1. The petitioner Parmanand Brahmachari is under trial for an offence under S. 211, I.P.C, on the complaint of the Sub-Inspector in charge of the Motihari Police Station with whom he lodged a first information on 29th May last. On 7th June the Sub-Inspector reported that the whole, case was maliciously false and preferred to the Sub-Divisional Magistrate a complaint against the petitioner of an offence under S. 211, I.P.C The Magistrate gave the petitioner an opportunity to show cause why he should not be prosecuted and to prove his case. The petitioner on 27th June filed a petition showing cause and impugning the police report and on 21st July examined a medical witness. On that date the Magistrate who was apparently inclined to summon the accused since he remarked that the police had much evidence against him took time to peruse the police records and eventually passed orders on 18th August summoning the petitioner under S. 211. In the interval the latter had on 27th July presented a petition dealing with points of law but also asking that what he called his complaint be finally disposed of before process was ordered to issue on him on the complaint of the Sub-Inspector.
2. In support of the rule issued on the application of the petitioner to quash the proceedings and to order that he be given an opportunity to prove his case, reference is made on his behalf mainly to the case of Daroga Gope v. King-Emperor* (1), and it is contended that the offence of laying a false information before the Sub-Inspector on 29th May has been committed “in relation to” the offence of instituting on 27th June a false case by a complaint in the form of a petition impugning the police report on his first information, within the meaning of the words “in relation to” in Section 195(1)(b) of the Cr PC. But a consideration of the case cited shows, as will presently appear, that the facts are distinguishable. Some older decisions also have been cited, but it is clear that in the amending Act of 1923 the legislature completely altered the law in respect of the procedure for prosecution under S. 211, I.P.C, resolutely or at least incidentally making a clean sweep of the cloud of interpreting rulings which had collected round the provisions of the statute. Those decisions on the provisions of the unamended Code of Criminal Procedure relating to an order or sanction to prosecute under S. 182 or S. 211, I.P.C, are at best lumber and at worst actively misleading in the interpretation of the provisions of the amending Code which supersedes the previous law and prescribes an entirely new procedure by complaint. In the present case there is manifestly nothing in S. 195(1) to prevent the Sub-Inspector of Police from preferring a complaint of an offence under S. 211 against the petitioner, Equally there was nothing to prevent the Court from taking cognizance of the complaint. Taking cognizance occurs as soon as the Magistrate as such applies his mind to the suspected commission of an offence: Sourindra Mohan v. Emperor (2).
3. In the present instance the Magistrate took cognizance either before or at least as soon as he issued notice upon the petitioner. When taking cognizance of an offence on complaint a Magistrate acts under Ss. 200 to 204. In the present instance he was not required under S. 200 to examine the complainant who was a public servant acting in discharge of his public duties. The Magistrate if he does not dismiss the complaint must either issue process on the accused or proceed under S. 202 to make an inquiry or to direct a magisterial or police inquiry or investigation. It is clear that on 13th June the Magistrate though recording his reasons in language reminiscent of a procedure which obtained under the unamended Code, thought fit to set out to hold an inquiry under S. 202. When, therefore, the petitioner filed his petition on 27th June impugning the police investigation, the Magistrate had already taken cognizance on complaint of the offence alleged against the petitioner, and, therefore, S. 195(1)(b) could not possibly apply. On the other hand in the case of Daroga Gope v. King-Emperor* though the investigating Police Officer made his adverse report on 15th January he did not prefer a formal complaint to the Magistrate until 3rd February, whereas Daroga Gope filed a formal complaint before the Magistrate on 23rd January, that is to say, before the Magistrate had taken cognizance of the offence of Daroga Gope on the complaint of the Police Officer and indeed before the Magistrate had received the petition of complaint of the latter. The distinction is of importance: in the case cited magisterial cognizance was first taken on the complaint of accused whereas in the present instance, such cognizance had already been taken before the accused took any action which can, even by implication, be adjudged to be a complaint, and it is impossible to hold that when a Magistrate has taken cognizance of a complaint anything that can subsequently happen will suffice or anything in S. 195(1)(b) can operate to deprive him of jurisdiction to proceed thereon in accordance with law. Clearly the Magistrate had jurisdiction to issue summons on the petitioner.
4. It is next urged that in any event the petitioner was not afforded adequate opportunity of showing cause against his prosecution. Assuming that under the superseded provisions of the Code he was entitled to such an opportunity, he is no more entitled to it under the procedure laid down in the amended Code than any other person against whom a complaint is made. It was open to the Magistrate to issue process without any notice to him if on reading the complaint he found sufficient ground for proceeding, or to proceed under S. 202 for the purpose of ascertaining the truth or falsity of the complaint. An inquiry or investigation under S. 202 is designed to afford the Magistrate an opportunity of either confirming or removing such hesitation as he may feel in respect of issuing process against the accused. The nature of the inquiry varies with the I circumstances of each case, and it is certainly not contemplated that it should always be exhaustive. Frequently all that is required is the elucidation of some minor point or the summary determination of the sufficiency of the available evidence, but least of all is the inquiry a preliminary trial of the accused, at which he is entitled to adduce his evidence before process can issue upon him. The degree of formality of the proceedings and the width and depth of the inquiry is entirely in the discretion of the Magistrate (so long at least as he confines himself to the simple question of issue of process or dismissal of the complaint). The provision is enabling and not obligatory as soon as he has satisfied himself that process should issue, its object is fulfilled and it is certainly not incumbent upon him or ordinarily expedient that he should practically enter upon a trial of the case.
5. In the present instance the Magistrate was satisfied upon the material placed before him by the prosecution of the truth of the complaint in spite of the submissions and evidence adduced by the accused and was, therefore, warranted in issuing process, even though accused may have had further evidence which he could adduce. This Court moreover will not ordinarily interfere with the details of an inquiry or investigation under S. 202 and particularly will not do so on the ground that it was inadequate.
6. As to the argument that when the Magistrate had before him two competing complaints of which he had taken cognizance, he should have disposed of the complaint of the petitioner before issuing process upon the petitioner on the other though earlier complaint, it is based upon recollection of the decisions under the superseded provisions of the unamended Code.
7. When there are competing complaints it is manifestly within the discretion of the Magistrate on a consideration of the circumstances of the particular case, to determine in which he should issue process first and not less so when he has made an inquiry under S. 202 in one of them which necessarily involves also a consideration of the other.
8. The application is without merit and accordingly this rule is discharged.
V.B/R.K
9. Rule discharged.