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1975 DIGILAW 25 (CAL)

State v. Sudhangshu Ghatak

1975-01-24

AMAL KRISHNA DE

body1975
JUDGMENT This is a Reference made by the Session Judge, Murshidabad under section 438 of the old Code of Criminal Procedure, 1898. Sri B.B. Chatterji, Judicial Magistrate, First Class, Jangipur has convicted Sri G. Ghatak, officer-in-charge of Shamserganj Police Station under section 29 of the Police Act, 1861 and has Sentenced him to pay a fine of Rs. 50/-. He pas not imposed any sentence of imprisonment, in default of payment of fine. He has made this order on 4.4.73. The State through its Public Prosecutor of the district of Murshidabad moved the Session Judge on 29.10.73 for making a reference to this Court recommending that the said order of the learned Magistrate convicting and sentencing the officer-in-charge should be set aside as illegally made. The learned Session Judge in his Reference has stated that the order of the learned Magistrate has been illegal firstly because the learned Magistrate has not followed the procedure laid down in Chapter XX of the old Code of Criminal Procedure 1898 in the trial of the case and secondly because, no complaint in the case was filed before him with the sanction of the District Magistrate or the Superintendent of Police as enjoined by Regulation 434 of the Police Regulations, Bengal, Vol. I. 3. Section 29 of the Police Act 1861 is that every police officer shall be liable, on conviction before a Magistrate to a penalty not exceeding three months' pay or imprisonment with or without hard labour for a period not exceeding three months or to both if he is found guilty of any violation of a lawful order made by the complaining authority. That is a summons case as defined in clauses (v) and (w) of section 4 of the old Code of Criminal Procedure, 1898. The Police Act of 1861 has not prescribed any special procedure for trial of an offence under section 29 of the Act. Under section 5.(2) of the old Code of Criminal Procedure, 1898 the procedure for trial of a summons case has therefore to be adopted for trial of an offence under section 29 of the Police Act. Chapter 20 of the Code prescribe the procedure for trial of summons case by a Magistrate. A trial commences following the procedure laid down in section 242. Chapter 20 of the Code prescribe the procedure for trial of summons case by a Magistrate. A trial commences following the procedure laid down in section 242. When an accused in a summons case appears or is brought before a Magistrate, the Magistrate has to state the particulars of the offence of which he is accused to him and is required to take his plea. If the accused pleads guilty he may convict him on that plea. If he does not so plead the learned Magistrate has to adopt the procedure laid down in section 244 by taking evidence. In the instant case the learned Magistrate asked the officer-in-charge, Sri Ghatak to show cause why he should not be punished under section 29 of the Police Act. The said officer on receipt of such notice submitted a written show-cause. The learned Magistrate on perusal of the said show-cause in the absence of the accused has made the following order on 4.4.73 : "Seen show-cause by O/C Shamserganj Police Station. The show-cause itself shows that there was wilful neglect on the part of the O/C Shamserganj P.S. in complying with a lawful order. I hold him guilty of wilful neglect and convict him to pay a fine of Rs. 50j- under section 29 of the Police Act. Issue Distress Warrant for realisation of the fined amount". It is thus clear that the learned Magistrate has not followed the procedure laid down in Chapter XX- of the Code of Criminal Procedure 1898. That has vitiated the entire proceeding conducted disregard of those provisions. His order of conviction is therefore, liable to be set aside as recommended by the learned Session Judge. 4. Police Regulations Bengal, have been made in exercise of the powers conferred on the State Government under section 46 (2) of the Police Act 1861. These Regulations have therefore, the force of law. Regulation 434 of the Police Regulations Bengal, Vol. I is that no prosecution against a police officer under section 29 of the Police Act shall be instituted except with the authority of the Superintendent of Police or the District Magistrate. In the instant case the prosecution, if it is assumed that the prosecution was either instituted or started, Commenced without the authority of the Superintendent of Police or the District Magistrate. In the instant case the prosecution, if it is assumed that the prosecution was either instituted or started, Commenced without the authority of the Superintendent of Police or the District Magistrate. The proceeding in which the order for conviction and sentence has been passed, has therefore been vitiated by this illegality. In fact the Officer-incharge, Shamserganj P.S. was neither summoned nor appeared before the Magistrate for trial of the case. A conviction without the accused appearing before the Magistrate is certainly bad in law. 5. Regulation 434 provides that a complaint against a police officer shall be handed over by the Magistrate's Bench Clerk, to the Court officer who shall return it after reporting the matter to the Superintendent of Police. The Superintendent of Police on perusal of the papers or the District Magistrate on a report made to him, has to be satisfied and to authorise the prosecution of the police officer. This procedure does not appear to have been followed in this case. That has vitiated the proceeding also. 6. A Magistrate takes cognizance of an offence under section 190 of the old Code of Criminal Procedure 1898. He takes cognizance of the offence either on a complaint or on a police report or on information received from a person other than a police officer or upon his own knowledge that such an offence has been committed. In the instant case there was no complaint or police report. In the third case where the Magistrate takes cognizance on his own knowledge, he is obliged under section 191 of the Code to inform the accused, before taking any evidence in the case that the accused is entitled to have the case tried by another court. No Magistrate taking cognizance of an offence upon his own information can proceed with the trial without following the procedure laid down in section 191, of the Cr. P.C. 1898. In the instant case the learned Magistrate, if it is said that he took cognizance under section 190 (1) (c) of the Code, has not followed the procedure laid down in section 191. That has thus vitiated the proceeding and his final order of conviction and sentence. 7. P.C. 1898. In the instant case the learned Magistrate, if it is said that he took cognizance under section 190 (1) (c) of the Code, has not followed the procedure laid down in section 191. That has thus vitiated the proceeding and his final order of conviction and sentence. 7. A Magistrate cannot take cognizance of an offence under section 29 of the Police Act, 1861 except on ~ complaint filed with the authority of District Magistrate or the Superintendent of Police of the district and cannot dispose of a proceeding, if so started under sec. 29, without issuing Process under sec.204 of Cr.P-code or voluntary appointment and accepted of luia as accused in the case and adopting procedure of trial laid down in chap. 20 of the Cr. P Code. For all these reasons the order of the learned Magistrate dated 4-4-73 is illegal and will be set aside. 8. In the result, I accept the Reference, set aside the order of the learned Magistrate dated 4-4-73 in his P.E.B.G.R. case No. 22/72 convicting Sri Ghatak, the officer-in-charge, Shamserganj police station under section 29 of the Police Act 1861 and sentencing him to pay a fine of Rs. 50/-. I further direct that the fine, if any paid by or realised from him be refunded to him. I also quash the said proceeding which was initiated by the learned Magistrate issuing a show-cause notice on the said officer-in-charge under section 29 of the Police Act, 1861.