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Criminal Appeal No. 24 of 1952, decided on 19th December 1952.
(On appeal from the judgment and order of the High Court of Judicature at Dacca, dated the 4th December 1951 in Criminal Revision No. 375 of 1951).
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Ss. 190(1)(c), 191 Trial Magistrate not empowered to act under cl. (c) Proceedings initiated against additional accused on basis of statement of prosecution witness‑Such additional accused originally named in First Information Report but not challaned by police‑Proceedings, held, ab initio void‑The fact that the case had been transferred to trial Magistrate by the Sub Divisional Magistrate after the latter had taken cognizance of the offence will not confer on transferee Magistrate jurisdiction to act under cl. (c).
The case was originally taken cognizance of by the Sub -Divisional Magistrate on a police report against a number of persons not including the appellant, though the F. I. R. named the appellant as one of the persons implicated in the crime. The Sub‑Divisional Magistrate transferred the case to the trial Magis trate who was not empowered to take cognizance of an offence under cl. (c) of subsection (1) of section 190, Cr. P. C. The trial Magistrate, however after recording statement of a prosecution witness issued warrant of arrest against the appellant and tried him along with the other accused.
Held (by the Court), that the trial of appellant was vitiated not only because the trial Magistrate was not empowered under section 190 (1) (c), Cr. P. C. but also because the appellant had not been informed under section 191 that he could claim to be tried by another Magistrate.
‑The contention that once cognizance is taken of the offence, section 190 does not apply to the case is based on the view that under that section cognizance is taken of the offence and not the offender. This view no doubt finds support in some decisions but I find myself unable to agree with it. Taking cognizance of the offence, has not been defined in the Code and from the fact that the word offender is not mentioned In section 190, it does not follow that once cognizance of the offence is taken section 190 has no application when a person who was not an accused at the start has to be placed on trial.
Taking cognizance is not confined only to the offence but also relates to the offender.
The trial Magistrate in proceeding against the appellant acted under clause (c) of section 190 (L) though he had not been empowered to do so. The trial of the appellant was therefore vitiated.
It is true that this point was not raised before the Courts below, and had it not affected the jurisdiction of the trial Magistrate I might not have considered it at this stage. But being a point that goes to the root of the matter, the mere fact that it was not raised in the Courts below cannot be allowed to stand in the way of its being considered.
‑Cognizance of the newly discovered offence must be taken a new, and subject to the other conditions prescribed by law.
The procedural requirements of the criminal law are not mere formalities. Underlying the rules of procedure is an all pervading care to ensure the liberty of the subject and the due dispensation of justice. Certain observations appearing in a number of the judgments cited during the arguments in this case appear to me to be likely to defeat this purpose by undue enlarge ment of the powers of Magistrates on the basis of assumptions which are not well‑founded in law. Some of these views may be interpreted so as to enlarge the powers of a transferee Magi strate beyond those with which he is invested e.g., to take cognizance on his own information of suspicion, of an offence appearing in the course of a pending prose.‑ding, although he is not empowered to take cognizance in this manner. The rights of accused persons also are placed in jeopardy as a result of the acceptance of such views, e.g. where on certain assumptions, a Magistrate who clearly takes cognizance of an offence otherwise than on the basis of a complaint or a police report, may yet be regarded as not taking cognizance on his own information or suspicion, and in consequence, the right of the accused to object to being tried by the person who was the first to form the opinion that facts existed showing that he had committed an offence, is taken away. Any view of the law which leads to consequences of this kind must, in my opinion, be rejected. It would violate the fundamental principle that penal laws must be interpreted strictly, and in favour of the subject not so as to deprive him of his legal rights.
‑Section 192, Cr. P. C. lays down that a case can be transferred to a subordinate Magistrate only after its cognizance has been taken. It is apparent therefore that the cognizance of the offence must have been taken by the S. D. O. before he transferred the case of Mr. Qasmi. As the Code of Criminal Procedure provides for taking cognizance of an offence and not of any individual offender, the Magistrate who takes cognizance of the offence can proceed against every person who may be proved by evidence to be concerned in the offence, irrespective of his name being specifically mentioned or not either in the petition of complaint or in the police report.
It is also well settled now that a subordinate Magistrate to whom a case is transferred for disposal has the same powers in respect of its trial as are possessed by the Magistrate who transfers the case.
Section 190(l)(c) does not apply and consequently no question of, the contravention of section 191, Cr. P. C. arises.
In the ‑present appeal the decision on the question of law whether or not the trial of the appellant took place with or without jurisdiction would depend upon the determination of the further question of fact whether or not the appellant was given by the Court of trial an opportunity as prescribed by section 191, Cr. P. C.
Section 191 nowhere states that it is obligatory upon a Magistrate to put on record the fact that he had complied with the terms of the section. In any event I think it is but fair to give the Magistrate a chance to admit or to deny the allegation before taking any action upon the bare statement of the appellant. For myself I must say that I am not inclined to encourage the growing practice of taking for the first time in this Court a point of law requiring for its decision a further enquiry into facts.
[Case‑law discussed].
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Not allowing grounds to be urged in criminal revision except those on which petition admitted‑Disapproved.
Hamidul Haq Choudhury, Senior Advocate, Federal Court, (Abdus Sattar, Advocate, Federal Court, with him) instructed . by A. M. Abdullah, Attorney for Appellant.
A. K. Fazlul Haq, Advocate‑General, East Bengal (Amjad Hussain, Advocate, Federal Court with him) instructed by A. e. Mahmud Hussain, Attorney for Respondent.
‑This appeal by one Abdus Sattar Molla who has obtained our special leave, arises out of an order passed by the High Court of Judicature at Dacca rejecting the appellant's application under section 439, Cr. P. C., for setting aside his convictions under sections 148 and 326, P. P. C. and the sentences thereunder of rigorous imprisonment for one year under section 148 and for six months with a fine of Rs. 300 under section 326.
The case against the appellant was that on account of some enmity between the parties, while the complainant P. W. 1 was returning home from a certain shop in the afternoon of the 18th May 1949, the appellant along with several others way laid him and inflicted upon him serious injuries by means of a spear.
The defence of the appellant was that the injuries were caused by accused Kanu and two other persons in the course of a quarrel over the impounding of some cattle : that the appel lant was not present at the place of occurrence on the 18th May 1949 but was at Dacca whereas a student he was attending the law classes.
As leave was granted by us on the ground of jurisdiction only, counsel for the appellant urged
(i) that the trying Magistrate who obtained seisin of the case by a transfer under section 192, Cr. P. C. could have no legal authority to initiate proceedings against the appellant under section 190 of the said Code ;
(ii) that conceding that the trying Magistrate had authority under section 190, Cr. P. C. the trial held by him was a void one as he omitted under section 191, Cr. P. C. to inform the appellant that he could be tried by another Magistrate if he so wished.
As regards ground No. 1, it is to be observed, that the order of the S. D. O. of Khulna dated the 22nd June 1949 discloses that the appellant was an accused in the case; that he surrendered by a petition; that he was admitted to bail ; and that after several adjournments his case was transferred to the file of Mr. M. A. Qasmi "for favour of disposal" ; further, that section 192, Cr. P. C. lays down that a case can be transferred to a subordinate Magistrate only after its cognizance has been) taken. It is apparent therefore that the cognizance of the offence must have been taken by the S. D. O. before he transferred the case to Mr. Qasmi. As the Code of Criminal Procedure provides for taking cognizance of an offence and not of any h individual offender, the Magistrate who takes cognizance of the offence can proceed against every person who may be proved by evidence to be concerned in the offence, irrespective of his name being specifically mentioned or not either in the petition of com plaint or in the police report vide Dedar Bakhsh v. Syamapada 1 Malakar (I L R 41 Cal. 1013) ; Girdhari Lai v. King‑Emperor (21 C W N 950). It is also we11 settled now that a subordinate Magistrate to whom a case is transferred for disposal has the same powers in respect of its trial as are possessed by the Magistrate who transfers the case ; Hafizar Rahman v. Aminal Haque (44 C W N 1114). Mr. Qasmi therefore who had obtained full seisin of the case on its transfer by the S. D. O. was legally competent to proceed against the appellant as well, even though his name was omitted from the charge‑sheet originally and the proceeding was started against those persons only whose names appeared in the charge‑sheet.
As regards ground No. 2 it appears that the F. I. R. ; the charge‑sheet filed before the S. D. U. as also the petition submit ted by the Court Inspector during the course of the trial and the evidence given by P. W. 1 (complainant) were all before Mr. Qasmi vide orders dated 14th October. 1949 and 1st December 1949. It cannot therefore be reasonably suggested that Mr. Qasmi was acting under section 190(1)(c) of the Cr. P. C. upon informa tion received from a person other than a police officer or upon his own knowledge or suspicion. Reference in this connection may be made to the cases of Jagat Chundra Mozumdar v. Queen Empress (I L R 26 Cal. 786) and Emperor v. Monikar Gramani (I L R 30 Mad. 228 ). The case of Emperor v. Chedi (I L R 28 All. 212) on which great reliance has been placed by counsel for the appellant is clearly distinguishable. With reference to this case their Lordships of the Judicial Committee observed in Abdul Rahman v. King‑Emperor (A I R 1927 P C 44) as follows:
"It was not a case in which while trying one person the Magistrate finds occasion to formulate a charge against some one else but a case in which he was taking cognizance of an offence after receiving a complaint of the facts which constituted the offence. He formulated this second charge as he formulated the first in consequence of the one complaint."
From the facts of the case of Emperor v. Chedi (supra) it is clear that the Magistrate proceeded in that case against one other person subsequent to the acquittal of those against whom the charge was originally laid, that is to say, cognizance of the offence was taken as against another person after the termination of the original trial and not pending it. The High Court of Allahabad therefore took the view that in the circumstances cognizance of the offence was taken under section 190 (1) (c) of the Cr. P. C. against the person newly charged and he was entitled to get an opportunity of electing to be tried by some other Magistrate. This case the Privy Council distinguished while discussing the case of Abdul Rahman v. King‑Emperor (supra) in the manner stated above. The case now before us is also distinguishable from the case of Emperor v. Chedi (supra) in the same way. In fact the observation made by the Privy Council in Abdul Rahman's case goes a great way in support of the view that n circumstances such as exist in the present case section 190 (1) (c) has no application. In my opinion therefore section 190 (1) (c)I does not apply and consequently no question of the contravention of section 191, Cr. P. C. arises.
There is however one other aspect of this matter which I think should not be lost sight of. It is with regard to the propriety of raising for the first time in this Court a point of law which for its decision would require an investigation into factual matters. In the present appeal the decision on the question of law whether or not the trial of the appellant took place with or without jurisdiction would depend upon the determination of the further x question of fact whether or not the appellant was given by the Court of trial an opportunity as prescribed by section 191,Cr.P.C. The appellant here was convicted in July 1950. His appeal was dismissed in April 1951, and his application for revision was rejected in December 1951. His petition to this Court for special leave to appeal was filed in January 1952, and it was in this petition‑that it was averred for the first time that the appellant was not told that he was entitled to have his case tried by some other Magistrate if he so wished ; before us there is no affdavit or affirmation in support of that averment but it is argued that as the order‑sheet does not show that the Magistrate had proceeded in accordance with section 191, the only inference that should be drawn is that he had failed to come with the requirements of that section. But section 191 nowhere states that it ist obligatory upon a Magistrate to put on record the fact that he had complied with the terms of the section. In any event I think it is but fair to give the Magistrate a chance to admit or to deny L the allegation before taking any action upon the bare statement of the appellant. For myself I must say that I am not inclined to encourage the growing practice of taking for the first time in this Court a point of law requiring for its decision a further enquiry into facts. I do not think I need dwell upon this topic any longer.
In my judgment no error of any kind in this case as regards jurisdiction having been committed by the Court below this appeal should be dismissed But as both of my brothers Shahabuddin and Cornelius, JJ. take a different view, their opinion, being the opinion of the majority, must prevail. The appeal therefore is allowed, the convictions and the sentence are set aside and the appellant is discharged from his bail‑bond.
‑The appellant Abdul Sattar Molla was convicted and sentenced by a First Class Magistrate of Khulna to rigorous imprisonment for one year for the offence of rioting punishable under section 148, P. P. C. and to rigorous imprison ment for six months and a fine of Rs. 300 for the offence of causing grievous hurt with a dangerous weapon punishable under section 326, P. P. C. Eight others, who were tried with him were also convicted and sentenced to various terms of imprisonment, but we are not concerned with them in this appeal.
The case for the prosecution, as accepted by the trial Magistrate was that on the afternoon of the 18th May 1949, while P. W. 1, Abdus Samad Molla, was returning home from the shop of P. W. 12, the appellant and the other eight accused variously armed surrounded him and threatened to kill him saying that he had falsely implicated them in a case under the Arms Act, that the appellant and two other accused caused injuries to Abdus Samad Molla, with spears and that the other accused also caused injuries to him and others of the prosecution party. This occurrence took place in Mauza Basarat within the limits of Police Station Terakhanda. Exh. A is an entry in the general diary of Terakhanda Police Station made by P. W. 9, the Investigating Officer in this case. It is to the effect that one Shamsur Rahman Molla, stated at that police station that on the day in question at 2‑30 p .m. one Daud Molla while taking the cattle of the accused Noorul Haq to the pound, was opposed by Abdus Sattar Molla, Baqar Molla, Kanoo Molla and others, that these persons attacked Daud Molla who cried out for help, that hearing his cry, his relative, Abdus Samad Molla appeared on the scene and that injuries were caused to him and Humayum Kabir and Daud Molla by nine persons whose names are mention ed in the entry. Amongst those nine names the appellant's name does not find a place. It is also stated in this entry that the injured persons were sent to Khulna Hospital. The entry concludes with the observation that as it was not possible for P. W. 9 the Officer‑in‑charge to ascertain the nature of the injuries without seeing the injured persons or a medical certificate, P. W. 9 directed the informant either to bring the injured men or to produce a medical report of the injuries. P. W. S denied having made this report; but P. W. 9 deposed that it was P. W. S who gave the information embodied in this entry. However a report was given to the police at Khulna by Abdul Samad's son P. W. 2 who was also injured. The injured persons had reached Khulna hospital by the evening of 18th May 1949 but the report was made to the police the next day at 9‑30 a.m. and in that report the present appellant also is implicated. The case was then investigated by P. W. 9 who submitted the charge‑sheet only against the other eight accused and not against the appellant.
In his evidence P.W. 9 explained that during his investigation he received information from a Professor of Dacca as well as from the Officer‑in‑charge of Lalbagh Police Station that the appellant who was a student of the M. A. and Law Classes; was in the Law Class at Dacca on the day of the occurrence, The appellant was not therefore forwarded by the Magistrate and from the order dated 4th June 1949 in the order -sheet it appears that only the other 8 accused were treated as attested that day by the Sub‑Divisional Magistrate Khulna. That order is as follows :‑
"All accused present. No report Takid. To 27th June 1949. Accused as before."
On 27th June 1949 the following order was made in the order sheet :‑
"Accused Abdus Sattar surrendered by petition in connection with this case. Bail petition moved. Admitted to bail of Rs. 400. Other accused present. Fix 3rd August 1949."
It is clear from these orders that on 4th June 1949 the appellant was not treated as an accused but on 27th June 1949 he surrendered before the Sub‑Divisional Magistrate apparently because his name appeared in the first information report and bail was granted to him on his petition. However, the charge sheet which was received on 13th October 1949, as stated already, implicated only the other eight accused and not the appellant and the Sub‑Divisional Magistrate passed the following order that day :‑‑
"C. S. under section 148/149/326, I. P. C. received against the accused Nurul Hoque, Rasul Molla, Kann Molla, Azahar Molla, Abdul Gani Molla, Khalil Molla, Abdur Rab Molla, and Abdul Hoque Molla. Case transferred to the file of M. A. Qasmi, Magistrate, 1st Class for favour of disposal."
Nothing is mentioned in this order about the appellant. Mr. Qasmi on receiving the case record on 14th October 1949 ordered it to be put up on 19th October 1949 when five of the accused mentioned in the charge‑sheet were present and the case was adjourned to 10th November 1949 for the production by the sureties of the other accused mentioned in the charge‑sheet. On 10th November 1949 all the eight accused were present and the case was posted to 1st December 1949 for evidence. Mr. Qasmi proceeded only against the accused mentioned in the charge‑sheet and in the orders passed subsequent to the receipt of the charge‑sheet and before 1st December 1949 nothing is stated indicating that the trial Magistrate intended to proceed against the appellant. It was only on 1st December 1949 after Abdul Samad's son was examined in full and Abdul Samad in part that Mr. Qasmi thought of proceeding against the appellant. He stopped recording evidence, issued a warrant of arrest against the appellant and posted the case to 9th December 1949 for evidence which was to start afresh.
All the P. Ws. who supported the prosecution version were interested, but one of them P. W. 3, who hearing the alarm went to the place where the occurrence was going on, did not mention the appellant as one of the offenders. The defence was that over a damage to jute plants by cattle there might have been a fight between the two parties in the course of which Abdul Samad and his people might have been injured but that ill that occurrence no accused except Kanu participated. As regards the appellant a plea of alibi was taken ; his case being that on the day of occurrence as a student of M. A. and Law Classes he was present at Dacca ; but no defence evidence with regard to this plea was adduced. The defence appears to have relied on the evidence of P. W. 9 that he during investigation got a certificate from one of the Professors of Dacca and also a report from the Lalbag Police that the appellant was present at Dacca on the day of occurrence. One defence witness however was examined to prove the entry in the general diary in respect of which P. W. 9 who wrote it had already deposed.
The trial Magistrate proceeded on the basis that P. W. 9 the investigating officer was partial to the present appellant. He commented adversely on the investigation, but no question was put to P. W. 9 by the Magistrate in this regard. The points on which adverse comments have been made should have in fairness been put to the investigation officer, when he was in the box, to give him an opportunity to explain them. The plea of alibi was disbelieved and the accused including the appellant were convicted and sentenced as stated above.
On appeal the Additional Sessions Judge of Khulna agreed with the trial Magistrate's conclusions. It was contended before him, that as the trial Magistrate was not a Sub‑Divisional Magistrate or a Magistrate empowered to take cognizance of the offence, he had no jurisdiction to proceed against the appellant, when the charge‑sheet on which the Sub‑Divisional Magistrate had taken cognizance did not implicate him. This contention was repelled by the Additional Sessions Judge who observed, that as the case had been transferred by the Sub‑Divisional Magistrate after he had taken cognizance of the offence the trial Magistrate had jurisdiction to proceed even against persons other than those mentioned in the charge‑sheet. He held that section 190 provides for the taking of cognizance of offences and not parties involved. With some modifications in respect of two of the other accused the appeal was dismissed. A revision petition was filed in the High Court of Dacca, and ground No. 5 which related specially to the appellant was that reliance had been placed on the entry in the general diary in support of the plea of alibi but as that was considered by the Courts below as insufficient, the certificate of the Dean of the Faculty of Law, Dacca University and of an Advocate of the High Court who took the Law Class on the date of the occurrence should in the interest of justice be admitted under section 428, Cr. P. C. The revision petition was, however, admitted only on ground No. 6 which was as follows :‑
"For that the conviction and sentence are clearly bad in law as they have been based on misreading, misconstruction and mis-appreciation of law."
When the revision petition came on for hearing, ground No. 5 was pressed but the learned Judges of the High Court did not consider it as it was only on ground No. 6 that the rule ha&‑ been issued. As for ground No. 6 it was argued that it covered mis-appreciation of evidence also ; but the learned Judges took the view that it could not be so interpreted. They held that on ground No. 6, as it stood, it was not possible to show that there was any misreading, misconstruction or mis-appreciation of law. They therefore dismissed the petition. It does not appear that the question of jurisdiction which was raised before the Additional Sessions Judge was pressed before the learned Judges of the High Court.
Special leave to appeal to this Court was then applied for only by the appellant Abdus Sattar Molla, the grounds urged being that the trial Magistrate had no power to take cognizance of the present appellant's alleged offences, that the trial Magistrate, as he acted suo motu in proceeding against the appellant, should have observed the mandatory provision of section 191, Cr. P. C. and as he did not do so the trial was vitiated and that the appellant did not receive a fair hearing in the High Court. Special Leave was granted, as in the opinion of this Court the plea of jurisdiction needed further consideration.
It was contended by Mr. Hamidul Haq counsel for the appellant that the Sub‑Divisional Magistrate took cognizance of the offence on the charge‑sheet which did not implicate the present appellant and therefore the trial Magistrate, who was not empowered to act under section 190, Cr. P. C., had jurisdiction to proceed only against the accused mentioned in the charge‑sheet and not against the appellant. Alternatively, he argued that even if it was considered that by virtue of the transfer of the case to him, the trial Magistrate had jurisdiction as against the appellant, his having proceeded against him on the evidence recorded on 1st December, 1949 amounted to his taking cognizance under clause (c) of section 1900) and he should have therefore, as required under section 191, informed the appellant that he was entitled to be tried by another Magistrate, and that as he did not do so the trial was vitiated. It was also urged by him that the learned Judges of the High Court were not bound to hear the revision petition only on the 6th ground on which it was admitted but that they should have considered the 5th ground also. In the view, I am taking on the question of jurisdiction of the trial Magistrate, I do not find it necessary in this case to deal with the last mentioned contention.
Mr. Fazlul Haq, Advocate‑General of East Bengal did not dispute that the trial Magistrate in this case was not empowered to take cognizance under section 190 but his contentions were these.
(1) The action of the trial Mrgistrate in proceeding against the appellant has to be considered as covered by clause (b) and not clause (c) of section 190(1).
(2) Once cognizance of the case is taken by a Magistrate empowered to do so and the case is transferred, section 190 does not apply and the transferee Magistrate gets full seisin of the case and can proceed against persons other than those already accused if he finds that the evidence before him discloses their complicity. Cognizance under section 190 is taken of the offence and not the offenders.
(3) Even if it is considered that this case comes under clause (c) of section 1900) there is no proof that the trial Magistrate did not act under section 191 and the appellant should not be allowed to raise a question of fact at this stage for the first time.
It is clear from the history of the case that the Sub‑Divisional Magistrate took cognizance of it only on the charge‑sheet which, as stated already, was received on 13th October 1949 against the accused other than the appellant. Having regard to the evidence of the investigating officer and the orders of the Sub‑Divisional Magistrate in the order‑sheet it does not appear that the Sub‑Divisional Magistrate had before him any police report against the appellant. In the circumstances, his having granted bail co the appellant on his own petition does not amount to taking cognizance of the offence against him. As a matter of fact his bail bond does not appear to have been in force after the case was transferred. It is true that there is no order in the order‑sheet that the bail bond of the appellant was cancelled, but it is significant that the trial Magistrate issued an arrest warrant against the appellant on 1st December, 1949 when he decided for the first time to place him on trial with the other accused. On 19th October, 1949 when three of the accused mentioned in the charge‑sheet failed to appear, the trial Magistrate directed their sureties to produce them and on the next date i.e. 10th November, 1949 those three accused also appeared. But on 1st December, 1949 no direction was given to the sureties of the appellant. However, had the Sub‑Divisional Magistrate taken cognizance against the appellant also, he would have stated so in his order transferring the case as the charge sheet does not implicate him. The trial Magistrate started the case on the basis that only the accused mentioned in the charge sheet were to be tried. There was no police report before him implicating the appellant. He does not state in the judgment that he proceeded against the appellant on a police report. On the other hand he says "After the examination of P. W. 1 and P. W. 6 on 1st December 1949 I found that there was a prima facie evidence against accused Abdus Sattar as well, then on the prayer of C. 1. Police he was brought before this Court, to stand his trial along with the other charge‑sheeted accused. The trial commenced afresh after the appearance of this accused." The petition presented by the Court Inspector is not before us, but the above observation of the Magistrate indicates that it was a petition for the appellant being put on trial with the other accused. It could not have been such a report from the police as is referred to in clause (b) of section 190. The trial Magistrate himself gathered from the evidence he had recorded on 1st December, 1949 that the appellant participated in the crime. It is therefore clear that in proceeding against the appellant he did not act under clause (b) of section 190 (1). Clause (a) of that section obviously did not apply. The only other clause that covers this case is clause (c), to act under which the Magistrate was not empowered.
The contention that once cognizance is taken of the offence section 190 does not apply to the case is based in the view iliac under that section cognizance is taken of the offence and not the offender. This view no doubt finds support in some decisions but I find myself unable to agree with it. Taking cognizance of the offence, has not been defined in the Code and from the fact that the word offender is not mentioned in section 190, it does not follow that once cognizance of the offence is taken section 190 has no application when a person who was not an accused at A the start has to be placed on trial. Under section 197 no Court shall take without previous sanction cognizance of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty by a public servant not removable from office except by a Provincial Government or a higher authority.
If a person to whom this section applies is an accused from the very start, the cognizance of the offence will not be taken till the previous sanction is accorded, but if after the offence has been taken cognizance of and during the course of evidence it is discovered that a public servant entitled to the protection under section 197 also participated in the offence, under the cloak of his office the Magistrate cannot proceed against that person without sanction on the ground that the offence had already been taken cognizance of. In such a case what he has to do is to take cognizance of the offence afresh as against the public servant concerned on the requisite sanction being accorded. It therefore appears to me that taking cognizance is not confined only to the offence but also relates to the offender. If it is held that after cognizance is taken of an offence, section 190 B ceases to have application then a Magistrate who took cognizance under clause (a) or (b) of section 190(1) can on his own knowledge or suspicion add other persons as accused and try them without giving them under section 191 the option of being tried by another Magistrate. In the nature of things, the Legislature could not have intended to deny such accused persons the right of being tried, by a Magistrate who has formed no opinion whatever on the case prior to the trial. Section 190 comes under the heading conditions requisite for intiation of proceedings which seems to me to include not only proceedings in respect of an offence but also proceedings against offenders. There may be cases where when the offence is taken cognizance of it is not known who the offender is, and cognizance may be taken of such cases in order to take action to find out the offender, but when the offender is found section 190 has to be kept in view in proceeding against him.
In the decisions cited by Mr. Fazlul Haq, the aspect of the matter discussed above does not appear to have been considered. In Hemendra Nath Sen v. Emperor (A I R 1929 Cal. 192) the transferee Magistrate proceeded against one of the persons accused in the complaint and after recording evidence found that the case was not sub stantiated against him but that there was a strong case against the other person accused in the complaint but against whom the transferring Magistrate had not issued process. The transferee Magistrate then issued process against that person. The contention that this was illegal as the transferee Magistrate did not have jurisdiction to act under section 190(t)(c) was not accepted on the ground that in the complaint itself the other person who was proceeded against subsequently was alleged to have committed the offence. But the fact that what made the transferee Magistrate to proceed against the other person was the impression formed on the evidence does not appear to have been taken into consideration. In Hafizar Rahman v. Hoque (supra) the Magistrate seems to have acted only on the complaint and not on any evidence he recorded thereon. The third case relied on by Mr. Fazlul Haq, Province of Bihar v. Bhim and others (A I R 1947 Pat. 284) directly supports the view urged by him and there are other cases where the same view was taken, but for reasons I have already stated I am unable to agree with that view.
In Khudiram Mookerjee v. The Empress (1 C W N 105) and Emperor v. Chedi (I L R 28) cited by Mr. Hamidul Haq, the facts were similar to those of the present case; but the case of Khudiram Mookerjee was governed by Cr. P. C. of 1882, section 191 of which has been split up into sections 190 and 191 of the Code now in force. There, one of the prosecution witnesses was on the facts disclosed by the evidence of another pro3ecution witness, placed on his trial along with the accused against whom the case was proceeding and the application for transfer filed by the newly added accused on the ground that the Magistrate was not competent to try him was rejected. It was held by the Calcutta High Court that the Magistrate had no power to take cognizance and the proceedings were quashed. In the other case Emperor v. Chedi to which the Code new in force applied, the Magistrate after regarding the evidence against the accused acquitted him and on the evidence so recorded he proceeded against another person for the same offence but failed to inform him under section 191 that he was entitled to be tried by another Court. It was held by the Allahabad High Court that the case came under clause (c) of section 190(1) and that failure to comply with section 191 was more than a mere irregularity and could not be cured under section 537, Cr. P. C. This decision was noticed by the Privy Council in Abdul Rahman v. The King‑Emperor (54 I A 96) where one of the points for consideration was whether a Magistrate who added a new charge against the accused after hearing the evidence acted under clause (c) of section 190, subsection (1) and consequently section 191 applied. In this respect reliance was placed by the appellant before the Judicial Committee on the above‑mentioned Allahabad case. The following observations of their Lordships indicate that they were in favour of the view taken by the Allahabad High Court on this point:‑
"The complaint is that the Magistrate did not inform the accused that he was entitled to have the case tried by another Court, and for this purpose reliance is placed upon the case of Chedi (supra) where a Magistrate when trying the owners of certain licensed premises on a charge of refusing to admit the police, acquitted the employers and forth with proceeded to try and convict the servant without giving him an opportunity of electing to be tried by another Magistrate.
But in that case the Magistrate proceeded under clause (c) whereas, in this case he was proceeding under clause (a). It was not a case in which, while trying one person, the Magistrate finds occasion to formulate a charge against some one else, but a case in which he was taking cognizance of an offence after receiving a complaint of the facts which constituted the offence. He formulated this second charge, as he formulated the first, in consequence of the one complaint."
I therefore consider that the trial Magistrate in proceeding against the appellant acted under clause (c) of section 190 (1) C though he had not been empowered to do so. The trial of the appellant was therefore vitiated.
Even if the Magistrate had the power to act under clause (c) of section 190 (1) the trial in this case would still have to be held to be vitiated because section 191 was not complied with. In my opinion there is no force in the contention of the learned Advocate -General that there is no proof of the non‑compliance of that provision of law. From the record before us it is clear that the appellant was not informed that he was entitled to be tried by another Court. In the order dated 1st December, 1949 when the appellant appeared and the case was started afresh, it was not noted that he was informed as required under section 19 i ; nor does any other part of the record show that that provision was complied with. It is true that this point was not raised before the Courts below, and had it not affected the jurisdiction of the trial Magistrate I might not have considered it at this stage. But being a point that goes to the root of the matter, the mere fact that it was not raised in the Courts below cannot be allowed to stand in the way of its being considered. Questions of fact no doubt cannot be raised in this Court but it appears to me that there is no question of fact to be determined in this respect. We have to act on the record in the case and it appears to me that the theory of the learned Advocate‑General that the Magistrate might have questioned the accused and might have forgotten to note that fact is far‑fetched. On behalf of the appellant this point was taken when leave to appeal was asked for and in the concise statement filed on his behalf in this case the omission of the Magistrate to comply with section 191 is mentioned. It is significant that in the concise statement filed on behalf of the Crown the theory now advanced before us on this point by the Advocate‑General does not find a place. In the circumstances we have to go by the record and as already stated there is nothing on the record to show that section 191 was complied with. If the Magistrate had acted under that section he would have, in the nature of things, made a note to that effect.
It was not denied that failure to comply with section 191 in cases to which it applies vitiates the trial. It is clear from that section, that the jurisdiction of a Magistrate to try the accused against whom he takes cognizance under section 190(1)(c) depends on the accused's consent. Since the consent of the appellant was not obtained the Magistrate had no jurisdiction to try him. I am in agreement with the view taken in Chedi's case that the omission on the part of the trial Magistrate in this respect is not a mere irregularity which can be cured.
I therefore consider that the appellant was tried by a Magistrate who had no jurisdiction to try him. The procedure adopted in this case was one which the Code prohibits and the possibility of its having worked actual injustice to the appellant cannot reasonably be excluded. I regret that in reaching these conclusions I have not been able to agree with my brother Akram.
I would therefore quash the conviction of the appellant and direct that he be discharged from his bail bond. I do not consider this a fit case for ordering a retrial.
‑I agree with my brother M. Shahabuddin that this appeal should be allowed on the ground that, in relation to the appellant, the trial Magistrate acted throughout without jurisdiction, and I accordingly agree that the conviction should be quashed, and the accused should be released. As, however, we are differing from the view taken by the Courts below, and I have also the misfortune to disagree with my brother Akram; I think it is desirable that I should also state the reasons for my decision.
Briefly put, the question which arises for decision in this case is as to the cognizance taken of the offence alleged to have been committed by the appellant, Abdus Sattar Molla, by the trial Magistrate, whether it was taken under clause c) of subsection (1) of section 190 or under clause (b) of the same subsection in the same section of the Cr. P. C. The relevant portions of the section read as follows:‑
"Section 190.‑(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub‑Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence
(a).......
(b) upon a report in writing of such facts made by any police officer.
(c) upon information received from any person other than a police‑officer, or upon his own knowledge or suspicion, that such offence has been committed."
It is conceded that the trial Magistrate was not empowered to take cognizance under clause (c) above. The circumstances in which he commenced proceedings against Abdus Sattar Molla were briefly as follows.
The incident in the case (which was prosecuted under sections 148 and 326/149, P. P. C., having occurred at about 1,0 p.m. on the 18th May, 1948, at a place known as Barasat in thana Terakhada, in the district of Khulna, report thereof was lodged at thana Kbulna at 9‑30 a.m. on the following day. Nine accused persons were named by the complainant, Humayun Kabir, who had himself been injured. One of these persons was the appellant Abdus Sattar Molla, and the allegation against him was that he opened the attack with a spear blow on the left side of the body of Abdus Samad, father of Humayun Kabir. Abdul Samad received two other injuries from other assailants, and besides the complainant, Humayun Kabir, who received two incised injuries, one other person named Daud Mollah sustained five superficial incised injuries. Only Nurul Huq of the nine persons appears to have been arrested by the Investigating Officer Wali‑ur‑Rahman, and he was produced before the Sub‑Divisional Magistrate on the 22nd May, 1949, presumably in compliance with the requirements of section 61/167, Cr. P. C. He was granted bail by the Sub. Divisional Magistrate after perusal of "the forwarding report". On the following day, seven others of the accused persons appeared before the same Magistrate, apparently of their own accord, and the Magistrate made an order granting them bail as well. There seems no doubt that these bail orders were made under section 497, Cr. P. C. The accused persons were ordered to be present on the 4th June, 1949, and it should be mentioned that this is a method commonly employed by ilaga Magistrates who wish to expedite proceedings in investigations. Accordingly, the record bears an order of that date by the Magistrate which contains the following words:‑
"No report. Takid, 27th June 1949."
The order clearly conveys that the ilaqa Magistrate was allow ing twenty‑three days for the Police Officer to complete his investigation of the case and submit his final rep3rt, which would be under section 173, Cr. P. C. On that day viz. the 27th June 19:19, the appellant Abdus Sattar Molla, following the example of seven of the accused person, "surrendered by petition" and asked for bail which was granted, and the case was then adjourned to the 3rd August 1949. It may be presumed that the long date was allowed as being necessary for the comple tion of investigation, but even this period did not prove sufficient, for three further adjournments had to be allowed, on dates on which all the "accused persons" including Abdus Sattar were present, before the charge‑sheet was submitted under section 173, Cr. P. C. This was against eight of the accused persons, excluding Abdus Sattar. On the 13th October 1949, the Sub -Divisional Magistrate made an order transferring the case to the file of the trial Magistrate, who was a first class Magistrate, for disposal. As the accused Abdus Sattar had been released on bail by order of the Sub‑Divisional Magistrate, it may be presumed in the absence of any further orders on the file affecting this person, that his continuing as an accused person in the case had terminated from the 13th October 1949 onwards. This conclusion is supported by another circumstance which will appear immediately.
The trial Magistrate saw the case for the first time on the 14th October 1949, and fixed it for the 19th October 1949, on which date five of the accused persons were present, and were granted bail by a fresh order, but as to the remaining three, who were present, an order was made that their sureties should produce them on the 10th November 1949, "positively". It is clear that the trial Magistrate was acting in this respect on the basis of the bail furnished by these three persons to the Sub' Divisional Magistrate. They appeared along with the other five accused persons on the next date and were also granted bail. Recording of evidence commenced on the 1st December 1949, and, the trial Magistrate stopped the proceedings during the exami nation of the s cond witness, and made an order of which the relevant portion reads as follows:‑
"No use examining other witness at this stage unless the accused Abdus Sattar is produced to stand his trial along with other accused. Issue warrant of arrest against Abdus Sattar, 9th December 1949, for evidence which will begin afresh after the appearance of the accused Abdus Sattar on the date fixed."
Abdus Sattar "surrendered by petition" and was granted bail. The further orders made by the trial Magistrate after this date, uptill the 31st July 1950, when he convicted all the accused persons are of no interest in the present discussion.
On the facts stated above, the argument advanced on behalf of the appellant is that in directing the issue of a warrant of arrest against him, after the Police Officer had excluded him from the case and the Sub‑Divisional Magistrate who had taken cognizance of the case on the 13th of October 1949, had also not chosen to proceed against Abdus Sattar, but on the other hand, appears to have discharged him from his bail bond (as it indicated by the necessity for issue of a warrant for his arrest) the trial Magistrate took fresh cognizance of the offence against him on the basis of information derived from the evidence of two witnesses examined by him. Such cognizance, for the initiation of judicial proceedings, could only have been taken by a duly empowered Magistrate under section 190, subsection (1) (c) since it could not be said to have been taken on the basis of the police report, and it was certainly not taken upon complaint. As the trial Magistrate was not empowered to take cognizance in this manner his proceedings as against Abdus Sattar Molla were ab initio void. Even if he had possessed the necessary powers, he could not proceed with the case except after due compliance with the provisions of section 191, Cr. P. C. I.e., it was necessary to inform the accused Abdus Sattar that he could have the case tried by another Court, and Abdus Sattar could object to being tried by the same Court. The record did not show that such compliance had been made; if it had there must of necessity have been some writing on the record to establish this, vide section 364, Cr. P. C., which requires that statements of accused persons should be recorded in a certain manner, whenever they are examined.
The argument in reply by the learned Advocate‑General was that when the case came to the trial Magistrate by transfer under section 192, Cr. P. C., it was not the limited case against eight accused persons which he received, but the whole offence was before him, and it was open to him to summon any person whom, upon the evidence, he considered to be implicated as an accused person in the same offence, and to try him according to law. Such action could not be described as falling under section 190 (1) (c), Cr. P. C. but could correctly be related to the police report upon which cognizance of the offence was taken by the Sub‑Divisional Magistrate. In the circumstances, no question of an option being provided to the accused under section 191, Cr. P. C. arose. It was also contended that the transferee Magistrate could exercise all the powers vested in the transferor Magistrate, in respect of the case transferred. The trial :Magistrate had acted within his powers when he tried and convicted the appellant under sections 148 and 326, P. P. C. awarding sentences of one year's rigorous imprisonment and six months' rigorous imprisonment with a fine of Rs. 300 respectively the sentences of imprisonment to run consecutively. The Sessions Judge before whom an appeal was taken by the nine convicts had dismissed the appeal of Abdus Sattar in toto, and had considered the whole case including the plea to the jurisdiction in detail. Not content with this decision, the nine convicts had preferred a petition for revision to the High Court, on which a rule was issued only in relation to the conviction and sentence of Abdus Sattar Molla to consider whether they were bad in law as being "based on misreading, misconstruction, and mis-appreciation of law". The precise point regarding the jurisdic tion of the trial Magistrate was not taken before the Division Bench of the Dacca High Court, but instead the prayer was advanced that an opportunity should be given to him to lead further evidence to prove his plea of alibi. This prayer was rejected on the ground that the rule had not been issued in regard to this ground. In the circumstances, it was urged that there was no ground upon which the Federal Court could interfere with the convictions and sen tences of the appellant, within the principles governing its special jurisdiction in criminal cases. The circumstances relating to the accused's plea of alibi are somewhat special and need to be stated in detail. Abdus Sattar Molla holds an M. A. degree and is a law student of the Dacca University. The ground on which the Investigation Officer Wali ur‑Rahman refused to send him up as an accused person in the case may be stated in the offcer's own words, viz. :‑
"I got a certificate from one of the professors of Dacca that he was not present during the time of occurrence. (Then he stated that) I got the report from the officer‑in‑charge, Lal Bagh, Dacca, that he was present in the Law class on the date of occurrence."
This witness also proved a report made at his thana Terakbada on the 19th May 1949, which is Exh. A in the case, by a person whose name and description correspond with those of Shamsur Rahman, P. W. 5, who is stated by Wali‑ur‑Rahman to be indeed the maker of this report. The report is to the effect that at about 2‑30 p.m. on the previous date, one Daud Molla was taking some catty; belonging to Nurul Huq accused, which he had caught trespassing in his field, to the pound when he was opposed by "Abdus Sattar Motla, Bagan Molla, Kanu Molla, and several other persons", who tried to take away the cattle and attacked him with weapons. Vaud) cried out for help and Abdul Samad his uncle, went up and thereafter Humayun Kabir, Daud Molla,' and Abdul Samad, were injured by nine named persons, including Kanu and Bagan, but not including Abdus Sattar. Shamsur‑Rahman (P. W. 5) is a nephew of Abdul Samad, and his statement in Court is confined to denying that he made the report proved by Wali‑ur‑Rahman. His statement that there is another Shamsur Rahman in the village, suggests that persona tiOn was practiced, but Wali‑ur‑Rahman's evidence excludes this Possibility altogether.
Additionally there are two other pieces of evidence produced by the prosecution on the record which support Abdus Sattar's plea of alibi. Daud Molls appearing as P, W, 2. stated that when he went to the spot, which is only forty yards from his house, he saw his uncle Abdul Samad receiving only two spear blows, viz., one from Nurul Huq and the second from Ghulam Rasul. Later, after mentioning the attack on Humayun Kabir followed by the attack on himself, he said he was told by his uncle that Sattar, Nurul Huq, and Ghulam Rasul, had assaulted him and, added "I also saw ballam in their hands". This cryptic statement furnishes the sole ground for supposing that Daud Molla even saw Abdul Sattar on the spot at the time of the occurrence. The fact that Daud Molla received the largest number of injuries might seem to exclude the possibility that his share in the incident was of a residuary or terminal nature. He is nephew to Abdul Samad. Another witness Abdur Rahman, P. W. 3, is a schoolmaster in the Barasat High School, and lives as a border in the house of Abdus Samad, who is related to him equally with the accused Nurul Huq. He supported Daud Molla in saying that only Nurul Huq and Rasul struck Abdul Samad. This witness made no mention even of the presence of Abdus Sattar Molla on the spot. It is true that there were a number of other witnesses, viz., the injured person Abdul Samad, P. W. 1, Abdul Karim, P. W. 4. Humayun Kabir, P. W. 6, and Alek Mullah, P. W. 11, who say that Abdus Sattar did spear Abdul Samad. Yet. all these witnesses are closely related to each other and the variant testimony of their relations Daud Molla, an injured person, and Abdul Rahman, coupled with the eviderce provided by the statement Exh. A required to be considered with great care before a conclusion could be reached regarding the participation of Abdus Sattar.
The trial Magistrate has not noticed at all that Daud Molla and Abdur Rahman, prosecution witness of at least equal credibility with the other alleged eye‑witnesses, exonerated Abdus Sattar either wholly or in part. The omission may be thought to go to the question of prejudice caused to Abdus Sattar through his being tried by the person who was the first person to conceive, and act judicially on, the idea that he too had participated in the offence. In dealing with the defence case, the trial Magistrate has contended himself with saying that the statement Exh. A is denied by Shamsur Rahman and is not support by anything "except the statement of the Investigating officer", whose conduct the Magistrate has criticized in strong terms. Five paragraphs of the trial Court's judgment are taken up with discussion of this matter, the result being that the Investigating Officer has been characterized as "this irresponsible Station Officer, who has unmistakably shown all through a very reprehensible conduct in the matter of investigation of the case. It falls to be observed that if the trial Magistrate had formed this view on the basis of the evidence led before him and wished to give expression to it in his judgment, it was his duty to bring these matters to the notice of the officer concerned, and to allow him an opportunity of offering an explanation. In the absence of such opportunity for explanation, the trial Magistrate's criticism are not based on a balanced appreciation of both sides of the matter. His observations appear to me to be completely unfair to the Investigation Officer.
In the appellate judgment of the Session5 Judge, the opinion formed regarding the statement Exh. A is that it was "inspired by interested quarters" and as it "could be used only" against Shamsur Rahman, it affected the prosecution case "very little". As regards the witness Daud Molla, the Sessions Judge noted that he had heard about Abdul Sattar's participation in the attack from the injured person Abdul Samad but had himself noticed Sattar on the spot. As to Abdur Rahman, the Sessions Judge concluded that he only "arrived after all had been over with the blow given by Sattar", and he was also moved by the consideration that it was "not known how far he has been influenced by the attempt of the defence to save Sattar‑the most important man in the party of the appellants". Like the trial Magistrate, the Sessions Judge preferred to believe the other witnesses who clearly implicated Abdus Sattar. The point was not allowed to be raised before the High Court. The case for Abdus Sattar on the point, as pressed before us, was, that at the trial he had relied for establishing his alibi upon, firstly, his exoneration by the Investigating Officer in the initial report and by the Sub‑Divisional Magistrate at the earliest stage of the judicial proceedings, and secondly, the evidence constituted by the report Exh. A, coupled with the direct support of Abdur Rahman P. W. and the partial support of Daud Molla P. W., as well as the statement of Wali‑ur‑Rahman, as sufficient to establish his alibi. In fact, on the date and at the time of the occurrence he was present at Dacca attending law classes, and after the dismissal of his appeal by the Sessions Judge, he obtained a certificate from three of his professors, duly signed by the Dean of the Faculty of Law in the University of Dacca to the effect that he attended three classes on the 18th May 1949, at the Dacca University, as a student of the 2nd year L.L.B. Special Class. It was this certificate which he sought to produce and support by evidence before the High Court, but permission to do so was refused to him.
It is not necessary for the purposes of this case to reassess the evidence on this point. Indeed, it is not the practice of this Court to deal with findings of fact concurrently arrived at in the Courts below. A point taken in the grounds of appeal to this Court which is mentioned in the order granting special leave to appeal is that the petitioner did not receive a fair hearing in the High Court. It appears to be an established practice of the High Court of Dacca not to allow any grounds to be urged in support of a revision petition except the ground or grounds on the basis of which a rule has been issued in l the first instance. It has been urged on behalf of the appellant that this practice is not in accordance with the requirements) of law contained in sections 435 and 439 read with section 423,1a Cr. P. C. The point need not be decided for the purposes of the present case, but it cannot be denied that there is considerable force in the contention that having regard to the very wide powers which the High Court may exercise under section 439 read with section 423, after perusal of the record and after hearing the petitioner, the practice of confining the High Court's attention at this stage of the case to such matters as attracted the attention of the Bench which admitted the petition, and which had nothing the ,judgments of then Courts below, upon which to go, entails a danger that points may be overlooked which very seriously affect the justice of the case.
The principal question which arises is however that relating to the initiation of judicial proceeding against the appellant by the trial Magistrate on the 1st December 1949. For the Crown, it is contended that this did not amount to taking of cognizance by the trial Magistrate of the offence committed by Abdus Sattar, since his offence was the same as that of the other accused persons, by virtue of application of the rules of con 6tructive liability, and cognizance of the whole offence had already been taken by the Sub‑Divisional Magistrate on the 13th October 1949. The authorities relied upon for the Crown are the cases of Hafiz‑ur‑Rahman v. Aminul‑Huque, (supra) of Bhem Bhera, (supra), and of Hemendra Nath (supra). The first mentioned case was decided by a single Judge and had been commenced on complaint against eight persons, of which cognizance was taken by a Sub‑Divisional Magistrate, who after enquiry under section 201, Cr. P. C., summoned only one of the eight persons accused in the complaint and, without saying anything definitive concerning the other seven, transferred the case under section 192, Cr. P. C., to a first class Magistrate for disposal. Proceedings were continued in the trial Court against the single accused person mentioned above, until he died, and then on petition filed by the complainant asking for action against the others, one of the latter was summoned by the trial Magistrate and after proper trial was convicted. The High Court took the view that the mere failure of the Sub‑Divisional Magistrate to summon a particular accused person in a complaint case does not amount to dismissal of the complaint against such person. In such cases the whole complaint, against all the accused persons, must be deemed to have been transferred unless the transferring Magistrate indicates that he either was dismissing the complaint as against some of the accused persons, or that he did not intend to transfer the case against some of them. In the third case, the position was to some extent similar. It was instituted on a complaint, which was to the effect that the accused person had induced the complainant to part with a sum of money on a false pretext that it was to be paid as a bribe to a Police Officer, namely, Hemandra Nath. The complaint was transferred b5 the District Magistrate to a Court of a competent jurisdiction, which held enquiry under section 201, Cr. P. C. and summoned not the person accused by the com plainant, but instead summoned Hamendra Nath on a charge of attempted bribery.
Neither of these cases bears any resemblance, in relevant respects, to the present case, which was instituted on a police report, to which section 200/203 of the Code have no relevance. Indeed, two circumstances viz., the exoneration of Abdus Sattar by the Investigating Police Officer, and the significant omission by the Sub‑Divisional Magistrate to take any action in respect of the appellant, indicating that there was differential treatment of his case, when transferring the case against the eight other accused persons to the trial Magistrate, might be thought to attract the exceptions specified in the latter Calcutta case of 1941. But, in fact, these two precedent cases fall under a wholly different set of procedural rules, from the case of the appellant.
The facts in the case of Bhim Bhera resemble those of the present case somewhat more closely, but there are significant differences. The case was commenced on a police report against certain merchants who were prosecuted for having moved food grains contrary to a movement Control Order. Foodgrains had been moved in carts which were in the charge of four cartmen who were named in the report. Cognizance of the case was taken by a Sub‑Divisional Magistrate, who transferred the case for disposal to a First Class Magistrate, before whom an application was moved for making the cartmen accused persons in the case. This was accepted, and the consequence was that the merchants were acquitted, as the only evidence against them was that of the cartmen. The cartmen were however convicted. In rejecting the plea that cognizance could not be taken of the case against the cartmen by the trial Magistrate, who was not empowered for the purpose of taking cognizance on his own information or suspicion, reliance was placed on the case of Hafiz‑ur‑Rahman v. Amin‑ul‑Huque (supra). It appears to have been overlooked that the latter case was a complaint case and proceeded on wholly different facts. On the other hand, the facts of BUM Bera (supra) case bear a very close resemblance to those in the case of Chedi (supra), where a person had been prosecuted under section 186, I. P. C., for obstructing a Police Officer, on the allegation that his servant Chedi being in charge of certain licensed premises had refused to allow certain police officers to enter them for the purposes of inspection. The case was instituted on police report, and the Magistrate acquitted the master, but immediately thereafter proceeded against Chedi and convicted him of the same offence. In the Allahabad High Court a Single Judge held that cognizance of the case against Chedi was taken, in the circumstances of the case, on the Magistrate's own information, and as there had been failure to comply with the provisions of section 191, Cr. P. C., the trial was bad for want of jurisdiction. Chedi's case was cited before the Judicial Committee in the case of Abdur Rahman (A I R 1929 P C 44), and the judgment of Lord Phillmore clearly shows that their Lordships took the view that, as against Chedi, the Magistrate took cognizance under clause (c) of subsection (1) of section 190, Cr. P. C.
It is probable that if the cases of Chedi and Abdur Rahman (supra), had been placed before the Patna High Court fn the case of Bh;m Bera (supra), the learned Judges would have reached a different conclusion. It is noteworthy that they were of the opinion that, although the trial Magistrate in taking up the case against the cartmen was dealing with the same offence of which cognizance had been taken by the Sub‑Divisional Magis trate, nevertheless it would have been more proper for the case to have been tried by another Magistrate from that point onwards. It is difficult to explain this opinion on any other ground than that, by his having formed, for the first time, the opinion that the cartmen had committed an act which constituted an offence, the trial Magistrate was in some way rendered unsuitable for the purpose of trying the case. That is the precise principle underlying the rule embodied in section 191, Cr. P. C. For the initiation of a criminal judicial proceeding in respect of an offence, against a person, it is at the outset necessary that the opinion should be formed that facts exist to show that there is reasonable ground for thinking that such person has committed such offence. Such opinion may be formed by a complainant, and presented in the shape of a complaint and it is obvious that the matter can be decided inter parties by a Magistrate without prejudice to either side, assuming what is normal, viz., that the Magistrate has no private knowledge of, or concern with the case. A similar opinion underlies a police report made after due investigation. But where it is the Magis trate himself who, for the first, forms the opinion that an offence has been committed by a particular person, if he proceeds to act under his magisterial powers to try that offence, there is an obvious danger of prejudice to the accused person from this initial circumstance. One factor which the accused will have to meet by means of his defence will be the existence of an opinion adverse to him in the Magistrate's mind. The strength of this opinion, and its consequent weight as against the accused person will vary according to the circumstances, and it is for that reason that the law requires, by a mandatory provision, that the option shall be given to the accused person whether or not he will be tried by the same Magis trate.
This question, however, is consequential upon and subsidiary to the question whether the Magistrate has power in himself to take cognizance upon his own information or suspicion, as distinct from taking cognizance on a complaint or a police report. I am in respectful agreement with the opinion indicated by the Judicial Committee in Abdur Rahman's case that when a Magistrate commences proceedings against a person, in the course of the trial of another person, albeit for the same offence, such action by the Magistrate constitutes taking of cognizance as against the first‑mentioned person under clause (c) of subsection (1) of section 190, Cr. P. C. In view of the clear expression of opinion by the Privy Council on this point which was by law binding upon all Courts in India, it is unnecessary to canvass in any detail, the contrary view contained in certain of the judgments of the India High Courts which have been cited at the bar. The latter view is based in the main upon the proposition that cognizance is never taken as against persons, but always of offences, and therefore, when cognizance is taken by a competent Magistrate of an offence it must be deemed to have been taken not only in respect of all persons who are alleged to have been involved in the offence, whether they be cited as accused persons or not, but also against all persons who may at any time in the exigencies of the trial be believed to have been involved in the offence, and who may be proceeded against on the basis of that belief. Thus, in the case Girdhari Lal (21 C W N 1950) where the matter came up before a Court on a complaint under section 476, I. P. C., made by a Civil Court which cited a single accused person, and in the course of the proceedings, another person was summoned as accused, when this action was challenged on the ground that the second person's name was not in the complaint, the High Court met the argument on the ground that the complaint was not of offenders, but of the whole offence, and the following observation was made :‑
"The Magistrate is seized of the whole case, and it is his duty to deal with the evidence before him and see that justice is done in regard to any who may be proved by the evidence to be concerned in that offence."
I the case Baksi v. Muhammad Yunus (44.Cr L.J 612) cognizance of an offence of defamation by publication in a newspaper was taken by the District Magistrate upon complaint against the printer, publisher, and editor, of the newspaper. The complaint was subsequently transferred by a High Court order to a Deputy Magistrate. Further investigation showed that the proprietor of the newspaper was also involved in the offence, and a fresh complaint was made against him to the District Magistrate who issued a summons to the proprietor and this action was challenged in the High Court on the ground that only the Deputy Magistrate could deal with the newly accused person. The High Court made an order sending the case to the Deputy Magistrate for disposal, and in the course of his supporting judgment Shearer, J. observed as under :‑‑
"It cannot be said that in entertaining the case against Muhammad Yunus, cognizance is being taken of the offence, as cognizance of the offence has already been taken."
In neither of these cases was the question of the competency of the trial Magistrate to take cognizance as against the newly accused persons separately investigated or decided and indeed, on the view taken, that question did not arise for decision.
In my opinion, the view taken in these two cases, and in a number of other cases which need not be cited in detail is not one which can be supported on a proper construction of the relevant provisions of the Code. It is not wholly correct to say that cognizance is related exclusively to offences, and has nothing to do with the persons involved in such offences. It is true that there may be a complaint of an offence against a person or persons unknown, but the greatest number of allegations of offences are against known and named persons. Although the expression "cognizance" is nowhere defined in the statutes, its import is very well understood. The type of cognizance relevant for the purposes of the present discussion is that which comes into play at the very commencement of a judicial' proceeding. I can see no reason why, if the first judicial step constituting commencement of proceedings against 3 particular accused person, is taken in the course of pending proceedings against other person, that cannot be regarded as initiation of the proceedings as against that particular person, requiring to be performed, subject to the same conditions as apply to the ordinary case, under section 190, Cr. P. C. That such a construction is not foreign to the Code will be plain from a simple reading of section 197, which lays down a condition precedent to the prosecution of certain persons e.g., Judges, Magistrates, and public servants, who are not removable from their office except by the order of a Government. The section provides that when any such person "is accused of any offence alleged to have been committed by him while acting or purcorting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction" of certain specified authorities.
A case can be easily conceived in which such a person may appear, on the basis of evidence led in proceedings against other persons, to have committed, in the discharge of his official duty, an act which constitutes participation in the same offence. Thus, if the accusation be in regard to, say, avoidence of customs duty by a process of cheating involving the making of orders by an officer such as a Collector of Customs, who is not removable from his office except by a Government order, the question of the guilt or otherwise of such Collector of Customs would turn upon the intention with which he made his orders. It may well be that in the course of the investigation, no evidence may appear to indicate a guilty intention in the mind of such officer, but in the course of the trial, such evidence may appear, and thereupon it may become necessary for the Court to proceed against him, for participation in the same offence. If, now, the officer's offence be deemed to be incapable of separation from the offence ass whole, he cannot be summoned and proceeded against unless the entire proceedings be declared null and void, and sanction of the appropriate Govern ment is first obtained. On the other hand, if the officer's offence be regarded, for the limited performance of taking cognizance, as a separate offence then he can be proceeded against after sanction has been obtained, without the other proceedings being affected by his being accused of the same offence. There is, of course, nothing to prevent him from being tried separately from the other persons accused in the case, and therefore ft would be in such a case both simpler and more appropriate, and in my opinion, also in better accord with the express words and the underlying intention of sections 190 and 197, Cr. P. C , to consider that cognizance of the offence as against such officer is separately taken from the time when the trying Magistrate forms the opinion on the basis of information received by him from the evidence in the proceedings, that the officer too is liable for the same offence.
Even as regards cognizance of offences, when in the course of a trial of certain persons for one offence, facts are brought to light which indicate that they have also committed another offence, and the Court purports to proceed against them for the newly ascertained offence, it is simpler, and again in my view, in better accord with section 190, Cr. P. C., to regard the Court as taking cognizance of the new offence, as an initiation of proceedings for that particular offence, than as taking subsidiary or collateral action In respect of the offence originally charged. The fallacy underlying the latter view is exposed if it be supposed that in the case stated, the newly ascertained offence is one of which cognizance cannot be taken unless a previous condition is first satisfied. In such a case, even though it may be possible by some process of argument to show that both offences arise out of the same facts, it is evident that the argument that cognizance of the whole offence or all offences arising out of the same facts has already been taken cannot prevail, but it will be necessary, for the Court to stay proceedings and not to proceed with the trial of the newly ascertained offence until the necessary condition is satisfied. A class of cases of this kind is provided for in section 230, Cr. P. C. and this section can also, in my view, be called in aid to support the conclusion that of necessity, under the law, cognizance of the newly discovered offence, must be taken anew, and subject to the other conditions prescribed by law.
Procedural, requirements of the criminal law are not, mere formalities. Underlying the rules of procedure is an all pervading care to ensure the liberty of the subject and the due dispensation of justice. Certain observation appearing in a num ber of judgments cited during the argument in this case appear to me to be likely to defeat this purpose by undue enlargement of the powers of Magistrates on the basis of assumptions which are not well‑founded in law. Some of these views may be interpreted so as to enlarge the powers of a transferee Magistrate beyond those with which he is invested e.g. to take cognizance on his own information or suspicion, of an offence appearing in the course of a pending proceeding, although he is not empowered to take cognizance in this manner. The rights of accused persons also are placed in jeopardy as a result of the acceptance of such views, e.g. where on certain assumptions, a Magistrate who clearly takes cognizance of an offence otherwise than on the basis of a complaint or a police report, may yet be regarded as not taking cognizance on his own information or suspicion, and in consequence, the right of the accused to object to being tried by the person who was the first to form the opinion that facts existed showing that he had committed an offence, is taken away. Any view of the law which leads to con sequences of this kind must, in my opinion, be rejected. It would violate for fundamental principle that penal laws must be interpreted strictly, and in favour of the subject not so as to deprive him of his legal rights.
It is unnecessary to make any artificial assumptions or to rely upon any general propositions for the purpose of interpreting and correctly applying the procedural rules relating to cognizance of offences taken by judicial officers in the course of judicial proceedings. No difficulty arises if it is held that such cognizance is taken as against the person affected, from the time when the judicial officer concerned first conceives the opinion that he has committed the offence. The rule of Chedi's case would, in my opinion, apply to all such taking of cognizance, otherwise than in exceptional circumstances which it is not necessary to examine here.
So far as concerns the case of Abdus Sattar Molla. I am satisfied that the cognizance of the offence cannot be related back, in the circumstances of the case, to the taking of cognizance of the offence as against the other eight accused persons, by the Sub‑Divisional Magistrate, and therefore such cognizance in the sense of institution of proceedings judicially, must be deemed to have been taken by the trial Magistrate. He was, as already stated, not competent to take cognizance on his own information or suspicion. Even if this difficulty had been removed by a reference to the properly empowered Magis trate, or might be overcome by some process of construction of the relevant law, it would still have been necessary for the trial Magistrate to act under section 191, Cr. P. C. so as to allow to Abdus Sattar Molla the right belonging to him under law to avoid a trial by the same Magistrate. The failure to take such action goes in my opinion to the capacity of the trial Magistrate to try Abdus Sattar Molla and this affects his jurisdiction in another and not less serious sense. These defects, in my opinion, are sufficient to vitiate the trial and therefore, the conviction must be quashed. On the view which I have formed of the case appear ing on the record against the appellant, I do not think it would be proper to order a retrial.
In accordance with the majority opinion, the appeal is allow ed. The convictions and sentences are set aside and the appellant is discharged from his bail‑bond. There will be no order for a fresh trial.
A. H. Appeal allowed.
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