Bachalal v. Emperor

1. Under the provisions of Section 438 of the Cr PC, the Sessions Judge of Purnea has referred two orders of the Subdivisional Magistrate of Purnea dated 21st February and 13th June, 1935, summoning Bachalal in respect of an offence under S. 182, I.P.C, with a recommendation that the proceedings thereunder against Bachalal be quashed. Bachalal filed a petition of complaint before the Subdivisional Magistrate of Kishungunj on 4th January last which the Magistrate sent for a police inquiry. Before any police report was received, the complainant filed on the 18th January a petition challenging the police investigation and a Deputy Magistrate who was in charge of the office of the Subdivisional Magistrate during his absence, directed issue of summons under S. 379—a very unwise procedure in the circumstances. Subsequently the police reported the original complaint to be false, and on the—13th February the Subdivisional Magistrate apparently not knowing that summons had been issued subsequently at the instance of the petitioner, directed the Sub-Inspector to file a complaint against the petitioner under Ss. 182 and 11, 211, I.P.C, and the latter did so with the result that on the 21st February Bachalal was summoned under S. 182, I.P.C The trial initiated by the Deputy Magistrate resulted in the acquittal of the accused, the Magistrate who tried the case, remarking that they were at least entitled to the benefit of the doubt. On the 13th June the Subdivisional Magistrate directed that summons should be issued upon Bachalal, the case against whom under S. 182 had been kept pending. This summons was unnecessary because he was already on bail.

2. The learned Sessions Judge considers; that the Subdivisional Magistrate's action in asking the Sub-Inspector to file a 1 complaint under Ss. 182 and 211 and in acting upon the complaint filed by him is illegal. He is of opinion that the proper authority to file a complaint under S. 182 was the Magistrate who is the public servant to whom the alleged false complaint was made. This view is correct, as has frequently been decided.

3. There was no privity between the complainant and the Sub-Inspector of Police who accordingly cannot remove the bar under Section 195(1)(a) of the Cr PC, to take cognizance of the alleged offence under S. 182. Nor was the Subdivisional Magistrate's order to him a complaint within the meaning of the provision. The learned Sessions Judge has given other reasons for the reference which appear to be less, sound, but it is unnecessary to examine them. The reference is accepted and it is directed that the proceedings against Bachalal under S. 182, I.P.C, initiated on 21st February 1935 be quashed.

S.R/R.K

4. Order accordingly.