P L D 1958 Dacca 598 (PLP)

4. Upon these allegations, the complainant on 15‑4‑55 filed a petition of complaint (Exh. 1) in the Court of the Sub‑divisional Magistrate; Habiganj, who merely endorsed on the said petition "to O. C., Habiganj, for registering a case and investigation" and made it over to the complainant. The complainant on 3‑5‑55 produced this before the said police officer who started a case, investigated it and submitted a charge sheet against the petitioners only but the complainant filed a naraji petition and prayed for process being issued against 16 other accused persons also. . This was supported by the Circle Inspector also and hence the case was sent to the S. D. P. O. for further report and on the basis of the report of the S. D. P. O. all the accused persons named in the petition of complaint were summoned.

5. In this case, the defence of the accused persons was that the prosecution case was entirely false. According to the defence, some of the accused persons seized eight heads of cattle of the complainant, P. W. 1, damaging the boro paddy of one of the accused and, whilst they were taking the cattle so seized from the boro field along a road on the south‑east corner of the tank of the said P. W. 1, the matter and his relations demanded the release of the said cattle but as that was refused they assaulted the accused with lathis and in connection with that they had actually filed a cross‑case, being G. R. case No. 721 of 1955.

6. The case started on the basis of the allegations of the complainant and the cross‑case started by some of the accused were both tried one after the other and judgment was delivered by the Magistrate in both the cases on the same day. The cross‑case ended in acquittal and the accused in the other case were convicted as aforesaid. At the trial, both sides adduced oral evidence. The prosecution examined some 14 witnesses whilst the defence examined some 4 witnesses. Both tile Courts below fully considered the oral evidence adduced in the case and came to the conclusion that the defence case could not be accepted but that the prosecution evidence proved the prosecution case beyond reasonable doubt. Various grounds both of law and fact were urged before the Court of Appeal below and the Court of Appeal below taking into consideration certain contradictions brought out in the evidence gave the benefit of doubt to the other 16 accused persons but held that the conviction of the petitioners before us was proper.

7. Mr. Nurul Amin appearing in support of this Rule has urged various grounds before us which appear also to have been taken in the Court of Appeal below. His first ground is that in the present case since the Sub‑divisional Magistrate acted illegally in not taking cognizance of the petition of complaint filed before him and immediately examining the complainant on c oath, before sending it to the police for investigating, the entire subsequent proceedings have thereby been rendered invalid. His contention appears to be that although the word "may" has been used in subsection (1) of section 190 of the Code of Criminal Procedure, it really in the context means, "must" and that in any of the circumstances enumerated under the said subsection the Magistrate must take cognizance of the case and immediately he takes cognizance of the case the provisions of section 200 become attracted and he is then bound at once to examine the complainant on oath. Since he did not do that in the present case but merely sent the petition of complaint to the police for registering a case, he failed to' assume jurisdiction or to take cognizance of the case and, therefore, on the basis of such a petition of complaint, of which no cognizance was taken, 'no proceeding could have been started:' According to him, the provisions of section 156, subsection (3), were not at all attracted in such a case. It is only after he had taken cognizance that he could have sent it to the police for such enquiry.

8. In support of this contention, he has relied on two decisions of Sen, J., in the cases of A. C. Samaddar and another v. Suresh Chandra Jana and others (53 C W N 270) and Yakub Sheik and others v. The King (51 Cr. L J 1290). In both these cases, Sen J., took the view that upon a complaint being filed before a Magistrate, the Magistrate is bound to take cognizance of the offence disclosed by the complaint and that the word "may" which appears in subsection (1) of section 190, Cr. P. C., does not give the Magistrate any option in the matter. It merely empowers the Magistrate to take cognizance of an offence in the circumstances mentioned in the sub‑clauses set out thereunder. Further that the failure to do so is not a mere irregularity but an illegality which is not curable under section 537 of the Code of Criminal Procedure.

9. In taking this view, however, His Lordship did not consider an earlier Division Bench decision of the same High Court in the case of Dr. Robiul Hossain Molla v. K. K. Rain and others (82 Cal. L J 222), and since then also the view taken by Sen. J., has not been followed by the Calcutta High Court. In the case of Pulin Behari Ghose v. The King (82 Cal. L J 222), Harris, C. J., and Das, J., after an exhaustive review of the earlier decisions of the said Court as also of some other High Courts observed as follows:‑ "In our judgment when a complaint is filed before a Magistrate he should either take cognizance of it under section 200 and proceed under Chapter XVI or send the com plaint to the officer in charge of the police station directing him to treat it as the First Information Report undo? section 154 and to proceed under Chapter XIV." This conclusion of their Lordships clearly indicates that they did not understand the word "may" in subsection (1) of section 190 of the Criminal Procedure Code to mean "must", for, then the possibility of sending the complainant to the police‑station with a direction for treating it as a First informa tion Report under section 154 could not arise. Similarly in the case of Superintendent arid Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (52 Cr. L J 806), another V Division Bench of the Calcutta High Court consisting of Das Gupta and Lahiri, JJ., disagreed with Sen, J., and followed the view expressed by Harris. C. J., and Das, J., in the case above referred to Das Gupta, J., who delivered the judgment in this case, however, observed as follows "I have for myself no hesitation in feeling that there is nothing which would justify our referring the matter to the Full Bench. As I read S. 190, Criminal P. C., and the subse quent sections, it seems to me to be clear that a Magistrate is not bound to take cognizance of an offence, merely because a petition of complaint is filed before him . . . What is "taking cognizance" has not been defined in the Criminal Pro cedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate had taken cognizance of any offence under section 190 (1) (a), Criminal P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding under section 200, and thereafter sending it for enquiry and report under S.

202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections and this Chapter, but for taking action of some other kind e.g. ordering investigation under S. 156 (3), or issuing a search‑warrant for the purpose of investi gation, he cannot be said to have taken cognizance of the offence."

10. This view of Das Gupta, J., appears to have found favour also with the Supreme Court of India in the case of R. R. Chari v. The State of Uttar Pradesh (52 Cr. L J 775). In the latter case their Lordships of the Supreme Court of India expressly noticed the above‑mentioned decision of Das Gupta and Lahiri. JJ., and held, after quoting with approval the passage just quoted above, that that was, in their opinion, the correct approach to the question.

11. A Full Bench decision of the Patna High Court in the case of Bharat Kishore Lal Singh Deo v. Judhistir Modak (30 Cr. L J 1056) has also taken the same view. There too it was held that a Magistrate before whom a complaint is made is not bound to take cognizance invariably on that complaint. He may proceed upon any other source of information permitted by section 190 of the Criminal Procedure Code and sections 200 & 202 which imposed upon the Magistrate the duty of examining the com plainant on oath are only applicable where the Magistrate proposes to take proceedings upon the information supplied by the complainant. Omission to examine the complainant on oath is not in any event an illegality but a mere irregularity which will not vitiate the trial unless substantial prejudice has been caused. We are in respectful agreement with these weighty', observations and find ourselves unable to approve of the view taken by Sen, J. We, therefore, hold that there is no substance in this contention of the learned Advocate appearing on behalf of the petitioners.

12. The learned Advocate next contended that, at, any rate, so far as one of the petitioners before us, namely, Modarisulla is, concerned, there has been some apparent confusion, for his conviction appears to have been based on no evidence at all. We have been taken through the evidence of the prosecution witnesses and it appears from that evidence that each of the prosecution witnesses described the particular acts of assault committed by each one of the accused. None of them however named this particular petitioner as having taken any part in the assaults. The person named by them is one Motasir who has been acquitted by the lower appellate Court. It appears to us that the Court below got confused between these two names, Modaris and Motasir, for, having regard to the principle upon which the lower Appellate Court has proceeded, namely, that those persons, in respect of whom it is doubtful as to whether they took any part in the assaults on the complainant's party, should be given the benefit of doubt, we feel that the benefit of doubt should have gone to this Modarisulla and not to accused Motasir. However, since there is no appeal against the acquittal of the accused Motasir, we cannot go into that question but we must give the benefit of that doubt to this petitioner Modarisulla, for, the evidence does not disclose that lie took any part at all in the assault. ;

13. The learned Advocate then sought to urge that in the present case there were sufficient materials on the record to hold that whatever the accused did they did under grave and sudden provocation and, therefore, the provisions of section 334 of the Penal Code were at least attracted and the punishment of three months imposed on the four petitioners before us in respect of the offence under section. 324, P. P. C., was not legal. This argument was sought to be supported by a state ment in the petition of complaint, Exh. 1, that the incident took place as a revenge for the complainant abusing the accused persons on the day of occurrence. It appears, however, that in his deposition in the Court, this complainant, namely, P. W. 1, stated that this abuse took place on Tuesday evening, that is the evening before the morning on which the occurrence itself took place, namely, the morning of Wednesday. The complainant, P. W. 1, was not in his cross‑examination con fronted with this particular portion of his statement to the, First Information Report. This statement, therefore, cannot now, in our opinion, be utilised for the purpose of con tradicting that witness. Nor can we utilise that statement in the First Information Report as substantive evidence. There is, therefore, no basis for this argument that there was any grave or sudden provocation. Even assuming that the abuse hurled upon the accused persons were likely to provoke one to retaliate but since that was done on the previous evening ii cannot be said that the provocation continued even till the next morning to justify the assault on the prosecution witnesses.

14. It was lastly urged that the Courts below had not con sidered the cases of the individual accused. This point was also taken in the Court of Appeal below. The Court of Appeal below has, when dealing with the charge under section 324, set out from the evidence of P. Ws. 1 to 9 the names of the accused named by each of these witnesses as having assaulted them. We have also perused the evidence. It appears that each one of these witnesses named a particular accused as having committed a particular act of assault on him. In the circumstances, therefore, the omission to again marshal the evidence separately against each of the accused persons is not such a serious omission, for, the evidence is clear and not of any complicated nature. We do not think, that there is any substance in this contention either.

15. These are all the points that have been urged before us and since we have not accepted any of them except that regarding Modarisulla, the convictions of all the accused persons except Modarisulla have been rightly maintained by the lower Appellate Court. The Rule is, therefore, made absolute only in respect of the petitioner Modarisulla. He will be given the benefit of doubt and acquitted of the charge under section 147, P. P. C., and he will now be discharged from his bail bond.

16. It is also urged that the Courts below have made an improper discrimination in the case of Somed Ali by imposing an enhanced sentence upon him in respect of the charge under section 324 of the Pakistan Penal Code. It seems to us that the 'trial Court took the view that he was the prime mover in this case and, therefore, he deserved a higher punishment, but from the evidence it does not appear that he took any more active part in these assaults than the other accused persons. The lower Appellate Court of course has not applied its mind to this aspect of the question. We feel that in these circumstances the higher sentence has been unfair on this account. So, his sentence is also modified from one year to three months on the charge under section 324 of the Pakistan Penal Code. With this modification, the Rule is discharged in respect of all the petitioners other than Modarisulla. The petitioners other than Modarisulla will now surrender to their bail bonds and serve out the remainder of their respective sentences. MURSHED, J.‑I agree. A. B. Order accordingly.