JUDGMENT
Birendra Prasad Sinha, J.
1. The petitioners have prayed for quashing the entire proceeding of complaint case No. 590 CA of 1969, pending in the Court of Shri S.J. Hussain, Judicial Magistrate, 1st Class, Purnea. Petitioner No. 1 is a Sub-Inspector of Police and at the time of the occurrence he was posted at Amour Police station in the district of Purnea. Petitioner No. 2 is a constable and petitioner No. 3 is a chowkidar.
2. On 12-9-69, opposite party Shanti Lal Sah filed a petition of complaint in the Court of the Sub-divisional Officer, Sadar, Purnea, against the petitioners and one daffadar Jainuddin, making, inter alia, the following allegations. It was alleged that petitioner No. 1 Kunj Behari Singh was the Sub-Inspector of Police at Amour Police-station petitioner No. 2 Dwarika Rai was posted as a constable at the said police-station and petitioner No. 3 was the Chowkidar of the complainant’s village. The complainant’s father had a kirana shop in his village Bagdaha, within the jurisdiction of Amour police-station. On 7-9-69, petitioner No. 2 Dwarika Rai along with petitioner No. 3 and daffadar Jainuddin came to the shop of the complainant’s father and told the complainant that the Sub-Inspector of Police (Petitioner No. 1) had asked them to bring the complainant under arrest to the police-station as he was wanted in a dacoity case. The complainant pleaded his innocence and wanted to see if there was any warrant of arrest or any written order for his arrest. He was told that there was a verbal order from petitioner No. 1 to arrest him and to bring him at the police-station. The complainant was illegally arrested and was taken to the police-station. He was kept under a Peepal tree where petitioner No. 1 came at about 7 P.M. The father of the complainant and some other witnesses had also reached the police-station by that time. When petitioner No. 1 arrived he told the complainant’s father that the complainant was involved in some dacoity cases. After some time petitioner No. 1 is alleged to have told the complainant’s father that if he wanted his son’s release, he should pay him a sum of Rs. 2000/-This surprised the complainant’s father who requested petitioner No. 1 to release the complainant as he was innocent. Petitioner No. 1 thereafter agreed to release the complainant if he was paid a sum of Rs. 1200/-. The complainant’s father had to agree to this illegal demand and paid a sum of Rs. 200/- to petitioner No. 1 and promised to give the balance amount of Rs. 1000/- by 10-9-69. The complainant was then allowed to return to his house. On 9-9-69, the complainant along with some others came to Purnea to ascertain as to whether he was actually an accused in any dacoity case. There they learnt that the complainant was not involved in any case. On 10-9-69, the complainant’s father went to the police-station to request petitioner No. 1 for some more time and to make further enquiry within that period. Petitioner No. 1 is said to have told him that as his son had gone to Purnea he would now not take the money from him and asked him to surrender the complainant in Court. On 11-9-69, the complainant’s father made further enquiries and learnt that the complainant was not wanted in any case. Thus, a complaint was filed against the petitioners for putting them on trial under Sections 342, 349 and 16.1 of the Indian Penal Code and under Section 5(1)(d) of the Prevention of Corruption Act, 1947. The complainant was examined on solemn affirmation on the same date and the case was sent for enquiry to Shri B.B. Sahay, Magistrate, 1st Class, Purnea,
3. It may be relevant to state here about the treatment this complaint received at the hands of the Executive Magistrate, Shri B.B. Sahay did not submit any report until 7-10-69 when he was transferred and the enquiry was entrusted to Shri S.P. Sinha, Magistrate, 1st Class. He also did not submit any report until 24-5-71. On 24-5-71,the order sheet mentions that the complainant filed a petition that Shri R.R. Prasad, Magistrate had returned to enquiry as he had been transferred and the enquiry should be entrusted to some other Magistrate. From the order sheet it is not clear as to when Shri S.P. Sinha, to whom the enquiry had been entrusted on 7-10-69, had returned the file and when the same had been entrusted to Shri R.R. Prasad. Be that as it may, the enquiry was entrusted to another Magistrate on 25-5-71. Shri Amar Singh, who also did not submit any report and was transferred. The matter now came to Shri J, Murmu, Magistrate, 1st Class, and received the same treatment when, on 18-2-74, the complainant filed a petition to call for the enquiry from the courts of Shri J. Murmu and summon the accused persons. The records were called for and were received by the learned Sub-divisional Officer on 18-3-74, but without any report. It was at this stage that the new Code of Criminal Procedure, 1973, came into force on the 1st of April, 1974, and the file of the case was received in the Court of the Chief Judicial Magistrate, Purnea, on the 29th July, 1974. Thus, it will be seen that from September, 1969 until March, 1974 this case was made a shuttle-cock between one Executive Magistrate and another who, for reasons best known to them, refused to hold an enquiry against a police officer.
4. However, on 12-10-74, the Chief Judicial Magistrate withdrew the enquiry from Shri S. Murmu and entrusted it to Shri J.L. Choudhary, Judicial Magistrate. Shri Choudhary submitted his report which was received by the Chief Judicial Magistrate on 17-3-75. Shri Choudhary found that the Sub-Inspector (Petitioner No. 1) had committed extortion. He also found that a prima facie case was made out against the accused persons under Sections 161 and 388 of the Indian Penal Code. On 9-3-76, a petition was filed by the complainant that cognizance should be taken only under Section 388 of the Indian Penal Code and as the case was not made out under Section 161 of the Indian Penal Code, the same should be dropped. Ultimately, on 11-9-76, the learned Chief Judicial Magistrate took cognizance under Sections 342 and 347 of the Indian Penal Code, and after, issuing summons, transferred the case to Shri S.J. Hussain, Judicial Magistrate, 1st Class, for trial.
5. Shri Shilesh Chandra Misra raised a number of points in support of the petition. He submitted that the alleged offence having been committed on 7-6-69 its cognizance on 11 -9-76 is barred under Section 468 of the Code of Criminal Procedure, 1973. According to him, as the maximum sentence provided under Section 347 of the Indian Penal Code is three years, cognizance for the said offence cannot be taken after the expiry of three years in terms of Section 468(2)(c) of the Code of Criminal Procedure, 1973. In support of his contention, learned Counsel placed reliance on a decision of this Court in Vasudeo Agrawal v. The State of Bihar (1977) Bihar Bar Council Journal 330. He further submitted that a complaint is not saved by the provisions of Sub-section (2) of Section 484 of the new Code of Criminal Procedure, 1973, and was not a pending matter. The provisions of the new Code will apply to such a complaint and it has to be disposed of in accordance with the new Code. In this connection, he relied upon a Bench decision of this Court in Mahanth Harihar Das v. The State 1975 Bihar Bar Council Journal 364. On the other hand, Shri Biresh Chakravarty appearing on behalf of the opposite party contended that the complainant was examined on solemn affirmation on 12-9-69 by the Sub-divisional Officer and, therefore, the cognizance will be deemed to have been taken on
that date itself. He relied upon a decision of the Supreme Court in Jamuna Singh v. Bhadai Shah , wherein it was held that when on a petition of complaint being filed before a Magistrate he applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. On 12-9-69, when the petition of complaint was filed, the complainant was examined on solemn affirmation and the learned sub-divisional Officer proceeded under Chapter XVI of the Code, postponed the issue of process and directed an enquiry to be made by a Magistrate subordinate to him under Section 202 of the Code. Thus, it will be seen that the cognizance of the offence was taken on 12-9-69 itself.
6. There is also another aspect of the matter. In the case of Vasudeo Agrawal (supra) it was held that cognizance of an offence cannot be taken after the period of limitation prescribed under Section 468 of the new Code. The maximum punishment prescribed under Section 342 of the Indian Penal Code is one year or fine which may extend to one thousand rupees, or both. Offence under Section 347 of the Indian Penal Code is punishable with imprisonment of either description the term of which may extend to three years and shall also be liable to fine. Section 468 of the new Code reads as under:
468. Bar to taking cognizance after lapse of the period of limitation-(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only ;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year ;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
The word “offence” denotes a thing made punishable by the Indian Penal Code. According to Section 53, punishments to which offenders are liable under the Code are death, imprisonment for life ; imprisonment which is of two descriptions rigorous and simple, forfeiture of property and fine. Section 63 provides that where no sum of expressed to which a fine may extent, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. According to Section 64 of the Code, in every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine. only, in which the offender is sentenced to a fine, the Court may direct that, in default of the payment of fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced. Section 65 limits the term for which the offender may be imprisoned in default of payment of fine to one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine. As has been stated earlier, Section 347 of the Indian Penal Code is punishable with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. This means that Section 347 is punishable both with imprisonment and fine. As such, any sentence of imprisonment that may be awarded in default of the payment of fine imposed under Section 347 of the Code, in excess of the substantive sentence, shall be in excess of any other imprisonment. The maximum period for which the offender may be imprisoned in default of fine, may, therefore, be nine months, i.e. one-fourth of the period fixed under Section 347. Section 468 of the Code of Criminal Procedure, 1973, has not taken into consideration this aspect of the matter. The limitation under Sub-section (2)(c) of it has been prescribed only for the offence which is punishable with imprisonment for a term exceeding one year but not exceeding three years. This cannot be said to apply to any offence which is punishable with an imprisonment for a period of three years and also fine, in default whereof the offender is liable to imprisonment. In my opinion, therefore, Section 468(2)(c) of the Code of Criminal Procedure, 1973, does not apply to cases where a punishment of imprisonment and fine both have been prescribed.
7. Shri Misra then submitted that after the coming into force of the new Code of Criminal Procedure (1973 Code). It was this Code and not the old Code that applied to a complaint case. As such, the enquiry could not be entrusted to a Judicial Magistrate on 12-10-74 in terms of Section 202 of the new Code. To find support to his contention, he has relied upon a decision of this Court in Umakant Dubey v. Bhunam Bhuiyan 1975 Bihar Bar Council Journal 388 wherein it was held that any Judicial Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance may enquire into the case himself or direct an investigation to be made by a police officer or by any other person, but he cannot get it enquired into by any other Magistrate without passing an order under Section 192 of the new Code. In the case of Umakant Dubey (supra) the petition of complaint had been filed on the 29th of April, 1974, i.e. after the coming into force of the new Code. In the first instance, the complaint was sent for investigation by the police but later on the Judicial Magistrate directed an enquiry to be held by Shri R. Chand, Judicial Magistrate, 1st Class. In the instant case, an enquiry had been directed to be made by a Magistrate of the first class on 12-9-69. itself under the old Code. For some reason or other, no report could be submitted by the Magistrate, although it changed hands several times, until the new Code came into existence. The position, therefore, is that the enquiry under Section 202 of the old Code of Criminal Procedure must be deemed to be pending on the date the new Code came into force. According to Section 484, if immediately before the date on which the new Code came into force there was any appeal, application, trial, enquiry or investigation pending, then such appeal, application, trial, enquiry or investigation has to be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the old Code as if the new Code had not come into force. In my opinion, therefore, the enquiry in the instant case ordered under the old Code had to be continued under the old Code and there was nothing wrong in entrusting the same to a Judicial Magistrate on 12-1C-74. The decision in the case of Umakant Dubey (supra) has no application to the facts and circumstances of this case. The contention of learned Counsel in this respect has, therefore, got to be overruled.
8. Shri Misra further submitted that the report was submitted to take cognizance under Sections 161 and 388 of the Indian Penal Code. The complaint also disclosed an offence under Section 161 of the Code for which sanction was necessary. But the court while taking cognizance dropped Section 161 of the Code and took cognizance under Sections 342 and 347. According to Shri Misra the cognizance is barred under Section 6 of the Prevention of Corruption Act, He did not plead bar of Section 197 of the Code of Criminal Procedure. His submission is that if the complaint makes out a case under Section 161 of the Indian Penal Code, sanction is necessary. In this connection, he relied upon a decision of the Supreme Court in Dr. S. Dutt v. State of U.P. and two decisions of this court in K.P. Sinha v. Aftabuddin 1955 Bihar Law Journal Reports 183 and Chandra Kishore Jha v. State of Bihar 1975 Criminal Law Journal 1939. In the case of K.P Sinha (supra) it was held that where the offence disclosed in the com7laint is in truth and substance an offence under Section 161 of the Indian Penal Code or Section 5(1)(d) of the Act II of 1947, which requires sanction under Section 6 of Act II of 1947, and it might also come under Section 384 of the Indian Penal Code which did not require any such sanction, the law relating to sanction cannot be evaded by proceeding against the accused for an offence not requiring sanction. Section 161 provides for punishment to public servants taking gratification other than legal remuneration in respect of an official act, in discharge of his official functions. Section 384 provides for punishment for extortion. The offences under these two sections are akin. The offences under Section 161 are not similar in nature to the offences under Sections 342 and 347 under which cognizance has been taken in the present case. In the case of Chandra Khhore Jha (supra), it was held that when during the pendency of a proceeding for assessment of compensation under the Bihar Land Reforms Act, the accused, a clerk of the office of the D.C.L.R., submitted false and collusive reports and made interpolations in collectible demands and altered Taxi number for facilitating false payment to land owners, he was liable under Sections 193 and 209 of the Indian Penal Code and the provisions of Section 195(1)(b) of the Code of Criminal Procedure was attracted for prosecution of the accused for those offences. It was further held that when the offences alleged to have been committed in the same transaction were so intermingled that it was impossible to separate the trial in respect of offences which do not attract Section 195(1)(b), it was not open to the court to proceed with the trial by dropping the charges for offences attracting Section 195. In the present case the position is not the same. Offences under Section 161 and those under Sections 342 and 347 are not so intermingled and, therefore, there does not seem to be any difficulty in dropping Section 161 of the Code and proceeding with Sections 342 and 347. In the case of Dr. Dutt (supra), the facts of the case were as follows : Dr. S. Dutt had been examined as an expert at the sessions trial. His evidence was not accepted by the Sessions Judge. The prosecution applied under Section 195 of the Code of Criminal Procedure for prosecution of Dr. Dutt under Section 193 of the Indian Penal Code on the allegation that he had committed forgery of certain diploma produced in court during the course of his evidence. The application was rejected. A case was lodged with the police and a charge sheet under Sections 465/471 of the Indian Penal Code was framed against Dr. Dutt. At the trial, an objection was taken by Dr. Dutt that he could not be prosecuted as the alleged facts disclosed an offence under Section 193 and a complaint in the
writing of the court was required under Section 195 of the Code of Criminal Procedure before cognizance could be taken. It was also contended that Sections 465 and 471 did not apply to the alleged facts and the prosecution was attempting or evade the provisions of Section 195. His contention was rejected by the trial court which held that there was no bar to the trial under Section 465 or 471 of the Indian Penal Code. The Supreme Court ultimately found that the action of Dr. Dutt was covered by Sections 192 and 196 of the Indian Penal Code which would have required a complaint in writing of the Sessions Judge before cognizance could be taken. Id paragraph 16 of the judgment, to which my attention was drawn, it was held that if the offence was under Section 196 of the Indian Penal Code, a complaint in writing by the court concerned was required. It was further held that before a complaint is made, the court has to consider whether it is expedient in the interest of justice to order a prosecution. In the lesser offence no such complaint by the court is necessary and it is obvious that the lesser offence was chosen to bypass the Sessions Judge who had earlier decided that Dr. Dutt should not be prosecuted for perjury. Such a device was not to be commenced. In the opinion of the Supreme Court, the offence in the case of Dr. Dutt did not fall under Section 465 or Section 471 of the Indian Penal Code and the prosecution launched against him could not be allowed to go on. In the present case, we have to see whether on the allegations made in the complaint the petitioners could be charged under Section 161 of the Indian Penal Code. The complainant was brought to the police-station on the plea that he was wanted in some case of dacoity. In fact no case was pending against him at that time. It cannot, therefore, be said that the petitioners were in any way acting in the discharge of their official duty. If a public servant accepts or obtains or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification other than his legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, he shall be liable to punishment under Section 161 of the Indian Penal Code. There is nothing in the present case to show that the petitioners had taken the complainant to the police-station in the exercise of their official functions. Their action cannot be said to be concerned with any official act. I am of the view that the complaint does not disclose any offence under Section 161 of the Code of Criminal Procedure. It is, therefore, that Shri Misra did not plead bar of Section 195 of the Code of Criminal Procedure and submitted that Section 6 of the Prevention of Corruption Act applied in this case. In Section 6 of the Prevention of Corruption Act, the word “in discharge of duties as public servant” is not mentioned, only the word “public servant” is mentioned. But again, Section 6 of the Prevention of Corruption Act will operate as a bar only when it is found that the allegations in the complaint make out a case under Section 161 of the Indian Penal Code. If the allegations do not make out a case under Section 161 of the Code, the provisions of Section 6 of the Prevention of Corruption Act will have no application. That being the position, I hold that the learned Chief Judicial Magistrate was not wrong in taking cognizance under Sections 342 and 347 of the Indian Penal Code and dropping it under Section 161 of the Code.
9. In the result, this application fails and is dismissed.
10. While parting with the judgment, I would like to observe that the trial of this case has been sufficiently delayed, may be, as it appears, on account of the Executive Magistrate not willing to prove against a police officer. But that as it may, the Chief Judicial Magistrate should now try to expedite the trial.
