PETITIONER: AJAIB SINGH Vs. RESPONDENT: JOGINDER SINGH DATE OF JUDGMENT: 30/04/1968 BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. RAMASWAMI, V. CITATION: 1968 AIR 1422 1969 SCR (1) 145 CITATOR INFO : RF 1988 SC 805 (13) ACT: Code of Criminal Procedure (5 of 1898) ss. 195 (1)(b) 479 A(6) and 559-Complaint under ss. 193, 195, 211 and 120B IPC- Filed by successor-in-office of Magistrate-Validity-s. 559, scope of. Indian Penal Code (45 of 1860) ss. 193, 195, 211 and 120B complaint-Filed by successor-in-office of Magistrate- Validity. Police Act (5 of 1861) s. 42-Applicability. HEADNOTE: A magistrate acquitted Bhagwant Rai of the charge under ss. 325/34 I.P.C. and observed that he had been falsely implicated. The magistrate's successor-in-office the respondent filed a complaint under ss. 193, 195, 211 and 120B I.P.C., against the appellants. The appellants con- tended 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 the 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 I.P.C. and no other. HELD:The appeal must be dismissed. (i) In view of the ruling of this Court in Shabir Husain Bholu v. State of Maharashtra and Baban Singh v. Jagdish Singh, the prosecution for offences under ss. 1913 and 195 IPC was barred under s. 479A(6) Cr. P.C. [148 B] (ii) The complaint was properly filed by the successor-in- office of the Magistrate. Section 559 Cr. P.C. enables a successor-in-office of a Magistrate do file, a complaint. This section applies to all Magistrates. and there is no reason to limit it to Magistrates whose courts are perma- nent. Sub-s. (2) has not the effect of limiting s. 559(1). Section 559(2) applies when there is a doubt as to who the successor is, and that doubt can be resolved in the manner laid down in sub-s.(2). The subsection does not mean that until a successor is determined under sub-s.(2) there is no successor for the purpose of sub-s. (1). [148 F-H;149 A] Behram v.Emperor, 37 Cr. L.J. 776-Lah. 108; Bara Bapen Manihi v. Gopi Manjhi, A.I.R. 1927 Pat. 327. (In re: Subramanian Chettiar, A.I.R. 1957 Mad. 442, followed. (iii) Section 42 of the police Act does not apply to prosecutions under the Indian Penal Code or other Acts. [149 C] Mulad Ahmad v. State of U.P., [1963] Supp. 2 S.C.R. 38, 44- 45 followed. (iv) As the complaint on the face of it mentioned ss. 193, 195, 211 and 120B, so there was no force. in the contention that the complaint only disclosed two offences under ss. 193 and 195 I.P.C. and no other F149 F] 146 JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 157 of
1965.
Appeal by special leave from the judgment and order dated
February 1, 1965 of the Punjab High Court in Criminal Misc.
No. 8 of 1964 in Cr. Revision No. 1375 of 1963.
Nishat Singh Grewal, Ravindra Bana and O. P. Rana, for the
appellants.
R. N. Sachthey, for the respondent No. 2.
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against
the judgment of the High Court of Punjab dismissing Criminal
Miscellaneous Petition No. 8 of 1964. This petition arose
out of the following facts. Bhagwant Rai and Chhota Ram
were tried, under s. 325, I.P.C., read with s. 34, I.P.C.,
in the Court of Shri Harish Chander Gaur, Magistrate 1st
Class, Patiala. Ajaib Singh, Sub Inspector, one of the
appellants before us, had investigated the case. The
Magistrate, by his order dated April 5. 1957, acquitted both
the accused and, inter alia, observed that Bhagwant Rai had
been falsely implicated in the case as he was not even
present on the, day of the occurrence at Patiala. On the
application of Bhagwant Rai, Shri Joginder Singh ‘Karam-
garhia’, Magistrate 1st Class, Patiala, who succeeded Shri
Harish Chander Gaur, filed a complaint under ss. 193, 195,
211 and 120B, I.P.C., on October 31, 1958, against six
persons including the appellants, Ajaib Singh and Malkiat
Singh. Shri O. P. Gaur. Magistrate First Class, by his
order dated June 1, 1959, discharged the accused, holding
that the complaint was not competent 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 be filed by Shri Harish
Chander Gaur, who had disposed of the case ending 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,
I.P.C., did not fall within the purview of s.479A. Capoor,
J., further held that s. 42 of the Police Act.1861, had no
application to a case in which a 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, I.P.C., against
Jaswant Singh, one of the accused, could not be considered
at that stage. The High
147
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 of 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, 1961.
In the meantime, the appellants put in Criminal Miscellane-
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 Singh. He,
however, directed that Criminal Miscellaneous Petition 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. Sharma, 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 a whole was to
proceed against all the respondents 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 consideration by Capoor, J.,
and findings given against the petitioners and
that being so, these cannot be agitated again
at this stage.”
148
He accordingly dismissed the Criminal Miscellaneous
Petition. The appellants having obtained special leave, the
appeal is now before us.
The learned counsel for the appellants contends that on the
facts prosecution for offences under ss. 193 and 195,
I.P.C., was barred under s. 479A(6), Cr. P.C. In our
opinion, this contention must be accepted in view of the
ruling of this Court in Shabir Hussain Bholu v. State of
Maharashtra(1) and Baban Singh v.Jagdish Singh(2).
The learned counsel next contends that the complaint could
only be filed by the Magistrate before whom the original
proceedings were taken. He says that according to s. 195
(1) (b), Cr. P.C., a complaint in respect of ss. 193, 195
and 211 I.P.C., can only be made by the Court in which the
proceedings out of which the offences arose took place. We
see no force in this contention. Section 559 enables a
successor-in-office of a Magistrate to file a 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 a Judge or
Magistrate may be exercised or performed by
his successor in office.
(2) When there is any doubt as to who is the
successor in office of any Magistrate, the
Chief Presidency Magistrate in a Presidency
town, and the District Magistrate outside such
towns, shall determine 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 such Magistrate.”
This section was substituted for the original s. 559 by the
Code of Criminal Procedure (Amendment) Act (XVIII of 1923).
Since the amendment it has been held, and we think rightly,
that a successor in office of a Magistrate can file a
complaint under s. 476, Cr. P.C., in respect of an offence
under s. 195, I.P.C., committed before his predecessor. (See
Behram v. Emperor(3) Bara Bapen Manjhi v. Gopi Manjhi(4) and
In re: Subramaniam Chettiar(5). This section applies to all
Magistrates and there is no reason why the plain terms of
the section should be cut down to limit it, as suggested by
the learned counsel for the appellant, to Magistrates whose
courts are permanent. It seems to us further clear that
sub-s.(2) has not the effect of limiting s.559(1).Section
559(2) applies when there is a doubt as
(1) [1963] Supp. 1 S.C.R. 501.
(3) 27 Cr. L. J. 776-Lah. 108.
(2) A.I. R. 1967 S.C. 68.
(4) A. 1. R. 1927 Pat. 327.
(5) A. 1. R. 1957 Mad. 442.
149
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 a
successor is determined under sub-s. (2) there is no
successor for the purposes 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 -,,he
learned counsel that s. 42, Police Act, creates a bar and
the prosecution is time-barred under this section. This
Court held in Mulud Ahmed, v. State of U.P. (1) that s. 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
commencing a prosecution under this section is
only with respect to prosecution of a 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 any person for anything done under the
provisions of any other Act. . . . A combined
reading of these provisions leads to the
conclusion that s. 42 only applies to a
prosecution against a person for an offence
committed 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 a different act and
for which a much higher punishment is pres-
cribed. By reason of s. 36 of the Police Act,
section 42 thereof cannot apply to such a
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 a 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.
Y.P. Appeal dismissed.
(1) [1963] Supp. 2 S.C.R. 38, 44-45.
150