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High Court Of Madhya Pradesh
S. B. Sen, J.
KANHAIYALAL DAULATRAMJI - Appellant
Versus
STATE OF M.P. - Respondents
Criminal Revn. 296 Of 1962
Decided On : 03/19/1963
Where the complainant made a report to the police and the police recommended to the Court that the case may be dropped, the Court cannot take cognizance of the case under clause (b) of section 190 (1), Cr. P. C., but it can take the cognizance of the case under clause (a) as the complaint of facts constituting the offence is before it. The complaint of facts need not come directly from the complainant. It is also not the law that once the police recommends cancellation, the Magistrate cannot start proceedings. [Paras 6, 7 & 9
(2) Criminal P.C. - S. 192 - Additional District Magistrate - can transfer cases to subordinate Magistrate.
Under section 10 (2), Cr. P. C., all the Additional District Magistrate have all the powers of a District Magistrate. Additional District Magistrate has, therefore, the power to transfer cases to a subordinate Magistrate under section 192. [Para 11
(3) Criminal P.C. - Ss. 192 & 200 - transfer of a case - can be made without examining the complainant if the complaint is in writing - the complaint may come through the police.
Under section 200, Cr. P.C., the Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any. But this is subject to the proviso that when the complaint is made in writing, the Magistrate may not examine the complainant before transferring the case under section 192. The complaint in writing might have come through the police and not made directly to the Magistrate. [Para 14
(4) Criminal P.C. - Ss. 173 & 252 - police recommending the dropping of the case - Magistrate taking cognizance of the case - accused is entitled to the copies.
After forwarding a report under section 173 it is incumbent on the police officer to give copies of documents on which the prosecution relies and other papers stated in that section. It is nowhere mentioned under section 173 that in case the police recommends that the case should not be proceeded with, they are not liable to give copies mentioned therein. [Para 19
Simply because no duty is cast upon a Magistrate under section 252 to satisfy himself that the documents referred to in section 173 are given to the accused, it does not mean that the accused is not entitled to the documents referred to under section 173 if he is otherwise entitled. [Para 20
(5) Criminal P.C. - S. 12 (2) - no notification limiting the area issued - the Magistrate has jurisdiction throughout the District.
Under sub-section (2) of section 12 it is clear that the Magistrate shall exercise jurisdiction throughout the District if there is no notification limiting the area. [Para 23
( 1 ) THIS is a peculiar case. One Nilkanth, a Dy. Collector was driving his car through market in Jhabua when a dog Was run over and killed. One Kanhyalal stopped his ear and made an attempt to pull him out and intimidated. A report of this was made to the Police on the same day.
( 2 ) AFTER investigation the police forwarded a report to the Addl. District Magistrate jhabua recommending that the case be dropped. Nilkanth was sent for by the addl. District Magistrate. He raised certain objections to the investigation by the police and submitted that the inquiry was not proper and a fresh inquiry should be made. The Addl. District Magistrate considered that further inquiry was necessary and transferred the case to the Magistrate Ist Class Thandla to inquire into the matter further.
( 3 ) THE case thereupon went on transfer along with the policy record to the magistrate First Class Thandla who made preliminary investigation under Section 202 Cri. Pro. Code and found that there was a prima facie case. He therefore registered offences under Sections 341 and 505 I. P. C. and summoned the accused. The proceedings thereupon went on in the usual course.
( 4 ) ON 28-8-62 the accused Kanhaiyalal made an application praying that the copies of all the police papers including the F. I. Report and all other documents on which the prosecution proposed to rely be supplied to him. The Magistrate dismissed, the application. The accused then went up in revision to the Addl. Sessions Judge, Jhabua who made a reference, to this Court for quashing ail the proceedings taken by the Magistrate on the ground that the procedure adopted by the Addl. District Magistrate was illegal.
( 5 ) ACCORDING to him, the Addl. District Magistrate either could have agreed with the police about the cancellation of the case or not. In the former case it would be open for Nilkanth to make a private complaint but in case he disagreed with the police recommandation he would be at liberty to take cognizance of the offence under Section 190 (b ). But in that case he has got to satisfy himself that all the documents referred to in Section 173 were furnished to the accused.
( 6 ) IT has not been disputed that the police, made a recommendation for cancellation of the case. But I do not agree that once the police recommends cancellation, the Magistrate or the Addl. District Magistrate cannot start proceedings.
( 7 ) UNDER Section 190 (1), a District Magistrate or a Sub-Divisional Magistrate may take cognizance of any offence under the following circumstances (a) upon receiving a complaint of facts which constitute such offence (b) upon a report in writing of such facts made by any police officer (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.
( 8 ) THE case did not come under (b) because it is clear that the police did not make any complaint in writing of facts. But I do not understand why the Addl. District magistrate could not take cognizance under (a ). It is pertinent to note that under clause (b) the report must be in writing. A complaint under Clause (a) need not be in writing. The words "in writing" do not appear in (a ). When Nilkanth was summoned before the Court by the Addl. District Magistrate he made a complaint about the offence and stated that the police did not investigate the case properly.
( 9 ) IN fact there was a writing which though made to the police, ultimately came to the Addl. District Magistrate. The words used in Section 190 (1) are "upon receiving a complaint of facts which constitute such offence. " The complaint of facts need not come directly from the complainant. The complainant handed over the facts to the police in writing. This writing was received by the Addl. District magistrate. The police did not want to proceed with the case. They should have asked the complainant to go to the Court if necessary. Instead the police itself
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