LAWS(PVC)-1927-3-83

EMPEROR Vs. SHIVASWAMI GURUSWAMI

Decided On March 07, 1927
EMPEROR Appellant
V/S
SHIVASWAMI GURUSWAMI Respondents

JUDGEMENT

(1.) [His Lordship, after stating the facts as above, proceeded :] It is argued by the learned Government Pleader that one of the offences, namely, that under Section 414, was a cognizable offence and therefore the investigation was legal, and even if the case be considered as relating to non-cognizable offences, the report of the Police should be considered as a complaint under Clause (a) of Section 190 of the Criminal Procedure Code, if it did not fall under Clause (b) of Section 190. It. appears that the offence under Section 414 of the Indian Penal Code mentioned as one of the offences in the charge-sheet is a cognizable offence, and the investigation by the Sub-Inspector in respect of the other non-cognizable offences could not be illegal if they were also investigated during the investigation of the cognizable offences. See the case of In re Venkanna [1925] A.I.R. Mad. 856. As no offence under Section 414 is either alleged or proved to have been committed by the accused it will be necessary to treat the present case as relating to non-cognizable offences. The question, therefore, that has to be decided in the present case is whether the charge-sheet sent by the Sub-Inspector in this case can be treated as a report in writing of such facts made by any police-officer, under Clause (b) of Section 190, or a complaint under Clause (a) of Section 190, and whether the learned Magistrate could take cognizance of the present case either under Clause (a) or (b) of that section. In the Full Bench case of King- Emperor V/s. Sada (1901) I.L.R. 26 Bom. 150: s.c. 3 Bom. L.R. 586 F.B. it was held that there is no section in the Criminal Procedure Code, 1898, which empowers a police-officer to make, of his own motion, any report to a Magistrate in a non- cognizable case; hence, where he flies a formal complaint in such a case, he cannot be said to make a report and his complaint falls within the definition of complaint in Section 4(h) of the Criminal Procedure Code, 1898. In that case, the police officer, as a matter of fact, had filed a formal complaint of a non-cognizable offence, and he was ordered by the Magistrate under Section 250 to pay compensation to the accused, and it was argued that the definition of complaint in Section 4(h) excluded a police report and that when a police-officer brought any facts to the knowledge of a Magistrate, he was a really making a police-report and was not making a complaint, and therefore Section 250 was not applicable. It is with reference to this argument that it was held that in a non-cognizable offence, a police-officer was not empowerd to make, of his own motion, any report to a Magistrate, and that when he actually filed a formal complaint he was not, in fact, making a report. The point which arises in this case is not, therefore, covered by the decision of the Full Bench. But it appears that it was held in the Full Bench decision that there was a close connection between. (a) "the report of a police-officer" which is by Section 4(1)(h) of the Code excluded from the definition of "complaint;" (b) the report of a cognizable offence, which a police-officer is to send to a Magistrate empowered to take cognizance of such offence upon a police report ( Secs.167, 173); and (c) the cognizance of any offence, which a Magistrate may take upon a police report of the same ( Section 190(1)(b)).

(2.) There is a change in the wording of Clause (6) of Section 190. The words "upon a police report of such facts" have been changed into "upon a report in writing of such facts made by any police officer." It appears that under Act X of 1872, Section 140, a Magistrate was empowered to take cognizance of an alleged offence upon information or report by a police-officer as to a non-cognizable offence. Such information or report was to be regarded as a complaint. The Code of 1882 did away with the report of a police-officer in a non-cognizable case except by an order of the Magistrate and the informant was to be referred to a Magistrate. If the police made a report after investigation under Section 155, Clause (2), under the order of a Magistrate, it would fall under Clause (b) of Section 190 of the Criminal Procedure Code even though the offence was a non- cognizable one. 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. If the report in writing by a police-officer be restricted to a report which a police-officer is authorized to make under Section 173 in respect of a cognizable offence, the same meaning will have to be attached to the words "report of a police-officer" which is excluded in the definition of complaint in Section 4(h) of the Criminal Procedure Code. It would, therefore, follow that the report of a police-officer in respect of a non-cognizable offence if it contains an allegation in writing to a Magistrate with a view to his taking action under the Code that some person has committed an offence, would amount to a complaint within the meaning of Section 4(h). There is no difference in the Code as to the procedure to be followed by the Magistrate under Section 190, Clause (a) and the procedure to be followed by the Magistrate under Section 190, Clause (b), except that provided by Chapter XVI, i.e., Secs.200 to 208 of the Criminal Procedure Code. Before the amendment of Section 200 by Clause (aa), it might have been necessary to examine the police-officer if his report in regard to a non- cognizable offence was treated as a complaint, but under the present Section 200, Clause (aa), the examination of the police-officer who is a public servant acting or purporting to act in the discharge of his official duties is not necessary. In Bhairab Chandra Barua V/s. Emperor (1919) I.L.R. 46 Cal 807 it was held that a police report in a non-cognizable case was either a "complaint" under Section 4(h), or a "police report" under Section 190(1)(b) of the Criminal Procedure Code, and the Magistrate had jurisdiction to take cognizance of a non-cognizable offence on a police report. The decision in the Calcutta case followed an earlier case, Harihar Roy V/s. Emperor (1918) I.L.R. 46 cal. 810, n, and the ground of the decision was that in the definition of "complaint" in Section 4(1)(h) of the Code it was stated that the term did not include "the report of a police-officer", and that if the expression "police-report" was to have a restricted meaning, then the meaning of the expression "report of a police-officer" must be strictly restricted so as to bring the report made by the police-officer of his own motion in a non-cognizable case within the definition of "complaint". In the Full Bench case of The Public Prosecutor V/s. Ratnavelu, Chetty (1926) I.L.R. 49 Mad. 525, F.B. it was held that, by virtue of Section 190(1)(b) and Section 200(aa) of the Criminal Procedure Code, the 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. Waller J., one of the referring Judges, at p. 532 has laid stress upon the words "upon information received from any person other than a police-officer " in Clause (c) of Section 190, and says that the Criminal Procedure Code obviously contemplates the possibility of information other than a formal report under Section 173 being received by a Magistrate from the police, and that the Legislature did not intend that the Magistrate though empowered to take cognizance on information from any other person must, when he receives information from a police-officer of a non-cognizable offence, hold his hand and decline to take cognizance. The view adopted in Bhairab Chandra V/s. Emperor is accepted by Madgavkar J. in Emperor V/s. Abasbhai (1925) 28 Bom. L.R. 272, 280.

(3.) Under Section 529, Clause (e), if any Magistrate not empowered by law to take cognizance of an offence under Section 190, Sub-section (1), Clause (a), or Clause (b), erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered; whereas under Section 530, Clause (k), if any Magistrate, not being empowered by law takes cognizance under Section 190, Sub-section (1), Clause (c), of an offence, his proceeding shall be void. A distinction is, therefore, made between a Magistrate taking cognizance under Section 190, Sub-section (1), Clauses (a) and (b), and Sub-section (1), Clause (c), The word "empowered" in Secs.529 and 530 may refer to the ordinary or special powers referred to in Secs.36 and 37 and Schedules 8 and 4 of the Criminal Procedure Code. In the case of a Magistrate not empowered under Secs.36 and 37 to take cognizance of an offence under Section 190, Sub-section (1), Clauses (a) and (b), erroneously in good faith takes cognizance, his proceedings shall not be set aside on the ground of his not being empowered. In the present case, the Sub-Divisional Magistrate, as a matter of fact, was empowered under part 4 of Schedule 3 of the Criminal Proceedure Code to take cognizance of a non-cognizable offence under Section 190, Sub-section (1), Clauses (a) and (b), and did, as a matter of fact, take cognizance of this case on a police-report of a non-cognizable offence, and framed a charge against the accused. The proceedings of the Sub-Divisional Magistrate would, therefore, be less open to objection by virtue of Section 529, Clause (e). Speaking for myself, I am inclined to take the view that a Magistrate can in a proper case treat a police report of a non-cognizable offence as a complaint and take cognizance under Section 190, Clause (a), of the Criminal Procedure Code. I have the less hesitation to take that view in the present case where a charge-sheet was sent by Bando, the Sub-Inspector, who was the official superior of the present accused, a Head Constable, and who would, in the ordinary circumstances, be the person investigating an offence committed by his subordinate. Bando was examined as a witness in this case and in his evidence before the Court has fully supported the allegations against the accused.