1. I agree in the conclusion arrived at by my learned brother. We recently had occasion (Criminal Revision No. 988 of 1918 decided on the 22nd November 1918) [Harihar Roy v. Emperor 52 Ind. Cas. 595; 23 C. W. N. 131; 22 C. L. J. 383; 20 Cr. L. J. 675.] to consider' the question whether the report of a Police Officer disclosing the commission of a non-cognizable offence was a Police report
" within the meaning of
Section 190 52 Ind. Cas. 595; 23 C. W. N. 131; 22 C. L. J. 383; 20 Cr. L. J. 675. (b) of the Criminal Procedure Code or a ' complaint"
within the meaning of
Section 1 1 Ind. Cas. 36; 82 M. 3; 5 M. L. T. 16; 9 Cr. L. J. 130. (h). The conclusion at which we then arrived was that it must be one or the other. That being so, the Magistrate in the present case had jurisdiction to take cognizance of the non-cognizable offence disclosed in the report submitted by the investigating Police Officer; the offence, namely, of making a false charge punishable under
Section 211 of the Penal Code.
2. If the question were free from authority, I should for my part be disposed to say . that the report of a Police Officer in a non-cognizable case is a 'Police report' for the purposes of Section 190 52 Ind. Cas. 595; 23 C. W. N. 131; 22 C. L. J. 383; 20 Cr. L. J. 675. (b) of the Criminal Procedure Code. In that ' case the Magistrate had clearly power to issue process against the petitioner as he has done. But if that view be not correct and the report in question was a complaint, then the only error which the .Magistrate committed was in not examining the complainant, that is the Police Officer, on oath before issuing Process. In the case I have referred to [Harihar Roy v. Emperor 52 Ind. Cas. 595; 23 C. W. N. 131; 22 C. L. J. 383; 20 Cr. L. J. 675.], we held that such an omission was an irregularity only and that it did not go to the jurisdiction of the Magistrate. That being for, there is no reason why merely on this ground we should interfere in the exercise of our revisional jurisdiction and direct that the case be commenced de novo.
3. Then there is the proceeding which has been interpolated between the report of the Police Officer and the issue of process. The petitioner was called upon to show cause why he should not be prosecuted for making a false charge, and the proceeding was made over for hearing by Mr. Majid, the senior Deputy Magistrate, who had received the report, to a Junior Deputy Magistrate, Mr. Hollow. The petitioner took no exception at the time. He showed cause and produced witnesses. Mr. Hollow, after examining the witnesses, was of opinion that the case instituted was false and with this expression of opinion the case went back to Mr. Majid who issued process. Now it is quite true that the course so folio wed is not expressly sanctioned by the Code. But in Queen-Empress v. Sham Lall 14 C. 707 ,F. B.); 12 Ind. Jur. 56; 7 Ind. Dec, (w. s.) 469., which was decided by a Full Bench, Sir Comer Petheram laid it down that a prosecution for making a false charge should not be commenced ' until it is clear that the original charge has been either dismissed or abandoned." Ha went on to say: -
4.
"I should add that in order to show conclusively that such a charge (that is the original charge said to be false) has been abandoned, I think that before the order to prosecute for the false charge is made, the person who made the original charge should be offered an opportunity of supporting it or abandoning it."
5. Norris, J., also says:-
I am also of opinion that a Magistrate should not take cognizance of an alleged offence under Section 211, Indian Penal Code, until the alleged offender has had an opportunity of substantiating the original charge, and such original charge has been disposed of in due course of law.
6. Wilson, J., concurred in the judgments of Petheram, C. J. and Norris, J., and Tottenham and Ghose, JJ., concurred generally in those judgments. Tottenham, J.'s reservation is not pertinent to the question now under discussion.
7. Since Sham Lall's case 14 C. 707 ,F. B.); 12 Ind. Jur. 56; 7 Ind. Dec, (w. s.) 469. and in deference to the opinion expressed in that ease, the procedure adopted in the present case has been . commonly followed and it is only recently that any exception has been taken to it. The position now is that if the person accused of having made a false charge is not afforded an opportunity of proving the charge, the Magistrate's proceedings are attacked on that ground on the authority of the Pull Bench ease. If having been given such an opportunity, he fails to prove the charge and is then prosecuted, he complains that the Magistrate had no jurisdiction to call upon him to show cause.
8. Different views may perhaps be held as to the propriety of calling upon an accused person to show cause why he should not be prosecuted for an offence. Bat clearly it was the opinion of the Full Bench, or at any rate of the majority of the Judges -who composed it, that in the special case of a charge made to the Police and reported by the Police to be false, the maker should have notice before being prosecuted under Section 211. In giving such notice the Magistrate, though he may not be acting under any express provision of the Code, cannot be said to not without jurisdiction. The maker may show cause or may refuse to show cause, but whichever course he adopts, having made the charge, he can hardly be heard to complain. Similarly in proceedings under sections 195 and 476 of the Code, a person could make no grievance out of the fact that before an order was made against him under either of those sections, he was given notice or was called upon to show cause why such an order should not be made.
9. Moreover, as nay learned brother has said, if the proceedings held in such cases upon an order to show cause are without jurisdiction, the result is merely that those proceedings are null and void. They do not affect the Magistrate's jurisdiction to issue process.
10. What happened in the present case was this. On the receipt of the Police report Mr. Majid stayed his hand. He gave the petitioner the opportunity required or suggested by the Full Bench ease before issuing process. I agree with my learned brother that in no view of the case can it be said that in issuing process Mr. Majid acted without jurisdiction and that, the Rule should be discharged.
11. Shamsul Huda, J.-This is a Rule calling upon the Deputy Commissioner of Jalpaigurf to show cause why the order of Mr. Majid; dated the 15th of September 1918, sum moning the petitioner to answer a charge under Section 211, Indian Penal Code, should not be set aside.
12. It appears that the petitioner lodged an information to the Police of a dacoity said to have been committed in his house. The Police after investigation submitted a report to the aforesaid Mr. Majid, the Senior Deputy Magistrate of Jalpaiguri, stating that the case was false and recommending the prosecution of the petitioner. This report purports to be one under Section 173 of the Criminal Procedure Code. On receipt of this report on the 22nd of July 1918, the petitioner was called upon by Mr. Majid to show cause why he should not be pro secuted for an offence under Section 211 of the. Indian Penal Code, and subsequently on the 3rd of August 191ti he referred the matter to Mr. Hollow, another Deputy Magistrate, for disposal. Mr. Hollow, after examining some witnesses produced by the petitioner, was of opinion that the charge of dacoity was false and recommended his prosecution. Mr. Majid accepted this recommendation and summoned the petitioner to appear before him to answer to a charge under Section 211, Indian Penal Code. The Rule is directed against this order.
13. Mr. Pugh, who appeared in support of the Rule, contended that this order is illegal and should be set aside mainly on two grounds. In the first place, he contended that the report of the Police Officer who recommended the prosecution of the petitioner was not a Police report within the meaning of Section 190 52 Ind. Cas. 595; 23 C. W. N. 131; 22 C. L. J. 383; 20 Cr. L. J. 675. (h), Criminal Procedure Code, as the Police report contemplated by that Section is a Police report in a cognizable case, that an offence under Section 211 being non-cognizable, the Magistrate was not competent to take cognizance of the case on such a report. This contention is based on the decision of a Fall Bench of the Bombay High Court: King-Emperor v. "sada 26 B. 150 (F. B.); 3 Bom. L. R. 586, in which it was held that where a Police Officer, of his own motion, makes a report to a Magistrate in anon-cognizable case,. it is not a Police report as there is no provision in the Criminal Procedure Code which empowers a Police Officer to make such a report. As observed by Mr. Justioe Chanda-varkar, "the Legislature has studiously attached to the expression 'Police report' a peculiar meaning throughout the Code where-ever the expression occurs, and pointed out the occasions when and the purposes for which such reports should be made. Where a Police report goes beyond those occasions and purposes, it must fall within the definition of complaint' in Section 4, Clause U) of the Code." The same view was taken by "the Madras High Court in the case of Chidambaram Pillai v. Emperor 1 Ind. Cas. 36; 82 M. 3; 5 M. L. T. 16; 9 Cr. L. J. 130., where it was held that a report of a Police Officer must be some statement made in connection with or at least under colour of the duty of the maker as a Police Officer. A somewhat different view was, however, taken by two learned Judges of this Court in the case of Dilan Singh v. Emperor 17 Ind. Cas. 570; 40 C. 360; 13 Cr. h. J. 826., in which it was said that a Police report such as the report in the present case is not a complaint as defined in the Code, inasmuch as that definition expressly excludes a report of a Police Officer. I may, however, Observe that if such a report is not a Police report within the meaning of Section 190 (l) (b), it is not excluded from the definition of a complaint under Section 4 (h). We nave also been referred to the decision of Chapman and Walmsley, JJ., in Gangadhar Tradhan v. Emperor 33 Ind. Cas. 626; 43 C. 173; 20 C. W. N. 63; 17 Cr. L, J, 146. If it were necessary in the present case to decide the point, perhaps I should not have felt very much pressed by these decisions, as the point was not directly raised in either of these two cases. The same remark applies to the decision of a Pull Bench of this Court in Queen Empress v. Sham Lall 14 C. 707 ,F. B.); 12 Ind. Jur. 56; 7 Ind. Dec, (w. s.) 469. The question, however, does not appear to be of any practical value in the decision of this base, for conceding that the learned Counsel is right in his contention and that the report was not a Police report, as stated' before, it would fall within the definition of a complaint and the Magistrate could take cognizance of the case under section 190 (1) (a), in which case he ought to have examined the complainant before issuing the summons (section 200, Criminal Prooedure Code . But his omission to do so is a mere irregularity and does not go to the root of the Magistrate's jurisdiction.
14. In this view of the case the action of the Magistrate was not in excess of his powers. In support of the Rale reliance has also been placed on the case of Tayabullah v. Emperor 36 Ind. Cas. 845; 20 C. W. N. 1265; 43 C. 1152', 24 C. L. J. 134; 18 Cr. L. J. 13., but as the order complained of is neither an order under Section 195, Criminal Prooedure Code, nor an order under Section 476, that case seems to me not to have any bearing on the present question; I, think, therefore, that the proceedings in this case have been properly initiated.
15. Next it is argued that Mr. Majid having made over the case for disposal to Mr. Hollow, it was Mr. Hollow alone who had seisin of the case and Mr. Majid had no jurisdiction to direct the issue of summons without an order of transfer passed in conformity with the provisions of Section 528 of the Criminal Prooedure Code. If the order were an order under Section 202, Criminal Prooedure Code, on the authority of the ruling in Hari charan Gorai v. Srish Chandra Sadhukhan (8) the contention would have been well founded. The order making over the case to Mr. Hollow for disposal is not very clear, but both Mr. Majid and Mr. Hollow understood it to refer not to the actual charge under Section 211 against the petitioner but to the proceedings calling upon the petitioner to show cause why he should not be prosecuted under that section. In my. opinion the order was neither in form nor in effect ah order under Section 202, Criminal Procedure Code. Assuming that the Magistrate took cognizance of the case upon a complaint, it does not appear that the Magistrate was not satisfied as to the truth ' of the charge against the petitioner. His object in calling upon the petitioner to show cause was, no doubt, to give an opportunity to prove the charge of dacoity contained in the information laid by him before the Police and was in conformity , with the practice that was recommended in the Full Bench case of Queen Empress v. Sham Hall 14 C. 707 ,F. B.); 12 Ind. Jur. 56; 7 Ind. Dec, (w. s.) 469. But as pointed out in the case of Sarba Mahton v. Emperor 20 Ind. Cas. 211; 17 C. W. N. 824; 14 Cr. L. J. 387. and Tayabullah V. Emperor 36 Ind. Cas. 845; 20 C. W. N. 1265; 43 C. 1152', 24 C. L. J. 134; 18 Cr. L. J. 13., the procedure, though obviously fair, is not one under any provision of the Code and its adoption, even if it led to an enquiry by another Magistrate, can in no way affect the jurisdiction of the Magistrate who took cognizance of the case to summon the accused and proceed with the trial. I think, therefore, this Rule should be discharged.