Md. Sharfuddin alias Shamsuddin v. State of Bihar — 1974 DIGILAW 8 (PAT)

Narain, J. For violation of an order under section 144 of the Code of Criminal Procedure dated the 12th of June, 1969, passed by Shri S.N. Sahai, Sub-divisional Magistrate, Sadar, Patna a complaint was filed on the 23rd of January, 1970 by Shri A. Kumar acting as Sub-divisional Magistrate, Sadar, Patna before the Sub-divisional Magistrate, Sadar, Patna against the petitioner. Cognizance was taken by Shri S.N. Sahai, the Sub-divisional Magistrate on the 29th of January, 1970 and he transferred the case to the file of a Judicial Magistrate for disposal. By the present application the petitioner seeks to get the order of taking cognizance quashed. 2. It has been submitted by the learned counsel for the petitioner that cognizance taken is erroneous in law in view of the provisions of section 195 (1)(a) of the Code of Criminal Procedure. It says inter alia that no court shall take cognizance of any offence punishable under section 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. In the present case, disobedience was of the order of Shri S.N. Sahai the Sub-divisional Magistrate and as such he was the public servant concerned and the complaint under section 195 (1) (a) should have been made by him. In the circumstance cognizance taken on the complaint made by any other public servant, although action on the relevant date a as a Sub-divisional Magistrate, cannot be deemed, in the eyes of law, to be a valid complaint. This view of mine is supported by a decision of the Calcutta High Court in Bachuram Kar and other Vs. The State A.I.R. 1951 Cal. 102, Sheodhari Paswan and others Vs. State 1964 B.L.J.R. 506 and Mahendra Prasad Singh and others Vs. State of Bihar1970 Cr.L.J. 484. 3. There is another reason also why the cognizance taken cannot be allowed to stand and it is because of the provisions of section 556 of the Code of Criminal Procedure. The State A.I.R. 1951 Cal. 102, Sheodhari Paswan and others Vs. State 1964 B.L.J.R. 506 and Mahendra Prasad Singh and others Vs. State of Bihar1970 Cr.L.J. 484. 3. There is another reason also why the cognizance taken cannot be allowed to stand and it is because of the provisions of section 556 of the Code of Criminal Procedure. Section 556 lays down that : "No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court try or commit for trial any case to or in which he is a party, or personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself." It would be noticed that the complaint was made for the violation of the order of Shri S.N. Sahai, Sub-divisional Magistrate and cognizance was also taken by him. The opening words of section 556 are that "no Magistrate shall try". The point for consideration is whether the word "try' includes taking of cognizance or not. I find there has been a discordant note in this regard by Carnduff, J. of the Calcutta High Court in Lakhi Narain Ghose Vs. Emperor I.L.R. 37 Cal. 221 Dealing with section 556 he observed as follows : "These provisions follow the salutary rule that a Judge shall not he a Judge in what may be called his own cause; but they draw the line, advisedly as I imagine, at trial or commitment, and do not go the length of impeding mere cognizance of crime. Nor would it, in the circumstances of this country, be advisable to go so far....." With great respect to the learned Judge it is difficult for me to subscribe to this view Section 556 is based on the general principle of law enunciated by the maxim nemo debet esse judex in propria causo (no man can be a Judge in his own cause). It is one of the two rules of natural justice well recognised by the English common law and is also known as the "rule against bias". In this connection, it would be relevant to recall the words of Mahmood, J. in the Full Bench case of Queen-Empress Vs. Pohpi and other: which is to the following effect: "It rests upon a thing higher than' the technicalities of law. In this connection, it would be relevant to recall the words of Mahmood, J. in the Full Bench case of Queen-Empress Vs. Pohpi and other: which is to the following effect: "It rests upon a thing higher than' the technicalities of law. It rests upon the philosophy that says that human beings are after all human beings; and, with all honour due to the honesty and integrity of judges, they are not to hear cases in which they are themselves concerned." 4, Keeping this salutary principle of caution in mind it is to be seen whether taking cognizance of a case is to be differentiated from the trial of a case, I do not think so. In R.R. Chari Vs. The State of Uttar Pradesh AIR 1951 SC 207 their Lordships of the Supreme Court have said that: "Before it can be said that any Magistrate has taken cognizance of any offence under section 190 (i) (a) Cr. P. C. he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap., proceeding under section 200 and thereafter sending it for inquiry and report under Section 202". "5. Thus before cognizance is taken, the Magistrate applies his mind whether he should set the criminal law in motion in a particular way or not. Taking cognizance of a case is manifestly not so innocuous a step as to be brushed aside and to be kept outside the purview of the aforesaid maxim of English, common law. When cognizance is taken of a case the criminal law is set in motion; The person complained against bas either to face the inquiry under section 202 or if processes have been issued against him, he is brought as an accused before a court of law. I do not think a proceeding which results in either bringing a man as an accused before a court of law and or which requires a Magistrate to exercise his mind whether to proceed in a particular way or not, should be allowed to be beyond the purview of the provisions of section 556 of the Code of Criminal Procedure. The term trial has not been defined in the present Code of Criminal Procedure. The term trial has not been defined in the present Code of Criminal Procedure. But as observed by the Supreme Court in State of Bihar Vs. Ram Naresh Pandey AIR 1967 SC 389 the words "tried" and "trial" are . "Words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provisions under consideration." I have already dealt with the scheme and purpose of provisions of section 556 and for this reason also I think that section 556 of the Code of Criminal Procedure contemplates the case of taking cognizance also. 6. For the above reasons I am of the view that taking cognizance in this case is also hit by the provisions of section 556 of the Code. In the circumstance the" order dated the 29th of January, 1970 taking cognizance is quashed and the application is allowed. Application allowed.