(CHIGURUPATI) VENKATA SUBBA RAO Vs. NARAHARISETTY ANJANAYULU

JUDGEMENT

(1.) This is a petition to revise an order of the learned Sessions Judge of West Godaveri directing further inquiry into a complaint of kidnapping. This complaint of kidnapping had been originally made to the police on 15 March 1931. The police sent a referred charge sheet to the Subdivisional Magistrate who ordered the police to put in a charge sheet. In reply to this the police again put in a referred charge sheet; meanwhile the Subdivisional Magistrate who passed the order directing a charge sheet to be put in was succeeded by another.

(2.) The latter agreed with the police and by his order on 27 June 1931 directed the ease to be treated as one of a civil nature. An application to revise this order was made before the Sessions Judge who ordered further inquiry into the complaint and it is against this order that this revision petition has been filed. The matter really turns upon the question as to whether the Subdivisional Magistrate who directed the police to put in a charge sheet took cognizance of the case or not. The view of the learned Sessions Judge was that he took cognizance and that therefore the case could not be disposed of by the order of his successor accepting the referred charge sheet and remained pending. It is agreed both by Mr. Jayarama Ayyar who argued the case for the petitioner and by Mr. Bewes for the Crown--and it is quite obvious-- that the order directing the police who had put in a referred charge sheet to put in a charge sheet was not a legal order. The police must be allowed to form their own opinion of a case when submitting their report and a Magistrate cannot ask them to change their opinion merely because he does not agree with them. In this case the police were quite entitled to do what they subsequently did, and I think they were right, when they still entertained their former opinion, to submit another referred charge sheet instead of a charge sheet. It is clear from the Code and is not disputed that there are only two matters which the Sessions Judge can revise; Under Section 436, Criminal P.C., he can direct further inquiry to be made into any complaint which has been dismissed Under Section 203 or Sub-section (3), Section 204, or into the case of any person accused of an offence who has been discharged. The first point urged for the petitioner is that there was no complaint before the Magistrate. With that contention I agree. There are only three ways in which a Magistrate can take cognizance of an offence and they are described in Section 190, Criminal P.C.; (a) upon receiving a complaint of facts which constitute such offence; (b) upon report in writing of such facts made by any police officer; and (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.

(3.) Admittedly neither (a) nor (c) applies in this case. Turning to (b), the words, "such facts" have to be read with Clause (a), that is, as being facts which constitute such offence." A police referred charge sheet, where, as in this case, it is reported that there has been no offence committed cannot possibly be called a report on facts which constitute such offence. The learned Sessions Judge has relied on three rulings in 2. Weir--one case reported in Mallappa Reddy V/s. Emperor [1904] 27 Mad. 127 and two in L.M. Soares, In re [1904] 2 Weir 246. It may be noted that none of these cases decided the matter in question. In the first case what was actually decided was that a Magistrate who agreed with the view of a complaint taken by the police officers that there was no sufficient ground for launching an investigation need not send for and examine the complainant before dismissing the complaint. That is still good law, if we use "complaint" as meaning complaint to the police. But the remark relied on and which finds a place in the heading is that a police report (apparently of this sort) would give jurisdiction to a Magistrate to enter upon an inquiry. This decision however was under the Code of 1872. There is no definition there of "complaint" and the section which was being dealt with Section 141 ran: A Magistrate may entertain a complaint of an offence, whether preferred directly by the complaint, or on report of a police officer, and may issue process, in the manner hereinafter prescribed, to compel the appearance of persons accused of such offences.