Judgment

JAGANNADHA DAS, J. : This is an appeal by special leave. The appellant was a Police Jamadar working in the Local Investigation Branch, Mandvi, in the State of Kutch. The prosecution case against him is that he visited a place called Rampur within the Mandvi Taluka on the 16th April, 1950, and checked the passports of a number of persons who had gone to Africa and returned. It is alleged that in the course of the check which he carried out, he collected the passport of one Ananda Ratna of the village and demanded a sum of Rs. 800/- for its return which was accordingly paid on the 18th April, 1950, and that thereby he committed an offence of extortion under Section 384, I.P.C.

The prosecution against the appellant appears to have been the result of information filed by this very appellant on or about 18th April, 1950, at the police station Mandvi that he was robbed of a sum of Rs. 870/- by some of the inhabitants of the village Rampur and that in course of the robbery he was assaulted and received injuries. That information was registered as Cr. Case No. 51 of 1950 and P.W. 1, Sub-Inspector of Mandvi Police Station investigated the same. It is said that in the course of that investigation P.W. 1 came to know of the extortion committed by the appellant from the fact that some of the residents of Rampur on that very day produced before the police a sum of Rs. 840/- as having been taken back from the appellant when it was found that it had been collected from the other villagers by means of extortion.

The Sub-Inspector accordingly filed a complaint in the Court of the First Class Magistrate, Mandvi, against the appellant setting out these facts. Eight witnesses were examined to substantiate the prosecution case. The defence of the appellant was that the money was his own and that when he found, during his check, that a number of persons had false passports he took the statements from them and that they, in order to snatch away their statements, beat him and robbed him of his own money which was with him. In support of his case he has examined eight witnesses. All the three courts below have accepted the evidence for the prosecution and disbelieved the defence version. The appellant was accordingly convicted of an offence under Section 384, I.P.C. and sentenced to R.I. for 12 months and a fine of Rs. 100/-. This was confirmed by the Sessions Judge on appeal and upheld on revision by the Judicial Commissioner, Kutch.

2. Learned counsel in addition to making an attempt to canvass the facts found, raised certain legal arguments. So far as the findings of fact based on an appreciation of the evidence were concerned we could not allow him to reopen them in this appeal on special leave. The legal arguments are as follows : (1) The trial Magistrate had no power to take cognizance of the proceedings and the proceedings are, therefore, void. (2) The statements of the witnesses examined during the course of investigation were not furnished and hence the trial is illegal. (3) The facts proved do not make out that the money was paid under any fear of injury and therefore, the offence of extortion was not committed.

So far as the first point is concerned, the facts on which the contention is based are set out in the judgment of the Judicial Commissioner as follows :

"Mr. Kansara (the trial Magistrate) was appointed Magistrate, First Class, during the regime of the Kutch State. The law of Kutch State did not contain provision similar to the provision contained in Section 190, Clauses (a) and (b) of the Cr. P. C. (Act V of 1898). As the Magistrate First Class in Kutch State, Mr. Kansara used to take cognizance of offences. With the application of laws to the Merged State of Kutch, Cr. P. C. was applied and it appears that by a notification issued by the Chief Commissioner on 14-11-49, Taluka Magistrate were appointed Sub-Divisional Magistrate under Section 13 of the Code. Later on, Deputy Collectors with the powers of Sub-Divisional Magistrate