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Allahabad High Court · body

1962 DIGILAW 328 (ALL)

Ali Ullah v. State

1962-12-06

S.N.KATJU

body1962
ORDER :- This is a reference made by the 1st Temporary Civil and Sessions Judge, Bahraich, recommending that the order of the Magistrate for adopting the procedure under Section 207-A of the Code of Criminal Procedure, be quashed and the case should be sent back for being proceeded, with in accordance with the other sections of Chapter 18 of the Code of Criminal Procedure. 2. A dacoity was committed on the night between 7th and 8th of March, 1960 at village Tappasipah at the house of one Ram Lal. Next morning Ram Lal lodged a report in the police station saying that there were 13 or 14 dacoits and that one of the dacoits had been apprehended who had given his name as Chinau. It was further alleged in the report that among the dacoits, one Atiullah alias Tulli had been identified but the other dacoits were not known. The police sent up a charge sheet under Section 190 (1) (b) of the Code of Criminal Procedure against the aforesaid two persons. The Magistrate took cognizance of the offence and conducted the inquiry. During the inquiry two prosecution witnesses, other than Ram Lal, were examined and they stated to have identified Atiullah alias Tulli among the dacoits. The Magistrate, thereupon, summoned Tulli. The question arose whether the procedure to be followed against Tulli should be according to Section 207-A or according to Section 208 of the Code of Criminal Procedure. The Magistrate expressed the view that the Court had taken cognizance of the offence under section 190 (1) (b) and not under clause (c) and the procedure to be adopted in the inquiry proceedings had to be according to the procedure laid down in Section 207-A of the Code of Criminal Procedure. 3. The applicant Atiullah preferred a revision against the aforesaid order of the Magistrate. The Court below was of the view that the only police, report before the Magistrate was the one under Section 173 of the Code of Criminal Procedure and action on that report could only be taken against the person mentioned in the report and it could not be taken against any other person. It, therefore, held that the proceedings against the applicant should not be under Section 207-A of the Code of Criminal Procedure. It, therefore, held that the proceedings against the applicant should not be under Section 207-A of the Code of Criminal Procedure. The Court below was of the view that the proceedings should be in accordance with the other sections of Chapter 18 of the Code of Criminal Procedure. The Court below, therefore, made a reference recommending that the aforesaid order of the Magistrate should be quashed and the procedure as laid down by Section 207-A of the Code of Criminal Procedure should not be followed in the proceedings before the Magistrate. Learned counsel for the applicant has strenuously contended that the view expressed by the Court below is the correct view and that since the applicant had not been mentioned in the report made by the Police before the Magistrate, the procedure to be followed should be the procedure as laid down in Section 208 of the Code of Criminal Procedure. Learned counsel contended that the Magistrate had taken cognizance of the offence under Section 190 (1) (c) upon the information which he had received from the aforesaid two witnesses in the case and it could not be said that he had taken cognizance of the offence on any report made by the police. The contention is that the determining factor is the report against the person made by the police and not the proceedings pending before the Court. He has, therefore, contended that the view expressed by the Court below is correct and, therefore, the reference should be accepted. 4. Learned counsel for the State as also the learned counsel for the complainant contended that the cognizance of the offence had been taken by the Magistrate under section 190 (1) (b) upon the report with regard to the offence made by the police and it was immaterial that proceedings against the applicant were started at a subsequent stage. It was urged that it cannot be said that the Magistrate had taken cognizance of the offence upon any information of his own or from any person other than a police officer. The proceedings had been started on the report made by the police. It was, therefore, urged that the procedure to be followed in the case was the procedure laid down by Section 207-A of the Code of Criminal Procedure. 5. The proceedings had been started on the report made by the police. It was, therefore, urged that the procedure to be followed in the case was the procedure laid down by Section 207-A of the Code of Criminal Procedure. 5. Learned counsel for the State and the complainant referred to Nek Ram v. Emperor, AIR 1931 All 273, Mehrab v. The Crown, AIR 1924 Sind 71 (FB), Kachu Gogoi v. The State, AIR 1951 Assam 151, Premdas v. Lalloo Ram, AIR 1961 Madh Pra 143 and Saifar v. State of West Bengal, 1962 (1) Cri L J 283 : ( AIR 1962 Cal 133 ). In AIR 1931 All 273 (supra), the Magistrate examined the police diary and expressed the view that the police had not properly investigated the case and that a certain person should have been prosecuted but he did not pass any order under Section 190 (1) (c) of the Code of Criminal Procedure, but merely sent the papers back to the police without making any order that the person should be prosecuted, it was held that there was sufficient reason for transferring the case from his file to another Magistrate. It would thus appear that the question which arises in the case before me, did not arise in the case of AIR 1931 All 273 (supra). Similarly the cases reported in AIR 1951 Assam 151 (supra) and AIR 1961 Madh Pra 143 (supra) do not touch the precise question in controversy in the case before me. The two cases which are directly on the point are the cases reported in AIR 1924 Sind 71 (FB) (supra) and 1962 (1) Cri L J 283 : ( AIR 1962 Cal 133 ) (supra). 6. The two cases which are directly on the point are the cases reported in AIR 1924 Sind 71 (FB) (supra) and 1962 (1) Cri L J 283 : ( AIR 1962 Cal 133 ) (supra). 6. In 1962 (1) Cri L J 283 : ( AIR 1962 Cal 133 ) (supra), it was held as follows : "When a Magistrate takes cognizance under Section 190 (1) (b) on a Police report, he takes cognizance of the offence and not merely of the particular persons named in the charge-sheet, and therefore the Magistrate is entitled to summon additional accused against whom he considers that there was good evidence, after perusal of the statements recorded by the police under Section 161 and the other documents referred to in Section 173 even without examination of witnesses in Court." The Division Bench of the Calcutta High Court in the aforesaid case followed the decision in a Full Bench case of the Sind High Court reported in 1962 (1) Cri L J 283 : ( AIR 1962 Cal 133 ) (supra). The facts of Saifar's case were as follows. The case was investigated by the police against three persons for theft. The police sent up their report describing only one of the aforesaid three persons as concerned in the theft and for the other two it was reported that the witnesses had spoken against them on account of enmity but if the Court thought there was evidence against them the Court may issue warrants. It was held that the report was a police report even as regards the other two persons. It was held that the report was a police report even as regards the other two persons. It was further held in that case that : "When a Magistrate takes cognizance of a complaint under Section 190, clause (b), and directs process to issue against other persons whose names transpired in the prosecution evidence during the trial, he is perfectly justified in doing so and he is deemed to have taken action against them under clause (a) and not under clause (c)." The opening words of Section 207-A (1) run thus : "When in any proceeding instituted on a police report, the Magistrate receives the report forwarded under Section 173, he shall, for the purpose of holding an inquiry under this section, fix a date......." The opening words of Section 208 (1) run thus : "In any proceeding instituted otherwise than on a police report, the Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), ........" It would thus appear that the provisions of Section 207-A of the Code of Criminal Procedure lay down the procedure where the proceedings are instituted on a police report and Section 208 of the Code provides for proceedings instituted otherwise than on a police report. The word 'proceeding' cannot be confined to such persons who may be referred in the report made by the police. The 'proceeding' referred to in Section 207-A is with respect to the offence about which the report is made. It may be that some persons are not mentioned initially in the report but may be found to be implicated in the offence with regard to which the proceeding had been instituted and it may be necessary to proceed against such person or persons. It cannot be said that inclusion of such a person or persons was not under a proceeding instituted on a police report. The proceeding is with respect to an offence and not with respect to any particular offender. 7. In the case before me, the name of the applicant had been mentioned in the first information report but it may be that the police did not find corroboration of the presence of the accused in the dacoity; therefore, they did not include his name in the report made to the Magistrate. 7. In the case before me, the name of the applicant had been mentioned in the first information report but it may be that the police did not find corroboration of the presence of the accused in the dacoity; therefore, they did not include his name in the report made to the Magistrate. The two witnesses who made statements before the Magistrate stated that the applicant was also one of the dacoits. In these circumstances, the Magistrate decided to summon the applicant before him. I agree with the Magistrate that the procedure to be adopted in the case, so far as the applicant is concerned, should be under Section 207-A of the Code of Criminal Procedure. 8. I, therefore, reject the reference made by the Court below and direct that the revision before the Court below should be decided in terms of the order passed by the Magistrate. The reference is accordingly rejected. Reference rejected.