Sudarsan Barhambhat v. Emperor

1. The petitioner, who is a railway employee, has been convicted under S. 211, Penal Code, by a 1st Class Magistrate of Buxar, and sentenced to rigorous imprisonment for six months. The conviction and sentence have been upheld by the Sessions Judge of Shahabad. The conviction relates to a first information report of robbery which was lodged by the petitioner on 27-8-1944, before a Sub-Inspector of Railway Muzaffaruddin Mullick. This officer after recording the statement sent it for investigation to Dumraon police station, and the investigation was made by the Assistant Sub-Inspector, Sidhnath Singh, of that police station. As a result of that investigation, the Assistant Sub-Inspector applied to the Sub-divisional Magistrate of Buxar for the prosecution of the petitioner under SS. 182 and 211, Penal Code. The Sub-divisional Magistrate thereupon summoned the petitioner under these sections and put him on trial with the result mentioned above.

2. The short point raised before me is that the conviction and sentence must be set aside on the ground that the proceedings against the petitioner were void ab initio for want of a proper complaint. The initiation of a case under Sections 182 and 211, Penal Code is governed by Section 195 of the Cr PC. Under clase (a), sub-section (1) of that section no Court shall take cognizance of an offence under S. 182, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.

3. Here, if we regard the report of the Assistant Sub-Inspector as the complaint, it is the complaint of somebody who is neither the person to whom the complaint was made nor of a person to whom he was a subordinate. Mr. C.P Sinha, for the Crown, has urged that such statement as the complainant may have made to the Assistant Sub-Inspector in the course of the investigation may be regarded as an information within the meaning of S. 182, so as to give the Assistant Sub-Inspector jurisdiction to file the complaint. Under S. 182, the information which is penalised is an information which is intended to cause or known to be likely to cause the public servant concerned to take action in one of the ways specified in the section. Here, information within this meaning had already been given and the law had already been set in motion. Further statements made in the course of the investigation would not, to my mind, be further information in this sense. Apart from this consideration, the point is concluded by a decision of this Court. In Re: Barhamdeo Singh 9 P.L.T 1511 where the first information-report had been made to a head-constable at the Mokameh railway station and the complaint was filed by the investigating officer who was the Sub-Inspector of Barh. On these facts, their Lordships accepted the reference of the Additional Sessions Judge of Patna and set aside the conviction and sentence.

4. As regards S. 211, under which the conviction has been recorded, clause (b), sub-section (1), Section 195 of Cr PC, provides that no Court shall take cognizance of an offence under this section when such offence is alleged to be committed in, or in relation to any proceeding in any Court, except on a complaint in writing of such Court. In the present case, there is no such complaint. Mr. C.P Sinha has referred to the case in [Sarup Lal… v. Emperor…Opposite Party.] 17 P.L.T 9532 which was a case under the Bihar and Orissa Food Adulteration Act (Bihar and Orissa Act 2[II] of 1919). The defect urged in that case was the absence of the consent or order in writing of the local authority, or of person authorised thereto, required by S. 10 of the Act. Rowland J. dealing with the point remarked that it was a question of fact which ought to have been raised and determined in the Court of the first instance and not in the Court of revision. The further remark that the defect, if any, would be cured by Section 537 of the Cr PC is in the nature of an obiter dictum. In the absence of the complaint required by S. 195, the Magistrate was acting without jurisdiction in summoning the accused and the subsequent proceedings are, therefore, void. On the above grounds, I would set aside the conviction and sentence in this case and acquit the petitioner. Let him be discharged from the bail bond.

V.R/D.H

5. Conviction and sentence set-aside.