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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Manuk (with him H.L Nandkeolyar and D.L Nandkeolyar), for the petitioner.
  • Sultan Ahmad, Government Advocate (with him Ahmad Raza, Gulam Muhammad and Syed Muhammad Izhar Hussain), for the Crown.
Judges
  • Jwala Prasad, J.
Acts
  • clause (b), sub-section (1) of section 190 of the Code,
  • section 161 of the Code of Criminal Procedure.
  • section 158 of the Code of Criminal Procedure
  • section 4(h) of the Code of Criminal Procedure.
  • section 13 of the Code. Under section 17(1)
  • section 302 read with section 149
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Manuk (with him H.L Nandkeolyar and D.L Nandkeolyar), for the petitioner.
  • Sultan Ahmad, Government Advocate (with him Ahmad Raza, Gulam Muhammad and Syed Muhammad Izhar Hussain), for the Crown.
Judges
  • Jwala Prasad, J.
Acts
  • clause (b), sub-section (1) of section 190 of the Code,
  • section 161 of the Code of Criminal Procedure.
  • section 158 of the Code of Criminal Procedure
  • section 4(h) of the Code of Criminal Procedure.
  • section 13 of the Code. Under section 17(1)
  • section 302 read with section 149
See more information ...
Smart Summary

Structured Summary of the Opinion (Jwala Prasad, J.)

Factual and Procedural Background

On 2 August 1927 communal riots occurred at Bettiah during which Kari Mian was murdered. During police investigation, on 13 August 1927 Hamid Mian was examined under section 161 of the Code of Criminal Procedure and implicated the petitioner and others as instigators of the murder. A first information report was drawn up by a sub-inspector on 26 August 1927. After investigation, a final report under section 173 was submitted to the Sub-divisional Officer of Bettiah on 13 September 1927; the report disbelieved Hamid Mian's version, described evidence as tainted, and concluded that evidence against Bishunath Upadhya and Baldeo Pasari was insufficient for a charge sheet. The Sub-divisional Magistrate disposed of the report on 14 September with the order: “Enter true under section 302. Accused unknown; evidence unreliable.”

Hamid Mian had earlier filed petitions before the Sub-divisional Magistrate complaining of the police investigation and seeking that, if the police submitted a final report, the Magistrate call for a charge sheet or allow the petitioner to prove his case by witnesses. The Sub-divisional Magistrate referred to an earlier order on similar petitions. Aggrieved, Hamid Mian applied to the District Magistrate (by a petition dated 29 September 1927) asking the District Magistrate to call for police papers and either order a judicial inquiry or direct the police to submit a charge sheet. The District Magistrate acceded to the latter prayer and directed the police to submit a charge sheet against Bishunath Upadhaya, Baldeo Pasari and Sukhdeo Sahay (the petitioner), whereupon the petitioner sought relief in the court that produced the present opinion.

Legal Issues Presented

  1. Whether the District Magistrate had power under the Code of Criminal Procedure to direct the police to submit a charge sheet after a final report under section 173 had been submitted to and disposed of by the Sub-divisional Magistrate empowered to take cognizance of the offence.
  2. Whether the District Magistrate's direction to the police to submit a charge sheet was an executive act outside the Code (and therefore not amenable to challenge under the revisional jurisdiction) or whether it was a judicial act that could be reviewed.

Arguments of the Parties

Petitioner's Arguments (Mr. Manuk)

  • The District Magistrate's order directing the police to submit a charge sheet was illegal and wholly without jurisdiction.
  • The District Magistrate did not have the power under the Code of Criminal Procedure to call for a charge sheet after the police had submitted a final report which had been placed before and disposed of by the Sub-divisional Magistrate.

Respondent's / District Magistrate's Arguments (Sir Sultan Ahmad)

  • The District Magistrate's order was an executive order not covered by the Code of Criminal Procedure and thus not subject to challenge under the revisional jurisdiction of the Court.
  • As the executive head of the district and of the police, the District Magistrate had the right to direct a police officer to submit a charge sheet.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court undertook a statutory and procedural analysis based on the provisions of the Code of Criminal Procedure as cited in the opinion.

  1. The court noted that the report was a final report within the meaning of section 173 of the Code (i.e., the investigation had been “completed”) and that section 173 requires submission of the final report to the Magistrate empowered to take cognizance of the offence on a police report. The words “Magistrate empowered to take cognizance” were linked to clause (b), sub-section (1) of section 190 of the Code.
  2. The court observed the administrative relationship: the District Magistrate is the head of the district and the Sub-divisional Magistrate was placed in charge of the sub-division under section 13 of the Code; under section 17(1) the District Magistrate may distribute business among subordinate Magistrates. Nevertheless, police reports under section 173 are to be submitted to the Magistrate who has power to take cognizance under section 190(1)(b) — here, the Sub-divisional Magistrate — and the report had been properly placed before and legally disposed of by that Sub-divisional Officer.
  3. The Sub-divisional Magistrate had refused to take cognizance of the offence (under clause (b) of section 191), accepting the police recommendation that the case against the petitioner was improbable. Having been placed before and disposed of by the Sub-divisional Officer, the report could not, in the court's view, be again put up before the District Magistrate for the purpose of directing a charge sheet.
  4. The court accepted that Sir Sultan Ahmad had frankly admitted there was no provision in the Code for placing such a police report before the District Magistrate in cases of this kind. The respondent's argument relied on the District Magistrate's executive authority over district police. The court analysed the practical effect of directing a charge sheet to be submitted: to call for a charge sheet when police had opined there was no case is effectively to put the accused to trial, since a charge sheet requires that the police either send up the accused, release him on bail, or report him as absconding — actions that directly affect personal liberty.
  5. Because calling for a charge sheet in those circumstances amounts to initiating proceedings that fetter liberty, the court treated such an order as judicial in character. On that basis the court concluded that the District Magistrate did not have power under the Code to call for a charge sheet after the final report had been placed before and disposed of by the Magistrate empowered to take cognizance under section 173.
  6. Accordingly, the court held that the District Magistrate's order directing the police to submit a charge sheet effectively set aside the Sub-divisional Officer's order and was therefore without jurisdiction under the Code; the court set that order aside.
  7. The court then considered the alternate prayer made by Hamid Mian before the District Magistrate — that a judicial enquiry be ordered. The court analysed the petition of 13 August as a “protest petition” and concluded it fell within the statutory definition of “complaint” in section 4(h) of the Code of Criminal Procedure: an allegation made to a Magistrate with a view to his taking action against a person who has committed an offence. The court therefore treated the petition as a complaint filed under section 200.
  8. The court found that the Sub-divisional Magistrate did not dispose of that complaint in accordance with law: the Magistrate should have examined the petitioner on oath and disposed of the matter under the procedures required by Chapter XVI of the Code. The court also identified formal defects in the petition as filed: the vakalatnama was not properly drawn, the actual name of the petitioner was not clearly stated (it was initialled by a pleader), and the petition lacked a proper signature.
  9. The court held that the accused is entitled to require the complainant to take responsibility for filing a valid complaint. It stated that Hamid Mian could either file a fresh complaint or rectify the defects before the Magistrate; if he did so, the Magistrate was to proceed with the complaint in accordance with the law set out in Chapter XVI of the Code.

Holding and Implications

Holding: The court set aside the District Magistrate's order directing the police to submit a charge sheet.

Implications and direct consequences:

  • The District Magistrate's directive to the police to submit a charge sheet was held to be beyond the District Magistrate's power under the Code of Criminal Procedure once a final report had been placed before and disposed of by the Sub-divisional Magistrate empowered to take cognizance; that directive has been set aside.
  • As to the complaint filed by Hamid Mian, the court treated the petition as a complaint under section 200 and found the Sub-divisional Magistrate should have proceeded according to Chapter XVI. The court directed that if Hamid Mian wishes to pursue the matter he must file a properly signed complaint or rectify the defects in the existing petition and vakalatnama; the Magistrate will then proceed to dispose of the complaint in accordance with law.
  • The opinion disposes of the District Magistrate's order in this case and instructs the procedural route the complainant must follow; the judgment does not announce that a new, binding precedent beyond its holding is being established.
Order set aside.

This summary is based exclusively on the content of the provided opinion and does not introduce information beyond that opinion.

Show full summary ...

    Shukadeva Sahay v. Hamid Mian

    Jwala Prasad, J.:— The petitioner is aggrieved by the order of the District Magistrate of Champaran, dated the 26th October, 1927, directing the police to submit a charge sheet against him and two others, Bishunath Upadhya and Baldeo Pasari. The circumstances under which the order of the District Magistrate was passed may be briefly stated as follows:—

    On the 2nd August, 1927, some unfortunate communal riots took place at Bettiah in which one Kari Mian was murdered. During the course of investigation, on the 13th August, 1927, one Hamid Mian was examined by the police under section 161 of the Code of Criminal Procedure. He charged the petitioner along with other persons as having instigated the murder of his father Kari Mian. On the basis of this statement a first information was drawn up by the sub-inspector of police on the 26th August, 1927, against the petitioner and others. After completion of the investigation a report under section 173, usually called the “final report” was submitted to the Sub-divisional Officer of Bettiah. The report disbelieved the version of Hamid Mian that the petitioner instigated the murder in question. It was said that the evidence was tainted and though a certain amount of evidence was found against Bisnunath and Baldeo it was considered insufficient for a charge sheet, and hence a final report under section 302 read with section 149 was submitted under orders of the Deputy Inspector-General of Police. This report was submitted through the superior police officer under section 158 of the Code of Criminal Procedure to the Sub-divisional Officer on the 13th of September. The Magistrate passed the following order on the 14th September:

    “Enter true under section 302. Accused unknown; evidence unreliable.”

    A day before this order of the Magistrate, a petition was filed before the Magistrate on behalf of Hamid Mian impugning the police investigation and praying that

    “In case the police submits final report in the above murder case your honour may in view of the seriousness of the crime be pleased to call, for a charge sheet or be pleased to give opportunity to the petitioner to prove his case by witnesses who are present.”

    The Magistrate disposed of it by reference to his order on petitions in similar cases:

    “vide the order on the other petitions.”

    The order on those petitions has been quoted in the petition of Hamid Mian to the District Magistrate, dated the 29th September, 1927, and runs as follows:

    “This verges on the libellous, especially as it is well known that the Superintendent of Police and Deputy Inspector-General, both Christians, have supervised every detail.”

    Aggrieved by this order of the Sub-divisional Magistrate, Hamid Mian filed an application before the District Magistrate playing that

    “your honour may be pleased to send for the police papers and after hearing the petitioner's Counsel order judicial enquiry into the case or direct the police to submit charge sheet in the case.”

    The District Magistrate acceded to the prayer and, as observed above, directed the police to submit charge sheet.

    Mr. Manuk on behalf of the petitioner contends that the order of the District Magistrate is not only illegal but wholly without jurisdiction. He says that the District Magistrate had no power to direct a charge sheet to be submitted against the petitioner. Sir Sultan Ahmad, on the other hand, contends that the order of the District Magistrate was purely an executive order and is not covered by the Code of Criminal Procedure and that consequently the order is not capable of being challenged on the revisional jurisdiction of this Court. The question raised is very important, and not free from doubt and difficulty. The report in question was submitted to the Sub-divisional Magistrate in the usual and legal way. It was the final report in the case, final in the sense that the investigation had been “completed,” to use the word of section 173. That section requires that the police officer shall submit his final report to the Magistrate empowered to take cognizance of the offence on a police report. These words refer to clause (b), sub-section (1) of section 190 of the Code, which empowers the District Magistrate, Sub-divisional Magistrate and any other Magistrate specially empowered in that behalf to take cognizance of an offence upon a police report. The District Magistrate is the head of a district and is a superior officer so far as the Sub-divisional Magistrate is concerned. The Sub-divisional Magistrate was placed in charge of the sub-division under orders of the local Government under section 13 of the Code. Under section 17(1) the District Magistrate is empowered to make rules or give special orders as to the distribution of business among Magistrates, including the Sub-divisional Officer subordinate to him; but police reports under section 173 are to be submitted to the Sub-divisional Magistrate who had the power to take cognizance of an offence on a police report. The report was accordingly properly placed before the Sub-divisional Officer and legally disposed of by him. He refused to take cognizance of any offence under clause (b) of section 191, accepting the recommendation of the police officer in the report that the case against the petitioner was highly improbable. The report having been once placed before the Sub-divisional Officer and disposed of by him could not be again put up before the District Magistrate. It went to him on account of the petition of Hamid Mian in which he complained of the order of the Sub-divisional Officer refusing to take cognizance of the offence and also not taking action upon his petition of the 13th of August protesting against the police investigation. The District Magistrate in his order says,

    “The main reason given in the final report for not submitting a charge sheet seems to be that there was no special reason why Sukhdeo Sahai, who is a Mukhtear and regarded as one of the local leaders of the Hindus, should instigate a murder of Kari Mian, who was quite an unknown person. The police, however, admit that there was a certain amount of evidence against Bishunath Upadhaya and Baldeo Pasari. This, however, is a case in which as I have remarked one statement was recorded much earlier than in most of the other cases and it is difficult to see how Badar could have begun at that stage to concoct a false case. I think the complainant has good reason for objecting to the final report and for claiming that his case should at least be enquired to by a Magistrate. I, therefore, allow this application and direct that the police submit a charge sheet against Bishunath Upadhaya, Baldeo Pasari and Sukhdeo Sahay.”

    This order virtually sets aside the order of the Sub-divisional Officer passed upon the police report and the petition on behalf of Hamid Mian, dated the 18th September.

    It has been frankly admitted by Sir Sultan Ahmad that there is no provision in the Code of Criminal Procedure for putting up the police report to the District Magistrate in a case of this kind, but he, as the executive head of the district and of the police, has the right to direct a police officer to submit a charge sheet. Calling for a charge sheet in the teeth of the police officers' view that there was no case against the accused amounts to putting the accused to a trial; for in submitting a charge sheet the police officer has to send up an accused or to release him on bail, or to report that he is absconding in which case the Magistrate would take proper action to force his attendance. It seems to me that such an order must be a judicial one as calling upon the accused to take his trial and fettering is liberty, and I do not think that the District Magistrate had the power under the Code to call for a charge sheet after the final report was put up before a Magistrate empowered to take cognizance of the offence under section 173 and disposed of by him. The order of the District Magistrate must, therefore, be set aside.

    The matter, however, does not rest here. The prayers of Hamid Mian before the District Magistrate were (1) to order a judicial enquiry into the case, or (2) to direct the police to submit charge sheet. The District Magistrate did not pass any order with respect to the first prayer, inasmuch as he immediately directed the police to submit charge sheet. That prayer of Hamid Mian must now be considered. It seems to me that the petition of the 13th August filed before the Sub-divisional Officer was a protest petition and came under the definition of “complaint” given in section 4(h) of the Code of Criminal Procedure. “Complaint” means the allegation made orally or in writing to a Magistrate with a view to his taking action against the person who as committed an offence. Mr. Manuk contended that the name of the accused was not mentioned in this petition. This, however, is not imperatively required under the definition Reading the petition it is obvious that it related to the murder case of Kari Mian which was under the investigation of the police and in which a final report was to be submitted. The police enquiry was impugned and a prayer was made to call for a charge sheet, or to give an opportunity to the petitioner to prove his case by witnesses. I hold that this was a complaint under the Code of Criminal Procedure filed under section 200. The Magistrate did not dispose of it in accordance with law. He should have examined the petitioner on oath and disposed of it in accordance with law. The petition, however, purports to be on behalf of Hamid Mian relating to his father Kari Mian's murder during the recent riot. It is initialled at the left-hand corner by Mr. Abdul Wadood, a pleader of Muzaffarpur. To the petition is attached a vakalatnama which is not properly drawn up. Except saying that it is a petition on behalf of Hamid Mian, the name of the actual petitioner is not mentioned. From what has transpired it may be taken to be a petition of Hamid Mian; but it must be properly signed with, a proper vakalatnama. The accused is entitled to ask the complainant to take the responsibility of filing a valid complaint under the Code. It is open to Hamid Mian if he wants to go on with the case to file a fresh complaint or in the presence of the Magistrate to rectify the defects pointed out above. If that is done, then the Magistrate will proceed to dispose of the complaint in accordance with law as laid down in Chapter XVI of the Code of Criminal Procedure.

    Order set aside.

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    Comments

    Shukadeva Sahay v. Hamid Mian
    (Dec 22, 1927)