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Criminal Revision No. 433 of 1957, decided on 4th December 1958.
Magis trate empowered to take cognizance of even non‑cognizable offence upon a police report.
Under section 190 (1) (b) of the Code of Criminal Procedure, a Magistrate can take cognizance of an offence on a report in writing by a police officer. The wording is quite general and would include even 'a non‑cognizable offence being taken cognizance of by a Magistrate upon a report in writing by a police officer.
Emperor v. Chandri Bawoo I L R 49 Bom. 212 ; In the matter of Nagendra Nath Chakravarti I L R 51 Cal. 402 ; Naresh Chandra Das and others v. King Emperor 75 C L J 507 ; The King Emperor v. Khwaja Nazir Ahmad 80 C L J 19 ; The Public Prosecutor v. Ratnavelu Chetty I L R 49 Mad. 525 ; Emperor v. Shivaswami Guruswami I L R 51 Bom. 498 and Bholanath Das and others v. Emperor 28 C W N 490 ref.
M. Fazlul Haq for Petitioner.
B. N. Chowdhury for the State.
This Rule was issued on ground No. 1 calling upon the District Magistrate of Pabna to show cause why the order of the Sessions Judge, Pabna, dated the 3rd of July 1957, vacating the order of discharge by the Magistrate by his order, dated the 20th of February 1957, and directing further inquiry should not be set aside.
The prosecution case is that one Subarna Banarjee filed a petition before the Circle Inspector of Police, Pabna, making certain allegations against the petitioner and 4 others which amounted to an offence under section 384 of the Pakistan Penal Code which is a non‑cognizable offence. The police‑officer had no authority from the Magistrate to make investigation under subsection (2) of section 155 of the Code of Criminal Procedure and without taking any sanction from the Magistrate he submitted the prosecution report whereupon the learned Magistrate took cogni zance of the case and commenced trial of the accused persons and examined as many as 8 witnesses who were cross‑examined, by the accused. Thereafter the learned Magistrate by his order, dated the 20th of February 1957, discharged the accused persons under section 253 (1) of the Code of Criminal Procedure holding that the proceeding as against the petitioners was void ab initio. Thereafter, the State moved the Sessions Judge in his revisional jurisdiction under section 439 of the Code of Criminal Procedure and the learned Sessions Judge, by his order, dated the 3rd of July 1957, set aside the order of discharge passed by the learned Magistrate and directed further enquiry. The petitioner there after, moved this Court in exercise of its Criminal Revisional Jurisdiction and obtained the present Rule on ground No. 1 which runs thus
"For that the order of the learned Sessions Judge setting aside the order of discharge and directing the learned Magistrate to hold further enquiry into the case is illegal, ultra vires, and without jurisdiction inasmuch as the learned Magistrate having no jurisdiction to take cognizance of the case upon a police report which is the result of an investigation without the sanction of tl e Court in contravention of the provisions of sub section (2) of section 155, Cr. P. C. the whole proceeding was ab initio void and the learned Magistrate's order of discharge was in accordance with law."
Mr. M. Fazlul Huq, the learned Advocate appearing on behalf of the petitioner, has submitted before this Court that the offence being non‑cognizable the police had no power of investi gation without the sanction of the Magistrate and the learned Magistrate could only take cognizance under section 190 of the Code of Criminal Procedure and the report submitted by the police in contravention of section 155 (2) of the Code of Criminal Procedure was bad and the learned Magistrate could not take any cognizance of the case. He has cited the decisions in the cases of Emperor v. Chandri Bawoo ( I L R 49 Bom 212), In the matter of Nagendra Nath Chakravarti (I L R 51 Cal. 402) and also Naresh Chandra Das and others v. King Emperor (75 C L J 507) in support of his argument.
Mr. B. N. Chowdhury, the learned Advocate appearing for the State, has however argued before this Court that under sub section (2) of section 155 of the Code of Criminal Procedure the police could not investigate a case of non‑cognizable offence without the sanction of the Magistrate, but there is no bar to his making a report and the Magistrate could very well take cogni zance of the case under section 190 (1) (b) of the Code of Criminal Procedure read with section 200 (aa) of the said Code. He has also relied on the cases of The King‑Emperor v. Khwaja Nazir Ahmad (80 C L J 19), The Public Prosecutor v. Ratnavelu Chetty (I L R 49 Mad. 525) and Emperor v. ,Shivaswami Guruswami (I L R 51 Bom. 498) in support of his argument.
Mr. Huq also relied on the decision reported in the case of The Public Prosecutor v. Ratnavelu Chetty, cited by the learned Advocate for the State. He also took me through sections 155, 157, 170, 173, 200 (aa) and 190 (1) (b) of the Code of Criminal Procedure.
Section 155 (2) provides
"No police‑officer shall investigate a non‑cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial, or of a Presidency Magistrate."
Section 157 deals with the procedure where cognizable offence is suspected. Section 170 deals with the cases to be sent to Magistrate when evidence is sufficient and section 173 provides that every investigation under Chapter XIV shall be completed without unnecessary delay, and, as soon as it is completed, the Officer in charge of the police station shall forward to the Magistrate a report, etc. This section deals with the final report of the police. If the report is that an offence has been committed the Magistrate can take cognizance of it under section 190 (1) (b). Section 190 (1) (b) deals with cognizance of offences by Magistrates upon a report in writing of such facts made by any police‑officer. Evidently, the police‑report mentioned in section 190 (1) (b) also includes the report other than that mentioned in section 173, Cr. P. C. Section 200 (aa) provides
"When the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a com plainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties."
Evidently, in this case, the Magistrate took cognizance of the case under section 190 (1) (b) of the Code of Criminal Procedure and issued a warrant against the petitioners who submitted to the jurisdiction of the Court and witnesses were examined and cross-examined and finally the Magistrate discharged the accused under section 253 (1) of the Code of Criminal Procedure on the ground that the cognizance of the offence was ab initio null and void. Section 253, sub‑section (1), however, provides
"If, upon taking all the evidence referred to in section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."
There was a motion by the State against the order of dis charge and the learned Sessions Judge has referred to certain decisions in his judgment and has come to the finding that section 190 (1) (b) of the Code of Criminal Procedure includes even the police‑report regarding a non‑cognizable offence and his examination on oath was not necessary and the cognizance was not void ab initio and he has set aside the order of discharge and directed further inquiry in the matter.
The case reported in I L R 49 Born. 212, relied on by the learned Advocate for the petitioner, does not help him at all. The facts of that case are quite different and do not support the petitioner's contention that the report by the police to the Magis trate was without jurisdiction. In the case of In the matter of Nagendra Nath Chakravarti, their Lordships Mokerjee and Chatterjee, JJ., have referred to the changes introduced by way of amendment to the Criminal Procedure Code and at page 414 their Lordships have observed : "It would be observed that the expression police‑report' which had been interpreted in a technical sense has been replaced by the non‑technical expression report made by any police‑officer." In the decision, reported in 75 C L J 507, relied on by the learned Advocate for the petitioner in support of his argument, it has been held that Chapter XIV of the Criminal Procedure Code applies to (1) investigation in cognizable cases, (2) investigation in non‑cognizable cases only when the requirements of section 155 are satisfied." But that is not the point in issue. 1 do not see that this case in any way takes away the power of the Magistrate to take cognizance of an offence under section 190 (1) (b) of the Code of Criminal Procedure on a report in writing by the police stating facts constituting the offence. The case reported in I L R 51 Bom. 498, relied on by the learned Advocate for the State, definitely lays down towards the bottom of page 503 that "Apart from any decided cases, the wording of section 190 empowers a Magistrate to take cognizance of any offence upon a report in writing of such facts by any police officer. The wording is quite general and would include even a non‑cognizable offence being taken cognizance of by a Magistrate upon a report in writing by a police‑officer." Their Lordships in that case also referred to the fact that the question of jurisdiction was not raised in the initial stage of the case although it is a settled principle of law that no amount of consent of a party or parties can confer jurisdiction in a case where the Court had no jurisdiction.
The case reported in 80 C L J 19, cited by the learned Advocate for the State, is a case of non‑cognizable offence. In the case of Bholanath Das and others v. Emperor (28 C W N 490), cited by the learned Advocate for the State, it has been observed
"In the present case, the Magistrate has purported to take cognizance upon a report, which, the Crown admits, is not a police‑report as contemplated by section 173. The Crown says that he was justified in so doing by reason of the provisions of section 190 (1) (b) which provides that a Magistrate empowered in that behalf may take cognizance of any offence upon a report in writing made by any police‑officer. It is said on behalf of the petitioners that having regard to the words in section 170 empowered to take cognizance of the offence upon a police report the words of section 190 (1) (b) must refer not to a cognizable offence but to a non‑cognizable offence and it is said that in the case of a cognizable offence, having regard to the clear words of section 170 to which I have referred, a Magistrate can only take cognizance upon a police‑report as contemplated by section 173 and upon no other report. There is, I think, considerable force in this argument but, after all, the provisions of section 190 extend to any offence and, I think, notwith standing the use of the words police‑report' in section 173, that section 190 (1) (b) cannot be restricted merely to non cognizable offences and that a Magistrate is empowered by section 190 (1) (b) to take cognizance both of cognizable and non‑cognizable offences upon a report such as is mentioned in section 190 (1) (b)."
The decision reported in I L R 49 Mad. 525 also supports the opposite party. That case also lays down the rule
"By virtue of sections 190 (1) (b) and 200 (aa) of the Criminal Procedure Code, Magistrates mentioned in section 190 are entitled to take cognizance of even non‑cognizable offences upon a report made in writing by a police‑officer without examining the officer upon oath."
Having regard to the above facts and circumstances, I am of opinion that the Magistrate was not without jurisdiction in taking cognizance of a non‑cognizable offence under section 190 (I) (b) of the Code of Criminal Procedure on the police‑report although the police might not have any authority in the case without the sanction of the Magistrate, and, in fact, the petitioners also did not question the jurisdiction of the Court at the initial stage.
There is, therefore, no substance in this Rule and it is accordingly discharged. The stay order issued by this Court on the 26th of August 1957, is vacated.
Z. A.S.
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