Abhoy Charan Joddar Accused v. Bangshadhar Mitra Complainant Opposite-Party.

1. Heard the learned advocates for the parties and perused the explanation of the learned Magistrate. In my opinion, this rule must be made absolute.

2. The petition of Banshadhar Mitra on which action was taken by the learned Magistrate complies in every respect with the definition of ‘complaint’ contained in Section 4(h) of the Cr PC. There was thus a complaint filed before the learned Magistrate. The learned Magistrate took cognizance of the complaint under Section 190(1)(a) of the Cr PC. This is quite clear from the fact that the learned Magistrate applied his mind to the complaint, indeed he seemed to have believed the statements made therein, to some extent at any rate, because upon this complaint he passed an order upon the police to treat the complaint as a first information report and take immediate action, he also directed the police to seize the paddy and arrest the culprits. The learned Magistrate having taken cognizance of the offence upon a complaint was in my opinion bound to proceed in accordance with the provisions of one or other of the sections contained in chapter XVI of the Code of Criminal Procedure. The first thing he should have done was to examine the complainant on oath in accordance with the provisions of Section 200 of the Cr PC and thereafter to have decided whether he would issue process against the persons complained against or postpone the issue of process and act under S. 202 of the aforesaid Code. Here the learned Magistrate did neither of these things. He did not examine the complainant but passed an order upon the police to investigate the case, to seize the paddy and to arrest the culprits.

3. On behalf of the opposite party it is suggested that the order was passed in accordance with the provisions of Section 156(3) of the Cr PC. In my opinion, the provisions of law contained in that sub-section of S. 156 have no application when cognizance has been taken upon a complaint. An alternative argument on behalf of the opposite party is that this was not a complaint and that the learned Magistrate took cognizance in accordance with the provisions of S. 190(1)(c) of the Code. I am not prepared to accept that view. As I have stated before the petition of Banshadhar Mitra is a complaint within the meaning of Section 4(h) of the Cr PC, and the Magistrate took cognizance upon that petition. What the powers of the Magistrate would have been bad the petition not been a complaint I am not going to decide. It is a question which is not free from difficulty and it is a question which does not require a decision in view of my finding that the petition of Banshadhar Mitra is a complaint. The view I have taken finds support in Isaf Nasya v. Emperor*, 54 Cal. 303 : (A.I.R (16) 1928 Cal. 24 : 28 Cr. L.J 577). The same view was taken by the High Court of Madras in Arula Kotiah, In re 12 Cr. L.J 463 : (11 I.C 999 (Mad.)). There is a decision by the High Court of Patna in Emperor v. Bhola Bhagat, 2 Pat. 379 : (A.I.R (10) 1923 Pat. 647 : 24 Cr. L.J 375) which seems to take a contrary view. I most respectfully dissent from that view. In these circumstances I set aside the order passed by the learned Magistrate and direct him to treat the petition of Banshadhar Mitra as a complaint, to examine Banshadhar Mitra on oath and thereafter to proceed in accordance with law.

R.G.D

4. Rule made absolute.