Nikka Ram Vs. State

Nikka Ram vs State

Type Court Judgment Court Punjab and Haryana Decided Jul 13, 1953

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Citation: sooperkanoon.com/610335
Court: Punjab and Haryana High Court
Judge: Soni, J.
Decided On: Jul 13, 1953
Case Number: Criminal Revision No. 107 of 1953
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) , Sections - 110, 112 and 114

Parties & Advocates

Appellant / Petitioner

Nikka Ram

Advocate A.R. Kapur and; V.K. Ranade, Advs.

Respondent

State

Advocate Har Parshad, Asst. Advocate-General

Legal References

Acts: Code of Criminal Procedure (CrPC) , Sections - 110, 112 and 114
Reported In: AIR1954P& H6

Excerpt

.....is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the sessions judge accepted the..........how can he scrutinize the information, & how can he find that the information given to him is frivolous or not, or credible or false. in my opinion therefore the preliminary steps which the magistrate should have taken have notbeen taken in this case. i am not saying that there is no substance in what the police haveagainst the accused, but all the material must be put before a magistrate, in order that the magistrate may apply his mind to it and having applied his mind may then proceed according to law and then give an opportunity to the accused to meet the charge against him. the object of the law of procedure is that there should be a charge which may be met and it is the business of the police to supply the information, the duty of the magistrate to receive it and pass it on to the accused person in order that he may be able to meet it. as this has not been done in this case the proceedings before the magistrate upto now i.e. the proceedings of summoning the accused were improper. not only the magistrate did not issue summons which ordinarily he must do unless the case is covered by the proviso to section 114, but it does not appear from the record before me that the magistrate had any papers of the case before him or ever thought that the proviso was applicable. if the proviso was not applicable it was improper on his part to have issued a warrant.4. in my opinion therefore the magistrate has not complied with any one of the provisions of section 112, cr. p. c. his proceedings therefore culminating in the issue of a warrant against the accused were wholly unjustified and these proceedings must be quashed.5. i do not desire to fetter the police or themagistrates, but a magistrate may, if he proceeds in the proper manner get the informationand finding it good and credible, proceed againunder section 112, cr. p. c.order accordingly.

Full Judgment

ORDER

Soni, J.

1. On 14-10-1952, the Station House Officer of Kotwali Amritsar put in an application before the Prosecuting Sub-Inspector which was in the following terms:

'State versus Nikka Ram alias Nikka under Section 110(F), Cr. P. C. Police Station 'E' Division Amritsar.

Sir,

Nikka Ram alias Nikka son of Naudha Ram, Girth, resident of Gali Rorianwali, Bazar Harcharan Dass, Amritsar, a B. C. on No. 10 of P. S. 'E' Division, is so desperate and dangerous as to render his being at large without security hazardous to the community and the public at large. The local police has got evidence enough to run the B. C. under Section 110 (F), Cr. P. C. It is hereby request (sic) that warrants of arrest under Section 110(F), Cr. P. C. may very kindly be issued against this Nikka Ram alias Nikka B. C. and oblige.'

2. On this the Prosecuting Sub-Inspector wrote on the same day 'Forwarded', and it came up before the present Magistrate on which he recorded an order--

'As requested by the police let a warrant for the arrest of Nikka Ram alias Nikka bailable in the sum of Rs. 5,000/-, returnable on 24-10-1952, be issued.'

This order is dated the same day, 14-10-1952. There is an order of the 24th of October which does not state whether the accused was or was not present but states that the challan has not been received and that it should be called for by 27-10-1952. On the 27th of October his proceedings are recorded as follows :

'Nikka Ram accused is present on bail. Counsel has objected that he has not been able to look into the file as the challan was not presented in time. Let the witnesses for the prosecution be called for 7-11-1952. Let the respondent be given a notice for that date.'

On the same day a revision application was drafted which was presented to the Sessions Judge on the 29th of October, in which amongst other things it was objected that the Magistrate had not complied with the provisions of Section 112, Cr. P. C. and had issued a warrant against the petitioner illegally. The Sessions Judge accepted the objection and has recommended that the proceedings against the petitioner be quashed. On the receipt of the recommendation of the Sessions Judge which is dated 31-1-1953, a rule was issued by this Court on 26-2-1953. This has come up for hearing to-day.

3. Both learned counsel for the petitioner have argued that in this case there has been a complete failure on the part of the Magistrate to comply with the provisions of Section 112, Cr. P. C. They object that there was no information before the Magistrate, that it was the Magistrate's duty to get information against the accused, that it was further his duty after having got that information that he should have made an order in writing in which he should have set forth the substance of the information which he had received and that the Magistrate should have also told the accused the amount of the bond which he had to execute and the term for which it was to be in force and the number, character and class of sureties, if any, required. Learned counsel says the Magistrate did not apply his mind at all to the facts of this case and he merely automatically passed an order which was practically to the effect that the order be as prayed. The objection is that in the application which the Station House Officer made he has given no information to the Magistrate as to what the accused is supposed to have done and has merely reproduced the words of a clause jn Section 110, Cr. P. C.

Mere giving a bad name to a person and reproducing of a clause of a section of a statute against him is giving no information to the Magistrate. It is no doubt the duty of the Magistrate, they say, to protect the interests of the community but it is also his duty to see that nobody is unnecessarily harassed unless there is some information against him, and that the Magistrate did not take the trouble of getting the information which the law makes it incumbent on him to get before he starts the process of law against a citizen. Magistrates are expected to take intelligent interest in the matters before them and not to become handmaidens of the police. In this particular case the Station House Officer did not tell the Magistrate what exactly the accused had done and the Magistrate also took no trouble of getting the information from the Police Officer. He made no order that the accused should appear before him and answer the charge. The charge would have been the information which theMagistrate had received against the accused. The accused has a right to know what the Magistrate is going to try, why he is being summoned before him and what he had done to the prejudice of the interests of the community, so that he may be able to answer the accusations against him. It is urged that if the Magistrate had got information from the Police Officer it may be possible in an individual case for the Magistrate to flnd the information to be vague or to be baseless and the Magistrate may have dismissed the application without calling upon the accused. It is the Magistrate's function to scrutinize the information which is given to him and if the Magistrate does not take the trouble of getting the information from the police how can he scrutinize the information, & how can he find that the information given to him is frivolous or not, or credible or false. In my opinion therefore the preliminary steps which the Magistrate should have taken have notbeen taken in this case. I am not saying that there is no substance in what the police haveagainst the accused, but all the material must be put before a Magistrate, in order that the Magistrate may apply his mind to it and having applied his mind may then proceed according to law and then give an opportunity to the accused to meet the charge against him. The object of the law of procedure is that there should be a charge which may be met and it is the business of the police to supply the information, the duty of the Magistrate to receive it and pass it on to the accused person in order that he may be able to meet it. As this has not been done in this case the proceedings before the Magistrate upto now i.e. the proceedings of summoning the accused were improper. Not only the Magistrate did not issue summons which ordinarily he must do unless the case is covered by the proviso to Section 114, but it does not appear from the record before me that the Magistrate had any papers of the case before him or ever thought that the proviso was applicable. If the proviso was not applicable it was improper on his part to have issued a warrant.

4. In my opinion therefore the Magistrate has not complied with any one of the provisions of Section 112, Cr. P. C. His proceedings therefore culminating in the issue of a warrant against the accused were wholly unjustified and these proceedings must be quashed.

5. I do not desire to fetter the police or theMagistrates, but a Magistrate may, if he proceeds in the proper manner get the informationand finding it good and credible, proceed againunder Section 112, Cr. P. C.Order accordingly.

Same Parties Nikka Ram vs State Same Subject Criminal Same Judge Soni, J. Acts & Sections Code of Criminal Procedure (CrPC) , Sections - 110, 112 and 114

Criminal