AJAIB SINGH versus JOGINDER SINGH

AJAIB SINGH

JOGINDER SINGH

April 30, 1968

[S. M. S!KRI AND V. RAMASWAMI, JJ.J

Code of Criminal Procedure (5 of 1898) ss. 195 (l)(b) 479 A(6) and 559-Complainr under ss. 193, 195, 211 a11d 1208 !PC-Filed by successor-i11-office of Magistrate-Validity-s. 559, scope of.

India11 Pe11al Code (45 of 1860) ss. 193, 195, 211 and 1208--Com-p/aint-Filed by successor-in-office of Magistrate-Validity.

Police Act (5 of 1861) s. 42-Applicahility.

magistrate acquitted Bhagwant Rai of the charge under ss. 325/34 I.P.C. and observed that he had been falsely implicaited. The magistrate's successor-in--0ffice the respondent filed complaint under ss. 193, 195, 211 and 120B J.P.C., against the appellants. The appellants con-tendc.d that (i) prosecution for offences under ss. 193 and 195 I.P.C., was barred under s. 479A(6) Cr. P.C.; (ii) according to s. 195(1)(b) Cr. P.C., only the Magistrate before whom <he original proceedings were taken could file the complaint in respect of ss. 193, 195 and 211 IPC; (iii) s. 42 of the Police Act barred the prosecution as it was commenced after the period prescribed; and (iv) the complaint only disclosed two offences under ss. 193 and 195 l.P.C. and no D•ther.

HELD : The appeal must be dismissed.

(i) In view of the ruling of this ·Court jn Shabir Husain Bholu v. State of Maha1·qshrra and Bahan Sin~h v. Jagdish Singh, the prosecution for offences under"· 19'3 and 195 TPC was barred under s. 479A(6) Cr. P.C. [148 Bl

(ii) The complaint was properlv filed bv the succcss·vr-in-office of the Magistrate. Section 559 Cr. P.C. en.ables successor-in-0ffice of \ Iagistrate 1to file complaint. This section applies to all l\1agistrates, and there is no reason to limit it to 1\.iagistrates whose courts are penna-nent. Sub-s. (2) has not the effect of limiting s. 559(1). Section 559(2) applies when there is doubt as to who the successor is, and that doubt can be resolved in thC n1anner laid down in sub-s.(2). The suh~ section does not 1ne'an that unti! successor is determined un.der sub-s. (2) there is no successor for the purpose of sub-s. (1). [148 F-H: 149 Al

Behram v. Emperor, 37 Cr. L.J. 776--Lah. 108; Bara Bapen Manild v. Gopi Manjhi, A.LR. 1927 Pat. 327. (Tn re: Subran1a11ian Chettiar. A.LR. 1957 Mad. 442. followed. (iii) Section 42 of the police Act does not apply to prosecutions under the Indian Penal Code or other Acts. [l 49 CJ Mulad Ahmad v. Sta,te of UP., [1963] Supp. 2 S.C.R. 38. 44-45 followed. (iv) As the con1plaint on the face of it mentioned ss. 193, 195, 211 and 120B. so there was no force, in the contention that rtbe complaint onlv disclosed t\VO offences under ss. 193 and 195 I.P.C. and no other f149 F]

1969] I S.C.R.

Sl.'PRnlE COl'RT REPORTS

CRIML:<AL APPELLATE J1.'R1s1>1c:r10:-1 : Criminal Appeal !\'o. 157ofl965.

. Appeal by special leave from the judgment and order dated l'_cbruary I, 1965 o.f the Punjab High Court in Criminal Misc. :\o. 8 of 1964 in Cr. Revision N0. 1375 of 1963.

Nishat Singh Grewal, R11vi11dra Ilana and O. P. Rana, for the .appellants.

R. N. Sachthn" for the respondent No. 2.

The J ud~mcnt of the Court was delivered by

Sikri, .I. This appeal by special ka\c i, directed "gainst the judgment ol the High Court of Punjab dismissing Criminal Mis-cellaneous Petition :'>lo. 8 of 1964. This petition arose out of the following facts, Bhagwant Rai and Chhota Ram were tried under s. 325, J.P.C., read with s. 34, l.P.C., in the Court of Shri Harish Chander Gaur, Magistrate !st Class, J>auala. Ajaib Singh, Sub Inspector, one of the appellants before us, had investi-gated the case. The \lagistrate, by his order dated April 5. l 957, acquitted both the accused and, inter alia, observed that llhagwant Rai had been falsely implica:cd in the case as he '"" not even present on the day of the occurrence at Patiala. On the application of Bhagwant Rai, Shri Joginder Singh 'Karam-garhia', Magistrate !st Cla'5, Patiala, who succeeded Shri Harish Chander Gaur, filed complaint under ss. 193, 195, 211 and 1208, l.P.C., on Octoher 31. 1958, against six persons including the appellants, Ajaib Singh and Malkiat Singh. Shri 0. P. Gaur. Magistrate First Class, by his order dated June l, 1959, dis-charged the accused, holding that the complaint was not compe-tent as it was barred by sub-s. (6) of s. 479A, Cr. P.C., because the complaint had not been filed by or directed to he tiled by Shri Harish Chander Gaur, who had disposed of the case endinp in the acquittal of Bhagwant Rai. In the revision filed against this order the Additional Sessions Judge upheld this view. The High Court (Capoor, J.), on revision, found it unnecessary to -consider the scope of s. 479A, Cr. P.C., vis-a-vis s. 476, Cr. P.C., because two of the offences mentioned in the complaint, namely. s. 211 and s. 120B. l.P.C., did not fall within the purview of s. 479A. Capoor, J., further held that~'· 42 of the Police Act. I 861, had no application to case in which complaint was made by the Court under s. 476, Cr. P.C. Capoor. J .. also held that as the order of Shri Joginder Singh, Magistrate, directing the making of the complaint against the respondents was not appealed from and had become final. the competency of the Court to make the complaint under s. 211. l.P.C .. against Jaswant Singh. one of the accused. could not be con;idcred at that stage. The High

Court accordingly set aside the order of the learned Additional Sessions Judge and directed that the respondents be proceeded against according to law.

On the case going back fresh objections were filed before the Magistrate trying the case but these were overruled. Revision was filed before the Additional Sessions Judge who accepted the prayer of Kirpal Singh and recommended to the High Court that the criminal proceedings pending against him in the Court Qf Magistrate First Class, Patiala, might be quashed. He, however, declined to interfere with the proceedings pending against the appellants mainly on the ground that the objections now taken by them before the Trial Magistrate had been heard and finally disposed of by Capoor, J., in his order dated April 4, 1.961.In the meantime, the appellants put in Criminal Miscel::ane-ous Petition No. 8 of 1964, in criminal revision, in the High Court, praying that along with the recommendation made by the learned Additional Sessions Judge, Patiala, for quashing the criminal proceedings against Kirpal Singh, the grounds urged by them might also be taken into consideration. Capoor, J., accepted the recommendation made by the learned Additional Sessions Judge, Patiala, and quashed the criminal proceedings against Kirpal Singli. He, however, directed that Criminal Miscellaneous Peti-tion No. 8 of 1964 should be placed before another Bench for disposal. The matter was then placed before Sharma, J., who held that all the points urged in Criminal Miscellaneous Petition had been taken into consideration and repelled by Capoor, J., in his order dated April 4, 1961. Shanna, J., observed :

·"The learned counsel, however, omitted to take note of the fact that the revision petition finally was accepted in the terms, 'As the order under revision is not legally sustainable, it must be set aside and the respondents must be proceeded with according to law.' Therefore, what the order (said) was that the criminal case as whole was to proceed against all the respon-dents and so the petitioners could not be heard now to say that the case was remanded to the trial court for trial of the respondents for offences punishable under sections 211 and 120-B of the Indian Penal Code. In the circumstances, the trial Court cannot be said to have misconstrued the order of Capoor, J., The other grounds urged by them in the Criminal Miscellaneous as already pointed out by me were taken into considera-tion by Capoor, J., and findings given against the petitioners and that being so, these cannot be agitated ·. again at this stage.''

He accordingly dismissed the Criminal Miscellaneous Petition. The appellants having obtained special leave, the appeal is no11· before us.

Petition.

111e learned counsel for the appellants contends that on the

facts prosecution for offences under ss. 193 and 195, l.P.C., was barred under s. 479A(6), Cr. P.C. In our opinion, this con-tention must be accepted in view of the rulinc of this Court in ~habir Hus.min B/10/u v. State of Maharashtra(1) and Baban Singh v. Jagdish Singh(').

The learned counsel next contends that the complaint could only .be filed by the Magistrate before whom the original proceed-ings were taken. He says that according to s. 195(1 )(b), Cr. P.C., complaint in respect of ss. 193, 195 and 211 I.P.C., can only be made by the Court in "hich the proceedings out of which the offences arose took place. We sec no force in this conten-tion. Section 559 enables successor-in-office of Magistrate to file complaint. The relevant portion of s. 559 reads as follows :

"559. ( 1) Subject to the other provisions of this Code, the powers and duties of Judge or Magistrate may be exercised or perfom1ed by his successor in office.

(2) When there is any doubt as to who is the suc-cessor in office of any Magistrate, the Chief Presidency Magistra t.: in Presidency town, and the District Magistrate outside such towns, shall detcm1ine by order in writing the Magistrate who shall, for the purposes of this Code or of any proceedings or order thereunder, be deemed to be the successor in office of ~uch Magis-trate."

This section was substituted for the original s. 559 by the Code of Criminal Procedure (Amendment) Act (XVlll of 1923). Since the amendment it has been held, and we think rightly, that successor in ollicc of Magistrate can tile complaint under s. 476, Cr. P.C .. in respect of an offence under s. 195, I.P.C .. committed b~forc his predecessor. (See Be/mun v. Emperor(') Bara !Japen Ma11jhi v. ·Go pi Manjhi(') and In rr : Subramaniam Chettiar('). This section applies to all Magistrates and there is no reason whv the plain terms of the section should be cut down to limit ii. as suggested by the learned counsel for the appellant, to l\fagistratcs whose courts are permanent. It. s~c.1m to us further clear that sub-s. (2) has not the effect of hm1tmg s. 559(1 ). Section 559(2) applies when there is doubt as ---· --·--·-- ----(!) (196iJ Supp. 1 S.C.R. SOI. (2) A.I. R JQ67 S.C. 68. (JI "27 Cr. I.. J. -:07(..f...;1h. 108. (4) A. I. R. 1927 P:tt 1:!7. (5) A. 1. H. 1 q_.:;7 Mad . .J~2

to who the successor is, and that doubt can be resolved in the manner laid down in sub-s. (2). The sub-section does not mean, as contended by the learned counsel, that until successor is determined under sub-s. (2) there is no successor for the pur-poses of sub-s. ( 1). If there is no doubt about who the successor is, then that person can exercise the powers under sub-s. ( 1). We accordingly hold that the complaint was properly filed by Shri Joginder Singh 'Karamgarhia', Magistrate.

There is equally no force in the third point raised by the learned counsel that s. 42, Police Act, creates bar and the prose-cution is time-barred under this section. This Conrt held in Mulud Ahmed v. State of U.P.([1]) thats. 42, Police Act, does not apply to prosecutions under the Indian Penal Code or other Acts. Subba Rao, J., as he then was, observed :

"The period of three months prescribed for com-mencing prosecution under this section is only with respect to prosecution of person for something done or intended to be done by him under the provisions of the Police Act or under general Police powers given by the Act. Section 42 does not apply to prosecution against a'ny person for anything done under the provi-sions of any other Act. ... combined reading of these provisions leads to the conclusion that s. 42 only applies to prosecution against person for an offence com-E mitted under the Police Act. ... but the prosecution in the present case was for an offence under s. 212 of the Indian Penal Code which is an offence under different act and for which much higher punishment is pres-cribed. By reason of s. 36 of the Police Act, section 42 thereof cannot apply to such prosecution."

The fourth point which the learned counsel urges is that the complaint only discloses two offences under s. 193 and s. 195, I.P.C., and no other, and it was an abuse of the process of the Court. There is no force in this contention as the complaint on its face mentions ss. 193, 195, 211 and 120B.

The learned counsel finally urges that the complaint had been filed because of private feud and it is not in the interest of justice that the complainant should be allowed to proceed with the complaint. This point was not taken in the High Court at any stage and we do not allow it to be raised at this stage.

In the result the appeal fails and is dismissed.

Appeal dismissed.