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Bhairab Chandra Barua Accused, v. The King-Emperor Opposite Party.
Structured Summary of the Provided Opinion
Factual and Procedural Background
The Petitioner lodged information with the police alleging a dacoity in his house. After investigation, the police submitted a report to Mr. Majid, the senior Deputy Magistrate of Jalpaiguri, stating that the case was false and recommending prosecution of the Petitioner for making a false charge under section 211, Indian Penal Code. The report purported to be a report under section 173, Criminal Procedure Code.
On receipt of the report (22 July 1918), Mr. Majid called upon the Petitioner to show cause why he should not be prosecuted under section 211, I.P.C. On 3 August 1918 Mr. Majid made over the matter to Mr. Hollow, another Deputy Magistrate, for disposal of the show-cause proceeding. Mr. Hollow examined witnesses produced by the Petitioner and concluded the original charge was false and recommended prosecution. Mr. Majid accepted that recommendation and on 15 September 1918 issued an order summoning the Petitioner to answer a charge under section 211, I.P.C.
The Petitioner challenged that order by obtaining a Rule (a writ) calling upon the Deputy Commissioner of Jalpaiguri to show cause why Mr. Majid's order should not be set aside. The Rule was supported before the Court by Mr. Pugh on behalf of the Petitioner.
Legal Issues Presented
- Whether the report of a police officer disclosing the commission of a non-cognizable offence (here, an alleged false charge under s.211, I.P.C.) is a "police report" within the meaning of section 190(1)(b) of the Criminal Procedure Code or a "complaint" within the meaning of section 4(1)(h) of the Code (the opinion in Harihar Roy v. The King-Emperor had considered this question).
- Whether a Magistrate may take cognizance of an offence disclosed by such a report and issue process thereon, and if the Magistrate fails to examine the complainant on oath before issuing process (where the report is treated as a complaint), whether that omission is jurisdictional or merely an irregularity.
- Whether the procedure of calling upon the maker of the original charge to show cause (and referring that show-cause proceeding to another Magistrate for hearing) is permissible and whether that procedure—particularly where a senior Magistrate later issues process after a junior Magistrate's recommendation—affects the jurisdiction of the Magistrate who issued the summons (including questions as to transfer of seisin and compliance with provisions such as section 528 and section 202, Cr. P.C.).
Arguments of the Parties
Petitioner's Arguments (as presented by Mr. Pugh)
- The police report recommending prosecution was not a "police report" within the meaning of section 190(1)(b), Cr. P.C., because that section contemplates police reports in cognizable cases and an offence under section 211, I.P.C., is non-cognizable; therefore the Magistrate was not competent to take cognizance of the case on such a report.
- Reliance was placed on the Full Bench decision of the Bombay High Court in King-Emperor v. Sada, which held that where a police officer, of his own motion, makes a report in a non-cognizable case, it is not a "police report" for the purposes of the Code (and related authorities from Madras High Court in Pillai v. Emperor were cited).
- It was argued that because the matter was made over to Mr. Hollow for disposal, Mr. Hollow alone had seisin of the proceedings and Mr. Majid had no jurisdiction thereafter to direct the issue of summons without a formal order of transfer conforming to section 528, Cr. P.C. If the order to Mr. Hollow had been an order under section 202, Cr. P.C., authority such as Hari Charan v. Giris Chandra would support the contention.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Harihar Roy v. The King-Emperor | Considered whether a police officer's report disclosing a non-cognizable offence is a "police report" under s.190(1)(b) or a "complaint" under the Code; held it must be one or the other. | The Court relied on that conclusion to hold that the Magistrate had jurisdiction to take cognizance of the non-cognizable offence disclosed in the police report; also to treat the omission to examine the complainant (if the report were a complaint) as an irregularity not affecting jurisdiction. |
| Queen-Empress v. Sham Lal (Full Bench) | Held that prosecution for making a false charge should not be commenced until the original charge has been dismissed or abandoned; before ordering prosecution for the false charge, the maker of the original charge should be offered an opportunity to support or abandon it; a Magistrate should not take cognizance under s.211 until the alleged offender has had opportunity to substantiate the original charge and the original charge has been disposed of in due course of law. | The Court treated the practice of calling on the maker to show cause before prosecuting for a false charge as consistent with the Full Bench guidance and concluded that giving such notice does not render the Magistrate acting without jurisdiction. |
| King-Emperor v. Sada (Bombay Full Bench) | Held that when a police officer of his own motion makes a report in a non-cognizable case it is not a "police report" within the Code's meaning, because the Code contemplates police reports in particular contexts tied to police duty; such reports beyond those occasions fall within the definition of "complaint". | Cited by Mr. Pugh to argue the Magistrate lacked competence; the Court addressed this authority but observed that even if the report were not a "police report" it would fall within the definition of "complaint" and the Magistrate could take cognizance under s.190(1)(a). |
| Pillai v. Emperor (V.O. Chidambaram Pillai) | Held that a report of a police officer must be some statement made in connection with, or under colour of, his duty as a police officer to qualify as a police report. | Referred to in support of the contention that extraneous police reports in non-cognizable matters may be complaints; the Court noted the decision but did not treat it as decisive for the outcome. |
| Dilan Singh v. Emperor | Two Judges of the Court had taken a view that a police report such as in the present case is not a "complaint" as defined in the Code, because the definition expressly excludes a report of a police officer. | Mentioned as a contrasting view; the Court observed the point but noted the question was not directly raised in that case, so it did not press the authorities strongly against its conclusion in the present matter. |
| Gangadhar Prodhan v. Emperor | Decision of Chapman and Walmsley, JJ., referenced (context: treatment of police reports and complaints). | Cited among authorities; the Court stated that if necessary it might not be greatly influenced by those decisions because the point was not directly raised in the cited cases. |
| Tayabullah v. King-Emperor | Cited by the Petitioner in support of his rule; also referred to in relation to the proposition that the practice followed in some cases is fair but not regulated by any express Code provision (and so does not affect jurisdiction). | The Court observed that Tayabullah was not directly applicable to the present order because the order complained of was neither under s.195 nor under s.476; later, the decision was cited to show that the fair practice adopted does not affect the original Magistrate's jurisdiction. |
| Hari Charan v. Giris Chandra | Authority concerning the effect of orders under section 202, Cr. P.C., and the consequences for transfer/seisin. | The Court noted that if the order had been an order under s.202, the petitioner's contention regarding seisin and transfer might have been well-founded; but it concluded the order was not in form or effect an order under s.202. |
| Sarba Mahton v. Emperor | Stated that a procedure adopted for fairness (such as calling upon a person to show cause) may not be found in the Code and that adoption of such procedure cannot affect the jurisdiction of the Magistrate who took cognizance. | The Court invoked this reasoning to conclude that the practice of having another Magistrate inquire (as happened here) does not deprive the original Magistrate of jurisdiction to summon the accused and proceed with trial. |
Court's Reasoning and Analysis
The Court's reasoning proceeded along two principal lines: (1) the legal character of the police report in relation to the Criminal Procedure Code's provisions concerning "police report" and "complaint," and (2) the effect of the intermediate show-cause proceeding conducted before another Magistrate on the jurisdiction of the senior Magistrate who ultimately issued the summons.
On the first point the Court (following the approach in Harihar Roy v. The King-Emperor) treated the question whether a police officer's report in a non-cognizable case is a "police report" under s.190(1)(b) or a "complaint" under the Code. The Judges observed that the report must be either one or the other. If it is a police report within s.190(1)(b), the Magistrate clearly had power to issue process. If it is instead a complaint, then the omission to examine the complainant on oath before issuing process (i.e., not complying with s.200 procedure) constitutes an irregularity only and does not deprive the Magistrate of jurisdiction. The Court therefore characterized failure to examine the complainant as not going to the root of jurisdiction and thus not warranting interference in revisional jurisdiction simply on that ground.
On the second point the Court considered the intermediate procedure adopted: Mr. Majid called upon the Petitioner to show cause and made over that show-cause proceeding to Mr. Hollow, who examined witnesses and recommended prosecution. The Court examined the Full Bench decision in Queen-Empress v. Sham Lal and extracted its guidance that, in cases where an accused is said to have made a false charge, the maker of the original charge should be afforded an opportunity to support or abandon it before prosecution for a false charge is ordered. The Court treated the giving of such notice and the holding of a show-cause hearing as a fair practice which, although not expressly sanctioned by the Code, is not an exercise without jurisdiction. The Court further held that even if the show-cause proceedings were void or irregular, that would not affect the Magistrate's underlying jurisdiction to issue process based on the police report/complaint.
Addressing the contention that the making over to Mr. Hollow divested Mr. Majid of seisin, the Court examined whether the order was an order under section 202 (which could have had consequences for transfer of seisin). The Court concluded the order was not in form or effect an order under section 202 and that both Magistrates understood the making over to refer only to the show-cause proceedings rather than to an inquiry under s.202. Citing Sarba Mahton and related authorities, the Court held that adoption of a fair procedure or even an inquiry by another Magistrate does not affect the jurisdiction of the Magistrate who originally took cognizance to summon the accused and proceed with trial.
In sum, the analysis combined statutory interpretation, reliance on prior full-bench guidance about procedural fairness in cases of alleged false charges, and a determination that procedural irregularities in the internal handling of the show-cause step did not vitiate the Magistrate's jurisdiction to issue process.
Holding and Implications
DISCHARGED: The Rule is discharged.
Direct effects and immediate consequences:
- The order of Mr. Majid dated 15 September 1918 summoning the Petitioner to answer a charge under section 211, I.P.C., stands; the Court refused to set it aside.
- The Court held that whether the police report is treated as a "police report" under s.190(1)(b) or as a "complaint" under the Code, the Magistrate had jurisdiction to issue process; any omission to examine the complainant where required would be an irregularity only and not a jurisdictional defect that would invalidate the Magistrate's authority to proceed.
- The practice of calling upon the maker of the original charge to show cause before commencing prosecution for a false charge (as advised by the Full Bench in Queen-Empress v. Sham Lal) was treated as permissible and not as rendering the Magistrate's subsequent action without jurisdiction.
Broader implications:
The opinion applies existing authority about the distinction between jurisdictional defects and mere irregularities, and it endorses the fairness-driven practice of giving an accused person an opportunity to support or abandon an original charge before being prosecuted for making a false charge. The Court did not purport to lay down a new, broader precedent beyond the conclusions reflected in the cited authorities; its decision primarily affirms the Magistrate's jurisdiction in the specific procedural circumstances before it.
End of summary.
The Judgment of the Court was as follows:—
Richardson, J.:— I agree in the conclusion arrived at by my learned brother.
We recently had occasion in Harihar Roy v. The King-Emperor (1) to consider the question whether the report of a police officer disclosing the commission of a non-cognizable offence was a “police report” within the meaning of sec. 190(1), (b) of the Criminal Procedure Code or a “complaint” within the meaning of sec. 1(4), (h). The conclusion at which we then arrived was that it must be one or the other. That being so, the Magistrate in the present case had jurisdiction to take cognizance of the non-cognizable offence disclosed in the report submitted by the investigating police officer, the offence, namely, of making a false charge punishable under sec. 211 of the Penal Code.
If the question were free from authority, I should for my part be disposed to say that the report of a police officer in a non-cognizable case is a “police report” for the purposes of sec. 190(1), (b) of the Criminal Procedure Code. In that case the Magistrate had clearly power to issue process against the Petitioner as he has done. But if that view be not correct and the report in question was a complaint, then the only error which the Magistrate committed, was in not examining the complainant, that is the police officer, on oath before issuing process. In the case I have referred to [Harihar Roy v. The King-Emperor ], we held that such an omission was an irregularity only and that it did not go to the jurisdiction of the Magistrate. That being so, there is no reason why merely on this ground we should interfere in the exercise of our revisional jurisdiction and direct that the case be commenced de novo.
Then there is the proceeding which has been interpolated between the report of the police officer and the issue of process. The Petitioner was called upon to show cause why he should not be prosecuted for making a false charge and the proceeding was made over for hearing by Mr. Majid, the senior Deputy Magistrate, who had received the report, to a junior Deputy Magistrate, Mr. Hollow. The Petitioner took no exception at the time. He showed cause and produced witnesses. Mr. Hollow, after examining the witnesses, was of opinion that the case instituted was false and with this expression of opinion the case went back to Mr. Majid, who issued process. Now, it is quite true that the course so followed is not expressly sanctioned by the Code. But in Queen-Empress v. Sham Lal , which was decided by a Full Bench, Sir Comer Petheram laid it down that a prosecution for making a false charge should not be commenced “until it is clear that the original charge has been either dismissed or abandoned.” He went on to say:—
“I should add that in order to show conclusively that such a charge (that is the original charge said to be false) has been abandoned, I think that before the order to prosecute for the false charge is made, the person who made the original charge should be offered an opportunity of supporting it or abandoning it.” Norris, J., also says—
“I am also of opinion that a Magistrate should not take cognizance of an alleged offence under sec. 211, I.P.C, until the alleged offender has had an opportunity of substantiating the original charge, and such original charge has been disposed of in due course of law.”
Wilson, J., concurred in the judgments of Petheram, C.J, and Norris, J., and Tottenham and Ghose, JJ., concurred generally in those judgments. Tottenham, J.'s reservation is not pertinent to the question now under discussion.
Since Sham Lal's case and in deference to the opinion expressed in that case, the procedure adopted in the present case has been commonly followed and it is only recently that any exception has been taken to it. The position now is that if the person accused of having made a false charge is not afforded an opportunity of proving the charge, the Magistrate's proceedings are attacked on that ground on the authority of the Full Bench case. If, having been given such an opportunity, he fails to prove the charge and is then prosecuted, he complains that the Magistrate had no jurisdiction to call upon him to show cause.
Different views may perhaps be held as to the propriety of calling upon an accused person to show cause why he should not be prosecuted for an offence. But clearly it was the opinion of the Full Bench or, at any rate, of the majority of the Judges who composed it, that in the special case of a charge made to the police and reported by the police to be false, the maker should have notice before being prosecuted under sec. 211. In giving such notice the Magistrate, though he may not be acting under any express provision of the Code, cannot be said to act without jurisdiction. The maker may show cause or may refuse to show cause but whichever course he adopts, having made the charge, he can hardly be heard to complain-Similarly, in proceedings under secs. 195 and 476 of the Code, a person could make no grievance out of the fact that before an order was made against him under either of those sections, he was given notice or was called upon to show cause why such an order should not be made.
Moreover, as my learned brother has said if the proceedings held in such cases upon an order to show cause are without jurisdiction, the result is merely that those proceedings are null and void. They do not affect the Magistrate's jurisdiction to issue process.
What happened in the present case was this. On the receipt of the police report Mr. Majid stayed his hand. He gave the Petitioner the opportunity required or suggested by the Full Bench case before issuing process. I agree with my learned brother that in no view of the case can it be said that in issuing process Mr. Majid acted without jurisdiction and that the Rule should be discharged.
Shamsul Huda, J.:— This is a Rule calling upon the Deputy Commissioner of Jalpaiguri to show cause why the order of Mr. Majid, dated the 15th of September 1918, summoning the Petitioner to answer a charge under sec. 211, I.P.C, should not be set aside.
It appears that the Petitioner lodged an information to the police of a dacoity said to have been committed in his house. The police after investigation submitted a report to the aforesaid Mr. Majid, the senior Deputy Magistrate of Jalpaiguri, stating that the case was false and recommending the prosecution of the Petitioner. This report purports to be one under sec. 173 of the Criminal Procedure Code. On receipt of this report on the 22nd of July 1918 the Petitioner was called upon by Mr. Majid to show cause why he should not be prosecuted for an offence under sec. 211 of the Indian Penal Code and subsequently on the 3rd of August 1918 he referred the matter to Mr. Hollow, another Deputy Magistrate, for disposal. Mr. Hollow, after examining some witnesses produced by the Petitioner, was of opinion that the charge of dacoity was false and recommended his prosecution. Mr. Majid accepted this recommendation and summoned the Petitioner to appear before him to answer to a charge under sec. 211, I.P.C The Rule is directed against this order.
Mr. Pugh, who appeared in support of the Rule, contended that this order is illegal and should be set aside mainly on two grounds. In the first place he contended that the report of the police officer who recommended the prosecution of the Petitioner was not a police report within the meaning of sec. 190(1), (b), Cr. P.C, as the police report contemplated by that section is a police report in a cognizable case, that an offence under sec. 211 being non-cognizable the Magistrate was not competent to take cognizance of the case on such a report. This contention is based on the decision of a Full Bench of Bombay High Court, King-Emperor v. Sada (3), in which it was held that where a police officer, of his own motion, makes a report to a Magistrate in a non-cognizable case, it is not a police report as there is no provision in the Criminal Procedure Code which empowers a police officer to make such a report. As observed by Mr. Justice Chanda varkar “the legislature has studiously attached to the expression “police report” a peculiar meaning throughout the Code wherever the expression occurs, and pointed out the occasions when and the purposes for which such reports should be made. Where a police report goes beyond those occasions and purposes, it must fall within the definition of “complaint” in sec. 4, cl. (h), of the Code.” The same view was taken by the Madras High Court in the case of V.O Chidambaram, Pillai v. Emperor (4), where it was held that a report of a police officer must be some statement made in connection with or at least under colour of the duty of the maker as a police officer. A somewhat different view was, however, taken by two learned Judges of this Court in the case of Dilan Singh v. Emperor* (5), in which it was said that a police report such as the report in the present case is not a complaint as defined in the Code inasmuch as that definition expressly excludes a report of a police officer. I may however observe that if such a report is not a police report within the meaning of sec. 190(1), (b), it is not excluded from the definition of a complaint under sec. 4(h). We have also been referred to the decision of Chapman and Walmsley, JJ., in Gangadhar Prodhan v. Emperor (6). If it were necessary in the present case to decide the point perhaps I should not have felt very much pressed by these decisions as the point was not directly raised in either of these two cases. The same remark applies to the decision of a Full Bench of this Court in Queen-Empress v. Sham Lal . The question however does not appear to be of any practical value in the decision of this case for conceding that the learned Counsel is right in his contention and that the report was not a police report as stated before, it would fall within the definition of a complaint and the Magistrate could take cognizance of the case under sec. 190(1), (a), in which case he ought to have examined the complainant before issuing the summons (sec. 200, Cr. P.C). But his omission to do so is a mere irregularity and does not go to the root of the Magistrate's jurisdiction.
In this view of the case the action of the Magistrate was not in excess of his powers. In support of the rule reliance has also been placed on the case of Tayabullah v. King-Emperor (7) but as the order complained of is neither an order under sec. 195, Cr. P.C, nor an order under sec. 476, that case seems to me not to have any bearing on the present question. I think therefore that the proceeding in this case have been properly initiated.
Next, it is argued that Mr. Majid having made over the case for disposal to Mr. Hollow, it was Mr. Hollow alone who had seisin of the case and Mr. Majid had no jurisdiction to direct the issue of summons without an order of transfer passed in conformity with the provisions of sec. 528 of the Criminal Procedure Code. If the order were an order under sec. 202, Cr. P.C, on the authority of the ruling in Hari Charan v. Giris Chandra (8) the contention would have been well-founded. The order making over the case to Mr. Hollow for disposal is not very clear but both Mr. Majid and Mr. Hollow understood it to refer not to the actual charge under sec. 211 against the Petitioner but to the proceeding calling upon the Petitioner to show cause why he should not be prosecuted under that section. In my opinion the order was neither in form nor in effect an order under sec. 202, Cr. P.C Assuming that the Magistrate took cognizance of the case upon a complaint, it does not appear that the Magistrate was not satisfied as to the truth of the charge against the Petitioner. His object in calling upon the Petitioner to show cause was, no doubt, to give an opportunity to prove the charge of dacoity contained in the information laid by him before the police and was in conformity with the practice that was recommended in the Full Bench case of Queen-Empress v. Sham Lal . But as pointed out in the case of Sarba Mahton v. Emperor (9) and Tayabullah v. King-Emperor the procedure, though obviously fair, is not one under any provision of the Code and its adoption, even if it led to an enquiry by another Magistrate, can in no way affect the jurisdiction of the Magistrate who took cognizance of the case to summon the accused and proceed with the trial. I think therefore this rule should be discharged.
S.C.M
Rule discharged.
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