with the limits of the Police Station, and an information to the Police about it. Here there is no suggestion in the complaint, of any offence, much less of an offence committed within the limits of the Police Station. And so these sections have no application to the matter in hand. Such a case was never made out in the Court below.

15. Further it is said that the Magistrate examined Sathe under s. 164 of the Criminal Procedure Code. The Magistrate does not say so, The case of Queen Empress v. Alagu Kone () is distinguishable. There the state-meat was made by a witness during the investigation of an offence of murder alleged against a third person. While in the present case it is the accused or the suspected person that has been examined on oath.

16. It is said that the Magistrate wished to ascertain clearly whether there were sufficient grounds for his proceeding under s. 190 (c) of the Criminal Procedure Code and so he examined Sithe. In that view the examination was directed simply to obtain information upon which a case might be started subsequently against seme person not before the Court. Then at that stage Sathe was certainly not a witness and so could not be examined on oath. See Indian Oaths Act, s. 5.

Aston, J.:— One Laxmandas appeared before the Police and was by the Police referred to the Magistrate, with the intimation that he should… make an application to the Magistrate and that they would then enquire. Laxmandas then made his representation to the Magistrate stating certain circumstances and the City Magistrate, Poona, before whom the said representation was made sent it to the Police with authority to investigate and report.

18. The Sessions Judge who makes the reference states in his grounds of reference that the City Magistrate under the belief that an offence had been committed sent the matter to the Police for enquiry. There is nothing before us to show whether the City Magistrate believed or suspected this. An investigation was made by the Police and certain registered and insured packets produced by Laxmandas were returned to the Magistrate with a report as to the result of their investigation. The City Magistrate then made a farther enquiry and examined one Bathe on solemn affirmation and after that examination of Sathe on soleinen affirmation the registered insured packets which formed the subject of the enquiry and which were addressed to Sathe ??? Laxcaandas ware opened. Then it appeared that instead of containing currency notes as sworn to by Sathe they contained blank bits of papers. The City Magistrate then ordered Sathe to be taken before another Magistrate for enquiry whether he had committed an offence of perjury in respect of his having sworn in the statement aforesaid that these packets contained currency notes.

19. The case has been referred to us by the Sessions Judge, Poona, on the ground that the order under s. 475, Criminal Procedure Code, was not a legal order. In making the reference the Sessions Judge says: ‘Here the learned Magistrate had no complaint before him nor did he examine the complainant’—both of which are Conditions precedent to the delegation of the enquiry, As the mater was sent with out jarisdietion to the Chief Constable the whole enquiry before him would seam to be null and viod.”

20. With regard to that we may point oat that under s. 155, cl. 2, Criminal Procedure Code, “no police officer shall investigate a non-cogaisible case without the order of a Magistrate of the First or Second Class having power to try such case or commit the same for trial, or of a Presidency Magistrate.” And s. 156, cl. 3 Criminal Procedure Code, provides with regard to cognizable cases that “any Magistrate empowered under s. 190 may order such an investigation as above mentioned.” It has not been suggested that the City Magistrate is not empowered as contemplated under s. 180, Criminal Procedure Code.

21. Mr. Vidwans in supporting the reference has cited to us the case of Hari Charan Sing v. Queen-Empress () and has contended that that decision is an authority for holding that the City Magistrate could not legally examine Sathe on solemn affirmation when there was no case before the Magistrate and the examination was directed simply to obtain information on which proceedings could be taken and that the Magistrate, although he might examine him to obtain information, could not legally examine him on oath. In the Calcutta Ruling there is no reference to s. 164, Criminal Procedure Code, which provides that every Magistrate not being a police officer, may record any statement or confession made to him in course of an investigation under Chapter 14 or at any time afterwards, before the commencement of the inquiry or trial. And cl. 2 of that section provides that such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case.”

22. In Queen-Empress v. Alagu Kone () it was held that “A Magistrate acting under Criminal Procedure Code, s. 164, has power to administer an oath and a charge of perjury can be framed with regard to the statements made before him on oath when he is so acting,”

23. In the present case likewise we are concerned with the statements taken by the City Magistrate in a stage of the inquiry which was being conducted under the provisions of the Code of Criminal Procedure.

24. The main ground, however, upon which this reference is made is that, in the view of the Sessions Judge, Sathe, at the time he was examined on solemn affirmation by the City Magistrate, was an accused person: and that as the law provides that an oath should not be administered to an accused person, Sathe was illegally sworn. We have heard Mr. Vidwans on that point and we have examined all the materials befor us, and in coming to a decision on that point on the materials before us, we can find no ground for holding that at the stage of the inquiry being made by the City Magistrate, Sathe was an accused person. In consequence of the statements made when the Magistrate was conducting the enquiry aforesaid, and in consequence of what was gathered by the Magistrate after that deposition, Sathe became an accused parson. Before that he appears to have been examined by the Magistrate in order to elicit information, but there is nothing to show that he was at that stage an accused person. In saying this we do not wish in any way to prejudice Sathe in the defence he may make as to the charge of perjury brought against him. It will be open to him in his defence at the trial to plead that he was an accused person at the time he was put on solemn affirmation by the City Magistrate and make use of such contention in support of his defence as he may be advised.

25. We have also given attention to the question whether any process was issued against him, whether any security was taken, whether when before the Magistrate he was treated as an accused person up to the stage when the packets were opened.

26. We accordingly decline to interfere and direct the record and proceedings to be returned to the Sessions Judge, Poona.

Heaton, J.:— It appears that when the matter was before the Police and the Magistrate, the commission of some offence was suspected. It was apparently not known then, and we do not know now, whether the supposed offence was cognizable or non-cognizable; but in either event the Magistrate had power to order an investigation by the police. If it was a cognizable offence, he had power under cl. 3, s. 156, Criminal Procedure Code, and if it was non-cognizable, he had this power because he had taken cognizance of the offence under cl. (c), s. 190, Criminal Procedure Code, and not upon a complaint. The provision of Chapter XVI, therefore, did not come into operation and the Magistrate was not bound to examine the complainant on oath before sending the matter to the police for enquiry. Our knowledge of the facts in so imperfect that our conclusions must be considered to be subject to any consequances following from a more complete disclosure of the facte.