P L D 1960 Dacca 631 (PLP)

Since both these complaints related to the same incident, the Magistrate, in respect of the previous complaint of Tamju Meah, purported to pass another order on this the 15th of February 1958, to the following effect :‑.‑

"The order of 12‑2‑58, asking Mr. M. Haque to hold the investigation was not possibly correct from the departmental point of view. Request the S. P. to hold the investigation himself or get the case investigated by a responsible officer and take necessary action after registering a case." Upon the basis of this order, the Superintendent of police of Chittagong in both these cases ordered that the O. C. Patiya Police Station should register the case and the Sub‑Inspector A. Sattar should investigate the same under the supervision of C. I. B. and report (presumably to him). On the same day the O. C. Patiya on receipt of this order of the Superintendent of Police started cases Nos. 13 and 14 of the 15th of February 1958, under sections 148, 302, 326 and 324 etc. Thereafter on the 14th of February 1959, a date presumably fixed for the hearing of the case it appears that the accused persons under detention as under‑trial prisoners were produced from Hajat whilst those who were on bail attended the Court but some were absent on petition. On this day, however, the defence filed a petition before the learned Magistrate taking the objection that the proceedings before him were void ab initio, as the order of the Magistrate directing the Superintendent of Police to investigate after registering a case was illegal, since, such investigation after registration of a case by the police could only take place under Chapter XIV of the Code of Criminal Procedure and subsection (3) of section 156 of the said Code prior to the taking of cognizance by the Magistrate and not after the taking of cognizance. In so far as in the present cases the Magistrate concerned had, already examined the complainant under section 200 of the Code of Criminal Procedure he had taken cognizance and thereafter he could only direct an enquiry or investigation under section 202 of Chapter XVI of the Code. In this event the police could only report to the Court and process, if any, had to be issued by the Court and the police had no power to detain any person even though the offences were of a cognizable nature. The learned Magistrate on the 16th of February 1959, rejected the said con tention and directed the issue of warrants of arrest against the accused persons who were absent. The other accused were directed to be as before and another date was fixed for the bearing of the case. Against this order, the petitioner moved the learned Sessions Judge of Chittagong on the 19th of February 1959, but the learned Additional Sessions Judge, who ultimately heard the said matter on the 9th of May 1959, rejected the application relying on a decision of the Lahore High Court in the case of Rashid Ahmed and another v. The Crown (I L R 14 Lah. 194). It is against this that the petitioners have now come up in revision to this Court and the learned Advocate appearing on their behalf has again urged the same point, namely, that the Magis trate acted illegally in referring a matter to the police for investiga tion under section 156, subsection (3) of Chapter XIV of the Code of Criminal Procedure after having himself taken cognizance thereof under section 200 of the said Code. In support of this contention reliance has been mainly placed on the following decisions in the cases of Emperor v. Haji Nur Mohamed Haft Rafe Mohamed and Sidubhai Ibrahim (I L R 53 Bom. 339), Emperor v. Bikha Mod (A I R 1938 Sind 113 (FB)) and Shahdad Gadai v. Emperor (42 Cr. L J 162). In each of these cases it has been held that where a Magistrate has referred a complaint for investigation under section 202 of the Code of Criminal Procedure it is not competent to the police to send up the accused for trial on a charge sheet after investigation and in such cases the only action that the police can take, is to make a report to the Magistrate, for section 156 (3) of the Code of Criminal Procedure has no application to such a case. The Sind Judicial Commissioner's Court in the case of Shahdad Gadai v. Emperor went even further and held that a Magistrate on receipt of a complaint is bound to examine the complainant under section 200 and proceed in accordance with the sections following that and in such cases he cannot refuse to take cognizance of the complaint and send it to the police for enquiry under section 156 (3) of the Code of Criminal Procedure and then dispose of it by executive orders. As against these decisions, the learned Advocate appearing on behalf of the complainant opposite‑party has contended that no illegality has been committed and this Court should not interfere. In support of his contentions he has, of course, relied upon the decision referred to by the learned Additional Sessions Judge, namely, in the case of Rashid Ahmad and another v. The Crown as also on the decisions in the cases of King‑Emperor v. Bhola Bhagat and others (A I R 1923 Pat. 547) and Gopal Naick and six others v. Alagirisami Naick (I L R 54 Mad. 598). In all these cases the view seems to have been taken that the police may even on receipt of a complaint forwarded for enquiry under section 202 of the Code of Criminal Procedure investigate under section 156 of the said Code. It may be stated at the outset that the extreme view that has been taken in the case 42 Cr. L J 162, cannot now be accepted, for so far as India is concerned, the view that the Magistrate is not bound to take cognizance of every complaint that is filed before him but may even without taking cognizance sent it to the police for investigation under section 156 (3) of the Code of Criminal Procedure, has met with the approval of the Supreme Court of India in the case of R. R. Chari v. The State of Uttar Pradesh (AIR 1951 SC207). In this decision the view expressed by Das Gupta, J. of the Calcutta High Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar (A I R 1950 Cal. 437) was accepted by the Supreme Court of India as the correct view. In this Court also a similar view has been taken in the case of Badsha Mia and others v. The State (P L D 1958 Dacca 598). All the previous decisions of the Indian High Courts, were exhaustively reviewed by Das, J. of the Calcutta High Court in the case of Pulin Behari Ghose v. The King (53 C W N 453) and it was pointed out that " it is desirable that Magistrate taking cognizance of offence of complaint should keep in mind the difference between an order under section 202 and one under section 156 (3) and take one of the two courses indicated in the last mentioned decision and not make a composite order which only results in creating confusion. 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 under section 154 and to proceed under Chapter XIV. He should not make a hybrid composite order such as has been done in this case" and further that "the police Magistrate having proceeded under Chapter XVI had no jurisdiction to direct the police to investigate under Chapter XIV and the trial Magistrate acted wholly without jurisdiction in proceeding on the Charge sheet" submitted there after and that such action rendered the whole proceeding illegal from beginning to end. In the case before me it will also be evident from the orders that I have quoted earlier that the Magis trate did make such hybrid composite orders after having clearly and indubitably taken cognizance of the case and even examined the complaint under section 200 of the, Code of Criminal Procedure. An attempt was made, however, by the learned advocate appearing for the complainant opposite‑party to show that if, as held in the cases reported in A I R 1951 S C (Ind.) 207 and P L D 1958 Dacca 598 ; a Magistrate can without taking cognizance send petition of complaint for investigation by the police under section 156 (3), then it would be illogical to restrict him from doing so merely by reason of the fact that he has examined the complainant. It is contended that the mere examination of the complainant does not amount to taking cognizance, for according to these decisions, the taking of cognizance is a state of mind of the Magistrate and only occurs when he has applied the mind of his to the facts and circumstances placed before him for the pur poses of initiation of proceedings. Where the issue of processes is postponed it cannot be said that the Magistrate has so applied his mind for the purpose of initiation of any proceeding. This argument however, cannot be accepted, for a reference to the wording of section 200 of the Code of Criminal Procedure will make it clear that the examination of the complainant can only succeed and not precede the taking of the cognizance, for, it is an act to be done after the taking of cognizance, whatever might be the meaning of the word cognizance or whatever might amount,, to taking cognizance. It is, to my mind, abundantly clear that the examination of the complainant on oath is to be done after the taking of cognizance that is to, say, after the Magistrate con cerned has applied his mind to the facts and circumstances of the case with a view to the initiation of the proceeding. This view appears also to b supported by the reasoning of Das, J. in the case 53 C W N 653, for there he has distinguished the case of Bhola Bhagat, Gopal Naick and Rashid Ahmad on the grounds that in the case of Bhola Bhagat there ware two separate proceedings one in which there was a complaint and another in which there was no complaint but several persons including those persons against whom there was a complaint, had been sent up for trial on a charge sheet for quite different offences. In the case of Gopal Naick of course, this fact was not noticed, but nevertheless, the decision in the Patna case was followed. In the case of Rashid Ahmad, it appears that on receipt of the complaint the police treated it as a first information report under section 154 and entered it in the Register kept under that section. It thus appears that when a. Magistrate receives a complaint and takes cognisance thereof under section 190 (a) of the Code of Criminal Procedure and then examines the complainant under section 200 then the only enquiry or investigation that he can order is one under section 202 and not under section 156 (3) of the Code. He may, if he wishes to direct the investigation under section 156 (3) not take cognizance but send the complaint direct to the police for police investigation; but where he has examined the complainant and taken, cognizance, the investigation can only be under section 202 and in those circumstances the submission of a charge sheet is without jurisdiction for there must then be a report to that Magistrate who must himself dispose of the complaint either under sections 203 or 204 of the Code of Criminal Procedure. I respectfully agree with the view expressed by Das, J. in the last mentioned case and I myself am of the opinion that in the present case the Magistrate concerned wholly misconceived the scope of his powers after he had examined the complaint on solemn affirmation which could only be done under section 200 of the Code of Criminal Procedure. His hybrid order, therefore, of the 15th of February 1958, ordering an investigation, presumably, under section 202 and again directing the Superintendent of Police to investigate after registering a case, is an order which cannot be supported by any provision of the Code of Criminal Procedure. Indeed, I do not think that the Magistrate has any competence at all to direct the police to register a case. The furthest that the decisions relied upon by the learned Advocate appearing for the complainant go to show is that the Magistrate can treat the com plaint under section 202 of the Code of Criminal Procedure as a first information report and start a case on the basis thereof or that the powers of the police to investigate under section 156 (1) are independent of and not controlled by the provisions of section 202 of the said Code. Thus inspite of an order under section 202 for investigation, the police may yet investigate under section 156 (1) of the said Code. The order in the present case is, indeed, in more than one sense a hybrid order which has really led to this confusion and, in these circumstances, it is clear that this rule must be made absolute and the orders and proceedings before the Magistrate from and after 15‑2‑58 must be held to be illegal and void and must be set aside. Since the proceedings have not yet been completed and the case is still pending, I propose to amend the order passed by the learned Magistrate on the 12th of February 1958, in G. R. Case No. 145 of 1958, and the 15th of February 1958, in G. R. Case No. 149 of 1958, to run as follows :‑ "Examined the complainant on solemn affirmation, to O. C. Patiya P. S. for enquiry and report." The O. C. will there after submit a report and the Magistrate will then proceed in accordance with law and dispose of the complaints before him either under section 203 or 204 of the Code of Criminal Procedure. This rule is accordingly made absolute. It now only remains to notice one other matter which has been referred to this Court by the Magistrate concerned. It appears that when this rule was issued a stay of further proceedings was also directed. The proceedings were not, however, stayed immediately but the matter was referred to the local Public Prosecutor who rightly pointed out that if the warrant of arrest has not been executed till the receipt of this Court's order they should be recalled in view of the stay order, for, the execution thereof after the receipt of the stay order may be interpreted as the taking of further proceedings. This opinion does not appear to have satisfied the Magistrate who called upon the learned Public Prosecutor to cite rulings in support of the said opinion and it was only on the 28th of May 1959, after an old ruling of the Calcutta High Court had been cited by the learned Public Prosecutor that he condescended to himself order the stay of the execution of the warrants of arrest. It is surprising that neither the learned Public Prosecutor nor the Magistrate were aware of the decision of a Division Bench of this Court in the case of Rani Harshamukhi Sinha v. Maharaja Sashi Kanta Acharjee Choudhury and others (7DLR473), where the question has been dealt with in extenso for the guidance of the Subordinate Courts. Although this is a decision in a civil matter the principles therein laid down govern also criminal proceedings. If the Magistrate concerned in the present case is in any doubt, he should refer to the above decision. R. B. A. Rule made absolute.