Mangu Koeri Accused v. Emperor Opposite Party.

1. The petitioner has been convicted by the Deputy Magistrate of Colgong with 3rd Class powers under S. 16 of the By-Laws of Colgong Municipality and sentenced to pay a fine of Rs. 10. On appeal the conviction was sustained but the fine was reduced to Rs. 5.

2. The prosecution of the petitioner was started on the report of the overseer of the Municipality, and the first point that has been argued before me is that the conviction is liable to be set aside inasmuch as cognizance was not taken under one or other of the clauses of Section 190 of the Cr PC. It is of course beyond doubt that cognizance may be taken in one of three ways:

(1) Upon receiving the complaint of facts which constitute such offence;. (2) upon police report of such facts; and (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.

3. The report of the overseer upon which the prosecution was started is clearly not a police report. It was suggested that the information was in prescribed form in pursuance of Section 365 of the Bengal Municipal Act, and therefore (if I have understood the argument a right) there port of the overseer became, by virtue of S. 365, a police report. In my opinion, there is no substance in this contention. S. 365 lays down that, provided all the formalities are complied with, a servant of the Municipality in receipt of a salary of not less then Rs. 10 per mensem, may exercise the powers of a police officer under that section. I have no doubt that all the formalities have been complied with and therefore the overseer, by virtue of Section 365 of the Bengal Municipal Act, could exercise the powers of a police officer under the section; but it must be remembered that the petitioner was charged with a non-cognizable offence, and it has been laid down in the Full Bench case of King Emperor v. Sada(1):

“that there is no section in the Code of Criminal Procedure, 1898, which empowers the police officer to make of his own motion any report to a Magistrate in a non-cognizable case; hence, where he files a formal complaint in such a case, he cannot be said to ‘make a report’ and his complaint falls within the definition of ‘complaint’ in Section 4(h) of the Cr PC, 1898.

4. Therefore the report cannot be said to be a police report. Nor can it be said that the Magistrate took cognizance upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence had been committed. If he did take cognizance under this head it was his duty to inform the petitioner that he was entitled to have the case tried by another Court and the fact that he did not so inform the petitioner shows clearly that he did not take cognizance under Section 190(1)(c) of the Cr PC.

5. It appears to me that he did take cognizance upon receiving the complaint of facts which constituted such offence. It is admitted that he did not examine the overseer or any other person on oath as required by Section 200 of the Cr PC, and the question which I have to determine is whether the failure to examine the complainant on oath is merely an irregularity and therefore curable by Section 537 of the Cr PC.

6. An unreported decision of Jwala Prasad, J., in the case of Saheb Tewari v. Emperor(2) was relied upon by the Assistant Government Advocate for the proposition that the failure to examine the complainant on oath does not vitiate the criminal proceedings. The learned Judge, although he was of opinion that the examination of the complainant on oath was a very valuable safeguard that the legislature has provided and must be scrupulously observed and insisted upon, did say in the course of his judgment:

“But it has been held by almost all the High Courts that an omission to examine the complainant will not render the trial null and void, and that it is an irregularity which is covered by Section 587 of the Cr PC. The rulings reported as Queen-Empress v. Mona(3), Girdhari Lal v. Emperor(4) and Queen-Empress v. Murphy(5) support the view.”

7. I propose to examine the authorities with a view to see whether there is any justification for the observation of the learned Judge that it has been held by almost all the High Courts that a failure to examine the complainant will not render the trial null and void.

8. No doubt the view taken in the case reported as Queen-Empress v. Mona, was that the failure to examine the complainant under S. 200 was only an error of procedure and so far as I know, that case has never been followed in any other case in Madras. The case reported as Queen-Empress v. Murphy was considered in the later case of Kesri v. Muhammad Bakhsh(6). Referring to the case of Queen-Empress v. Murphy, the learned Judges say:

“With all due respect to the learned Judge who decided that case, we are of opinion that the legislature does require that every complainant shall, as soon as he has prevailed upon the Magistrate to take cognizance…. be examined upon oath.”

9. I do not think that it can be said that the Allahabad High Court took the view that a failure to examine the complainant is a mere error of procedure, when we find a later case of that Court not following the earlier decision of that Court. The case of Girdhari Lal v. Emperor is a decision of the Punjab Chief Court and was based upon the earlier decision of the Allahabad High Court. It seems to me that it is not correct to say that it has been held by almost all the High Courts that a failure to examine the complainant will not render the trial null and void.

10. In the case of Satya Charan Ghose v. Chairman of the Utterparah Municipality(7) the High Court came to the conclusion that upon receipt of a petition of a complaint it was the duty of the Magistrate, as directed by the Code of Criminal Procedure to examine the complainant on oath. In the case of Lokenath Patra v. Sanyasi Charan Manna(8) the High Court came to the conclusion that a Magistrate has no jurisdiction to deal with the case or dismiss it under Section 203 of the Cr PC, without complying with the requirements of the law as laid down under Ss. 200 and 202 of that Code. So far as this Court is concerned, it was laid down in the case of Jhuna Lal Sahu v. Emperor(9) that it is not open to the Court to take cognizance of a complaint without first examining the complainant on oath.

11. It seems to me, on a reading of Section 200 of the Cr PC, that the cognizance of an offence by the Magistrate on complaint is not complete until he has examined the complainant on oath. Section 190 of the Cr PC, lays down the conditions requisite for initiation of proceedings and, in my opinion, must be read with S. 200 of the Code. It cannot be argued that a Magistrate has taken cognizance of an offence just because some person has thrown on the table a petition of complaint of facts which constitute such offence. The prosecution of the petition is the act of the party and not the act of the Court. The only way in which the Court can indicate that it takes cognizance of the complaint is by at once examining the complainant on oath. Until that is done, in my opinion, cognizance of the offence has not been taken by the Court. But there is one case of this Court, the case of Phagu Sahu v. Emperor(10), which lays down that where a Magistrate on receipt of a complaint issued processes before examining a complainant on oath as required by Section 200 of the Cr PC, 1898, but it was not shown that the accused had been in any way prejudiced by the irregularity, the conviction of the accused should not be set aside on account of the irregularity, which was covered by S. 537 of the Code. The learned Judges in the course of their judgment say:

“The learned vakils for the applicants have been unable to refer us to any case in which a Court has, in similar circumstances, set aside a conviction on account of failure of the Magistrate to examine the complainant and when the complaint was made.”

12. It seems to me that if the learned vakil had cited the cases to which I have referred, the decision might have been the other way. In any case sitting as a single Judge I am bound to follow the latest decision of this Court which is to be found in to Patna Law Journal, p. 657 [Jhuna Lal Sahu v. Emperor]. It seems to me that the legislature has said as plainly as it knows how to say that the examination of the complainant is not a mere formality. It must be remembered that it is on the result of the examination of the complainant that the machinery of the criminal Court is put in motion, and, in my opinion, we are bound to give effect to the glain meaning of the section. I hold that the failure to examine the complainant on oath vitiated the entire proceedings.

13. I would therefore set aside the conviction of the petitioner and direct that the fine, if paid, be refunded. If having regard to the importance of the case the District Magistrate thinks it necessary to proceed further, it is open to him to proceed according to law.

V.S/R.K

14. Conviction set aside.