Citation Codes

Equivalent Citations

citation codes

Case Number

Criminal Misc. Case No. 39 of 1920

Judges

Jwala Prasad, J.

Acts

Police Act (5 of 1861) or in the General Clauses Act.6.
SECTION 24 POLICE ACT

See more information ...

Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioners challenged an order of the Sub-divisional Officer of Bhagalpur dated 11 December 1919, which summoned them under Section 155, Indian Penal Code (IPC). The challenge alleged the Magistrate had erred and acted ultra vires by failing to examine the complainant on oath under Section 200 of the Criminal Procedure Code (Cr PC) before issuing process.

Facts as recited in the opinion: a riot was said to have occurred on 3 December 1919 on land in which the petitioners had an interest. The Sub‑Inspector of Police of Bhagalpur Mufassil investigated, submitted a charge-sheet in the riot case, and on 9 December 1919 made a separate application to the Magistrate stating the riot had taken place for the petitioners' benefit. The Sub‑Inspector was not examined on oath under Section 200 prior to summons being issued.

The District Magistrate, in a report to the Court responding to a Rule, stated that cognizance had been taken under clauses (b) and (c) of Section 190, Cr PC. The opinion explains clause (c) was inapplicable on the facts and identifies the information relied upon by the Magistrate as having been received from a police officer.

Procedurally, there had been interlocutory steps: the Deputy Magistrate initially ordered a postponement of the present case until the rioting case was disposed of; that order was set aside by the Sub‑divisional Officer on 1 May and the case was ordered to proceed. Subsequent applications to postpone were rejected by the Sub‑divisional Magistrate, but the High Court ultimately directed a stay of the present proceedings until the rioting case is disposed of.

Legal Issues Presented

Whether the application of the Sub‑Inspector (dated 9 December 1919) constituted a "police report" within clause (b) of Section 190, Cr PC, so as to permit the Magistrate to take cognizance without examining the informant under Section 200.
Whether the Magistrate's omission to examine the Sub‑Inspector on oath under Section 200 (if the Sub‑Inspector's application were treated as a "complaint") would vitiate the proceedings or be a mere irregularity capable of cure.
Whether persons who are occupiers/holders of the land alleged to be the site of rioting can be charged under Section 155, IPC (given that Section 155 implies the riot must have been committed by persons other than occupiers/holders).
Whether the proceedings under Section 155 should be postponed until the rioting case is finally disposed of, in order to avoid prejudice and duplication of trials.

Arguments of the Parties

Petitioners' Arguments (as presented by Mr. Sami)

The application of the Sub‑Inspector was not a "police report" within the meaning of clause (b), Section 190, because the term should be limited to reports submitted under Section 173 of the Cr PC concerning cognizable offences by the police.
Section 155, IPC presupposes the rioters are persons other than occupiers/holders of the land; since petitioners 1–3 were occupiers, they could not be charged under Section 155 for the same incident.
Proceeding under Section 155 should be deferred until the rioting case is disposed of to avoid prejudice, especially where the rioting case involves the same facts/parties and is sub judice.

Positions Noted Regarding the State / Police / Magistrate

The Sub‑Inspector investigated the riot, submitted a charge-sheet, and filed an application to the Magistrate asserting the riot had been for the petitioners' benefit.
The Magistrate's order expressly directed prosecution of "all the six men noted in the police report," and the District Magistrate reported that cognizance had been taken under clauses (b) and (c) of Section 190.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
King-Emperor v. Sada	Cited as supporting the view that "police report" in clause (b), Section 190, should be confined to reports submitted under Section 173 (i.e., police reports in cognizable cases).	The Court noted this authority as supporting the petitioners' contention but did not follow that restrictive view; the opinion expressly holds the police application was a police report within clause (b).
Ram Lal v. Emperor	Cited (and described as decided by a single Judge of this Court) in support of the limitation that a police report must be under Section 173 (cognizable cases).	The Court acknowledged this decision as supporting the restrictive view but rejected the limitation and held the Sub‑Inspector's application was a police report under clause (b).
Chidambaram Pillai, In re	Cited as authority supporting the petitioners' contention limiting "police report" to Section 173 reports.	The Court recorded the case as supportive of the restrictive view but ultimately did not adopt that limitation in its interpretation of clause (b).
Sarferaz Khan v. Emperor	Cited as an authority taking the contrary view — that "police report" is not so limited to Section 173 or to cognizable cases.	The Court referenced this case as belonging to the group of High Court decisions adopting the broader meaning; the Court's own analysis aligned with that broader interpretation.
Nga Saw Ke v. Emperor	Cited as a contrary authority (following the Calcutta decision in King-Emperor v. Nga Thaung) rejecting the limitation on "police report."	The Court treated it as part of the contrary body of authority and used the existence of these conflicting decisions to note the divided judicial opinion; the Court sided with the broader view.
King-Emperor v. Nga Thaung	Referred to as an earlier case followed by later decisions that broadened the meaning of "police report."	Noted by the Court as part of the jurisprudential context supporting a non-restrictive meaning of "police report." The Court's interpretation is consistent with that trend.
Harihar Roy v. Emperor	Cited as one of the authorities taking the broader view that "police report" is not confined to reports under Chapter XIV or to cognizable cases only.	The Court recorded this authority as part of the contrary body of decisions considered in arriving at its interpretation; the Court aligned with the broader view.
Bhairab Chandra Barua v. Emperor	Cited as another decision supporting the broader meaning of "police report."	The Court considered this among the decisions taking a non-restrictive approach and treated it as supporting the view adopted in the opinion.
Emperor v. Heman Gope	Cited for the principle that omission to examine an informant under Section 200 (where required) may be a mere irregularity and not necessarily vitiate proceedings; such irregularity can be cured by subsequently examining the witness on oath.	The Court relied on this authority as an alternative ground: even if the Sub‑Inspector's application had been treated as a "complaint" and Section 200 omitted, that omission would be an irregularity capable of cure — reinforcing that petitioners' challenge could fail on that basis as well.

Court's Reasoning and Analysis

The Court's analysis proceeds in logical steps, grounded in the wording of the Cr PC and the Police Act, and in the interplay between Chapter XIV (information to the police) and the Police Act:

The Court first set out the relevant statutory scheme:
- Section 190 permits cognizance (a) upon a complaint, (b) upon a police report, or (c) upon information from any person other than a police officer or upon the Magistrate's own knowledge or suspicion.
- Section 4(h) defines "complaint" and explicitly excludes a police officer's report from that definition; the exclusion prevents the application of Section 200 (which requires examining a complainant on oath) to police reports.
It explained Chapter XIV: information to the police may concern cognizable offences (registered as FIRs under Section 154) or non‑cognizable offences (noted in the Station Diary under Section 155). Police investigation and reporting duties arise under Chapter XIV and culminate in a report under Section 173 (which, the Court notes, may arise from investigation of both cognizable and magistrate‑directed non‑cognizable cases).
The Court addressed the core question whether a police officer can make a report outside Chapter XIV: Section 24 of the Police Act (Act 5 of 1861) authorizes any police officer to lay information before a Magistrate and apply for process. The Court reasoned that such an action under Section 24, when a police officer submits information and applies for action, effectively constitutes a police report within the meaning of clause (b) of Section 190.
From that statutory reading the Court concluded:
- There is no textual limitation in clauses 4(h) or 190(b) restricting "police report" to reports under Chapter XIV or to reports of cognizable offences under Section 173.
- Accordingly, the Court refused to import a limitation into clause (b) that the legislature did not express.
Applying this test to the Sub‑Inspector's application of 9 December 1919, the Court held that the application sufficiently stated facts prima facie disclosing an offence and therefore constituted a "police report" under Section 190(b). As a result, the Magistrate properly took cognizance under clause (b) and was not required to examine the Sub‑Inspector under Section 200.
The Court also considered the alternative: if the Sub‑Inspector's application were treated as a private complaint under Section 4(h), the omission to examine on oath under Section 200 would be an irregularity rather than a fatal defect. The Court relied on prior authority (including Emperor v. Heman Gope and some Calcutta High Court decisions) to hold that such irregularity could be cured by subsequently examining the Sub‑Inspector on oath, especially as the case was at an initial stage.
Finally, on the question of prejudice and trial management, the Court accepted the practical risk of prejudice to accused persons (particularly occupiers 1–3) if the Section 155 matter proceeded concurrently with the rioting trial that was sub judice. Noting interlocutory orders and the ongoing rioting trial, the Court concluded that, in the interests of justice and to avoid serious prejudice and duplication, the Section 155 proceedings should be postponed until the rioting case is disposed of.

Holding and Implications

Holding:

The Court held that the Sub‑Inspector's application of 9 December 1919 was a "police report" within the meaning of clause (b), Section 190, Cr PC; consequently, the Magistrate lawfully took cognizance under Section 190(b) and was not required to examine the Sub‑Inspector on oath under Section 200 before issuing process. However, in the exercise of discretion to prevent prejudice and avoid duplication of trials, the Court ordered that the present proceedings be postponed until the disposal of the rioting case and directed a stay of the Section 155 proceedings.

Implications / Consequences:

The immediate and direct effect on the parties: the Section 155 proceedings against the petitioners are stayed and must be postponed until the rioting case is finally disposed of.
On the core statutory interpretation question, the Court adopted a broad construction of "police report" in Section 190(b), holding that police reports are not restricted to reports submitted under Chapter XIV (Section 173) or to cognizable cases only; the opinion thus rejects the narrower view urged by the petitioners' authorities.
The Court also observed an alternative remedial point: even if the narrower view were accepted, the omission to examine under Section 200 would amount to an irregularity curable by subsequent examination on oath (as recognized in earlier authorities cited in the opinion).
The opinion does not expressly state that it creates a binding new precedent beyond the instant decision; it sets out the Court's statutory interpretation and applies it to the facts to support the Magistrate's taking of cognizance, while ordering postponement of proceedings on practical and prejudice grounds.

Disposition

Proceedings stayed.

End of summary based strictly on the text of the provided opinion.

Show full summary ...

Abdul Ali And Others Accused v. Emperor Opposite Party.

1. The petitioners have; moved this Court against an order of the Sub-divisional Officer of Bhagalpur, dated 11th December, 1919, summoning them under S. 155, I.P.C, and contend that the order is bad in law and ultra vires on account of the omission on the part of the Magistrate to examine the complainant on oath under Section 200 of the Cr PC, before issuing processes against the accused.

2. The Sub-Inspector of police of Bhagalpur Mufassil investigated into a riot said to have been committed on 3rd December, 1919 on some land in which the petitioners are said to have been interested and ultimately submitted a charge sheet, in that case. He made a separate application to the Magistrate on 9th December, 1919 stating that the riot had taken place for the benefit of the petitioners, who claimed interest in the subject matter of the dispute. The Sub-Inspector was not examined on oath under S. 200 before summoning the accused. The District Magistrate in his report submitted to this Court in answer to the Rule issued upon him, says that cognizance was taken under Cls. (b) and (c), Section 190 of the Cr PC. Cl. (c) has obviously no application. In the order in question, dated 11th December the Magistrate expressly orders the prosecution of “all the six men noted in the police report.” Therefore the information upon which the Magistrate summoned the accused was clearly received from a police officer, which is expressly excluded from S. 4(h). The Magistrate nowhere says that he instituted the proceedings upon information received from any person other than a police officer or upon his own knowledge or suspicion regarding the commission of the offence, in respect of which the accused were summoned by him. This is a necessary condition for taking cognizance under Cl. (c). The Magistrate did not comply with S. 191, namely, to inform the accused that they were entitled to have the case tried by another Court as is required on cognizance having been taken under Cl. (c). This also shows that the Magistrate did not take cognizance under that clause.

3. As to Cl. (b), Mr. Sami contends on behalf of the petitioners that the application of the Sub-Inspector was not a police report within the meaning of the term in that clause, which must be limited to a police report submitted under S. 173 of the Code with respect to an offence cognizable by the police. It is urged that the offence under S. 155, I.P.C, disclosed in the application of the; Sub-Inspector is not a cognizable one by the police. The Sub-Inspector had no power to investigate that offence, or to submit his report thereon which might fitly be called a police report. In this contention Mr. Sami is undoubtedly supported by the Full Bench case of King-Emperor v. Sada(1) and Ram Lal v. Emperor(2) decided by a single Judge of this Court. He is also supported by the case of Chidambaram Pillai, In re(3). The Allahabad High Court and the Burma Chief Court, and recently the Calcutta High Court, have taken a contrary view; vide, Sarferaz Khan v. Emperor(4), Nga Saw Ke v. Emperor(5) following an earlier case of the same Court in King-Emperor v. Nga Thaung(6), Harihar Roy v. Emperor(7), Bhairab Chandra Barua v. Emperor(8). The Full Bench decision of the Bombay High Court and the other authorities were considered in the last two cases of the Calcutta High Court referred to above.

4. The Bombay and Madras cases would confine the police report referred to in Cl. (b) to the police report submitted in cognizable cases under S. 173 of the Code. The other High Courts would not place any such limitation and would not confine them only to reports under Ch. 14 of the Code, far less to reports in cognizable cases only. The opinion therefore seems to be equally divided and it is therefore a difficult task to decide which view is correct.

5. The difficulty has been enhanced by the absence of definition of the words “police report” either in the Code of Criminal Procedure or in the Police Act (5 of 1861) or in the General Clauses Act.

6. Under S. 190 cognizance may be taken (1) upon a complaint of facts, which constitute such offence, (2) upon a police report of such facts, (3) upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed.

7. All offences cognizable by a Magistrate must therefore come within one or other of the aforesaid clauses.

8. When cognizance is taken under Cl. (a) upon a complaint, the Magistrate is required to examine the complainant on oath under S. 200 before taking action upon the complaint.

‘Complaint’ has been defined in S. 4(h) as meaning the allegation made orally or in writing to a Magistrate with a view to his taking action under the Code that some person has committed an offence, but it does not include the report of a police officer. The object of excluding police report from the definition of complaint is, obviously, to exclude it from the operation of S. 200 of the Code and to obviate the necessity of examining the police officer before taking action upon his report.

9. Now Ch. 14 of the Code deals with information to the police and their power to investigate. Such an information to the police may be of a cognizable offence or of a non-cognizable offence. When the information relates to a cognizable case, it has to be reduced to writing in the from prescribed by the Code called “First Information Report” (S. 154). In the case of non-cognizable offences substance only of the information is to be entered in the Station Diary (S. 155).

10. The police is bound to investigate into the information relating to the commission of a cognizable offence. He is not required to investigate a non-cognizable offence unless he is directed to do so by an order of the Magistrate and, when so directed, he is bound to investigate the same just as a cognizable offence: Cls. 2 and 3, S. 154. In either case, when the police officer makes investigation under Ch. 14, he is required to submit to the Magistrate a report under S. 173 in the form prescribed by the Local Government. The report under S. 173 may be of a cognizable offence or of a non-cognizable offence when the police officer is directed by the Magistrate to investigate it. The Magistrate will therefore be competent under S. 190(b) to take cognizance of an offence upon a police report relating to a non-cognizable offence, for S. 137 is not confined only to reports in cognizable cases. Power of a police officer to investigate and submit his report under S. 173 is the same in cognizable and non-cognizable cases, the only distinction being that in the latter case, he must have received order of the Magistrate to investigate into it.

11. The view taken in the Bombay and Madras cases and in the case of this Court Ram Lal v. Emperor, that a report of the police must necessarily be of a cognizable case under S. 173, does not appear to be borne out by the aforesaid provision in Ch. 14.

12. The question then is whether a police officer can make any report outside the provision of Ch. 14 of the Code. The chapter deals with the reports upon the information lodged to the police, as the heading of that chapter and Ss. 154 and 155 clearly indicate. But is the action of police confined only to an information lodged before him, or can he investigate into offences on his own initiative, or without any information lodged by any person? Every police officer is under Act 5 of 1861, a member of the police force and the word “police” is therefore defined in S. 1 to include all persons enrolled under the Act. The duties of a police officer have been defined by that Act and not by the Code of Criminal Procedure. The Code deals with the duties of police only so far as they relate to investigation of offences under the Code. Section 24 of the Act lays down:

“It shall be lawful for any police officer to lay any information before a Magistrate and to apply for a summons, warrant, search warrant or such other legal process as may by law issue against any person committing an offence.”

13. This duty of laying information and of moving the Court for action is irrespective of any information lodged to the police by any person referred to in Ch. 14, Code of Criminal Procedure. Now, when police officer acts under Section 24 of the Police Act, and submits his information, regarding the commission of the offence to the Magistrate and applies for action to be taken thereon, does it not become a report of that office? It would seem to me that the answer must be in the affirmative. The report of the police is, therefore not restricted only to reports under Ch. 14 upon information lodged to the police, but embraces all reports by the police submitted under S. 24 of Act. This is also borne out by the fact that neither in Cl. 4(h), excluding the police report from the definition of “complaint” nor in Cl. (b), S. 190, empowering the Magistrate to take cognizance upon a police report, it is expressly said that such a report must be a report under Ch. 14 of the Code or report only of a cognizable offence. We cannot restrict the meaning of “police report” and to my mind we have no right to do so by reading into Cl. (b), S. 190, or in Cl. (h), S. 4, words that are not there. The legislature thought it desirable to leave it unrestricted and we must interpret the law as it is.

14. The word “report” in Cl. (b) is designed to distinguish it from a complaint or information lodged by a private person before a Magistrate. Complaint by a private person to a Magistrate comes under Cl. (a) and information by the private person to a Magistrate comes under Cl. (c). A report to a Magistrate by the police comes under Cl. (b). The only limitation laid upon the report is that it must state facts which constitute an offence. Applying this test to the application of the Police Sub-Inspector, dated 9th December, 1919, which I so far purposely refrained from calling a police report, I have no doubt that it states facts which prima facie disclose an offence against the petitioners, and, with great respect to the opinion of the learned Judges who have taken a contrary view, I hold that the said application of the Sub-Inspector is a police report within, the meaning of the term in Cl. (b) of S. 190, and that the cognizance was properly taken by the Magistrate under that clause. The Magistrate was therefore not required to examine the Sub-Inspector before issuing processes against the accused. In this view no question of the irregularities arises and the contention of the learned counsel on behalf of the petitioners must fail.

15. If, on the other hand, the report of the police officer was not a report within the meaning of Cl. (b), S. 190, and was only a complaint under S. 4(h) of the Code, the omission to examine the Sub-Inspector under S. 200 was a mere irregularity and would not vitiate the proceedings against the petitioners, as held in the two recent decisions of the Calcutta High Court referred to above and also by this Court in the case of Emperor v. Heman Gope(9). The in-regularity, if any, can even now be cured by examining the Sub-Inspector on oath and taking action thereon as the case is at its initial stage.

16. It has also been urged before me that petitioners 1, 2 and 3 are the occupiers of the land in question, on which I the riot is said to have taken place, and have been sent up for trial for the offences connected with the riot, and hence they could not be charged with an offence under S. 155, I.P.C, inasmuch as that section implies that the riot must have been committed by persons other than the occupiers and holders of the land. This is a matter for consideration by the Magistrate, who has got seizin of the case. Another objection has been raised that the case under S. 155 should not be tried until the disposal of the riot case. This contention is twofold. Firstly, that it has not yet been established that the riot had taken place upon the land and so the petitioners could not be prosecuted for an offence under S. 155, and secondly, that the petitioners, particularly 1, 2 and 3, will be prejudiced in their defence in this case so long as the rioting case is not disposed of.

17. It appears to me that the Deputy Magistrate, Mr. Dutt, on 22nd January, 1920, upon the application of the Court Sub-Inspector ordered the present case to be postponed till the disposal of the rioting case. This order was however set aside by the Sub-divisional Officer on 1st May, and the case has been ordered to proceed. On 10th May, 1920, an application was made on behalf of the accused, similar to that made by the Court Inspector on 22nd January. The Sub-divisional Magistrate has rejected this petitions well, and the reason given for not acceding to the prayer of both the parties, the case would then be inordinately delayed. There is some force in the contention of Mr. Sami that the riot, which is sub-Judie, must be established before the case under S. 155 can proceed, and, also that the accused would be seriously prejudiced in defending themselves in this case, so long as the riot case is not disposed of and that accused 1, 2 and 3 would be still more prejudiced and inconvenienced in defending themselves simultaneously in both the cases. I understand the trial of the rioting case has already commenced and witnesses are being examined and will, I hope, be finished within a reasonable time.

18. For all these reasons, I think, that this case must be postponed till the disposal of the rioting case, and I accordingly direct the stay of this case.

V.S/R.K

19. Proceedings stayed.

Abdul Ali And Others Accused v. Emperor Opposite Party.

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (as presented by Mr. Sami)

Positions Noted Regarding the State / Police / Magistrate

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

Abdul Ali And Others Accused v. Emperor Opposite Party.

Comments