Chunder, J.:— This Rule was issued at the instance of accused persons, a petition of complaint against whom has been ordered to be enquired into by Mr. M.L Chakravarti, Sessions Judge of Midnapore.
The facts are very simple. The accused along with others were restrained by the Magistrate by an order under s. 144 of the Code of Criminal Procedure from going upon a particular plot of land. They not only disobeyed the Magistrate's order and did go upon the land but they did something further with which the Magistrate's order had no concern, namely, they stole the crops of the complainant. This is the allegation. On this allegation the complainant filed a petition charging the accused with an offence under s. 379 of the Indian Penal Code. The Magistrate purporting to follow a decision of my learned brother Mr. Justice Sen in the case of Osman Mistry v. Atul Krishna Ghosh(1), held that he had no jurisdiction to proceed with the case of theft as the accused also disobeyed the Magistrate's order by committing trespass with which they were not charged and which was not an ingredient of the offence of theft. On revision the learned Sessions Judge has set aside that order and directed further enquiry.
After hearing Mr. Das Gupta we consider that the learned Sessions Judge was wholly right. The learned Judge has pointed out that the two decisions of this Court, one by a Division Bench and the other by my learned brother Sen, J., are no authority really for what has been done by the Magistrate. In the first case which was that of the Division Bench in the case of Ibrahim v. Emperor(2), an offence under s. 471 of the Indian Penal Code was committed and that required sanction. The offence was whittled down or reduced to one under s. 474 of the Indian Penal Code to bring it within the jurisdiction of the Magistrate and filed without complaint of proper authority. Whittling down of offences by Magistrates to assume jurisdiction has in repeated instances been condemned by all the High Courts and, if the whittling down was in order to avoid a bar under s. 195 of the Code of Criminal Procedure, it really amounted to a trick played upon law and that is why the Division Bench condemned such a procedure and said that the bar of s. 195 of the Code could not be got rid of by reducing or whittling down offences like this. In the present case there is no such consideration. On the other hand, s. 379 of the Indian Penal Code, as has been rightly pointed out by the learned Judge, may be considered a graver offence than s. 188 of the Indian Penal Code; at least the punishment is heavier.
The next case is that of my learned brother Mr. Justice Sen. In that case as the report itself shows both parties were injuncted by the Magistrate. Therefore, as has been pointed out towards the close of the judgment, there could be no case of theft at all. What was done was that the trespass of the accused persons upon the land in disobedience of the Magistrate's order was complained of as theft and a petition was filed charging an offence of theft. If we remember this carefully then it is easy to see that Mr. Justice Sen on the particular facts of the case was wholly right in saying that the bar under s. 195 of the Code of Criminal Procedure could not be got rid of in this way by describing an offence requiring a sanction as some other offence which it definitely was not. It must be said that there is nothing in the decision which shows that Mr. Justice Sen meant that if one particular circumstance in the whole case is an offence requiring a complaint under s. 195 of the Criminal Procedure Code then however grave the other offence committed may be as shown by the other facts and circumstances the Magistrate loses his jurisdiction because of s. 195 of the Code. Any such view would not be a tenable view. A man may be injuncted by a Police Order under s. 144 of the Code from going with five or six persons through the streets of Calcutta and if that order is violated by a body of hooligans and they commit mass murders, then in the interpretation that is now sought to be put upon Mr. Justice Sen's decision, the Magistrate would be precluded from going into the case of mass murder simply because of the violation of the order of the Commissioner of Police which is also an offence under s. 188 of the Indian Penal Code. The present case is a good illustration. Theft has nothing to do with trespass. Even if there had been no order by the Magistrate under s. 188 of the Indian Penal Code the offence would still be theft in the present case for taking away the complainant's crop if the facts are proved. The Magistrate's order of injunction is no element required to be proved in establishing the offence. On the other hand, in the decision given by Mr. Justice Sen, as we have pointed out, there being no case of theft at all (as the judgment itself pointed out) it was merely an indirect way of getting over the bar of s. 195 of the Code of Criminal Procedure. Where an offence is genuinely an offence under some other section there is no authority of this Court for holding that simply because some of the facts might constitute another offence requiring a complaint under s. 195 of the Code of Criminal Procedure, a cognizance of the offence committed which required no sanction is not justifiable. The argument based upon Mr. Justice Sen's decision cannot be accepted as correct. If we bear in mind the fact that in that particular case in view of the injunction on both parties there could have been no offence of theft committed (as was pointed out by Mr. Justice Sen) and it was a deliberate attempt to get rid of the bar of s. 195 of the Code of Criminal Procedure by ruse. Mr. Justice Sen really considered it a case of describing one offence as some other different offence merely to give the Magistrate a jurisdiction. Mr. Justice Sen's decision to me does not seem to authorise any view that a genuine offence committed for which complaint under s. 195 is not required cannot be taken cognizance of by the Magistrate simply because the accused has also committed another distinct offence of disobeying the Magistrate's order. All that Mr. Justice Sen's decision was meant for was to prevent trickery with the Courts in order to get over the difficulty of a complaint under s. 195 of the Code of Criminal Procedure.
The Sessions Judge, therefore, took the right view of the case and his order for further enquiry was proper. The Rule is discharged.
The enquiry may now proceed.
Rule discharged.
S.K.D