Emperor v. Bhiku Hossein

This was a Reference made by the learned Sessions Judge of Dinajpur recommending that the order passed by the Deputy Magistrate at head quarters, under sec. 476, Cr. P.C, directing the trial of the complainant under sec. 211, and sending the case to the District Magistrate for orders, should be set aside. At the same time he informed us that there was a motion before him to order further enquiry into the matter. He did not think it proper to deal with it himself because it might prejudice our order in regard to the matter under sec. 476, Cr. P.C He says it seemed to him that the proper course to take was to submit this Reference for decision before proceeding to dispose of the other motion.

We need not, therefore, go into the point of necessity for further enquiry under sec. 203 as we have dealt with it in a similar case to this in a somewhat lengthy judgment delivered this morning in which we pointed but that the Government Circular with regard to enquiries into complaints against Police officers has been greatly misunderstood, that Circular cannot be held to refer to any kind of local investigation under sec. 202, Cr. P.C, and that the local investigation which it mentions is a full and complete judicial enquiry on the spot after process issued, and hearing witnesses on both sides, and taking the explanation of the accused person.

It is clear that the accused person cannot be called upon for an explanation, nor can he be called upon to produce witnesses, unless and until there is ground for issuing process against him, and the law says that if upon complaint there is ground for issuing process against him the Magistrate shall issue summons for the attendance of the accused. That is sec. 204. The idea seems to have been that the Police officer might have an opportunity of defending himself and getting his accuser charged with bringing a false case, without a trial, that is to say, a judicial trial. Now that would be as unfair to the complainant as the converse procedure would be to the accused. We must take it that the Government in tended that both sides should have full and free justice, and then fore when a complaint made is against a Police officer of a certain offence, under sec. 202, the Magistrate who entertains the complaint must either go to the spot and make enquiry himself, and issue process if he finds it necessary to call upon the accused to answer to anything, or if he makes it over under sec. 192 to any other Magistrate of the first class, that Magistrate must be vested with full seisin of the case and must continue the enquiry up to the necessary order of discharge, acquittal or conviction, as the case may be. But that is hardly the point which the learned Judge has referred to us. This is a point which he will have to deal with in the light of the remarks which we have just made.

The point which he makes is that the Deputy Magistrate at head-quarters had no power as such to transfer the investigation to the Sub-Divisional officer of Balurghat, and the District Magistrate in his explanation has frankly admitted that this is so; but, as he points out, an error made in good faith is cured by sec. 529 Granted that this is so, the Sub-Divisional officer was vested with full seisin of the case and he alone can enquire into it and pass final orders. But this is just what the Petitioner in this case intended to avoid when he went to the District Magistrate with his complaint; and it appears to us that the reasons which weighed with he District Magistrate in allowing him to make his complaint before the officer at head quarters are equally cogent now. Nothing has occurred since to render it the less desirable, that some officer other than the local officer at Balurghat should make this enquiry. The secure of the erroneous order of transfer by sec. 529 would only give the Sub Divisional officer, as we have seen, jurisdiction; in could not confer jurisdiction on the Deputy Magistrate at head-quarters to recall the case to be dealt with under sec. 203 or pass any orders under sec. 476. All these orders, therefore, are ultra vires and without jurisdiction. Whether there should be a further enquiry into the case or not is a matter which the Sessions Judge will now no doubt have no difficulty in deciding. But we must make the Rule absolute as far as this Reference is concerned, and hold with the learned Judge that the order for prosecution under sec. 476 is without jurisdiction, and must be set aside.

Rule made absolute.