Case ID: 2399

Judgment:
minal 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 section 325	 I.P.C.	 read with section 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 sections 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 section (6) of section 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 section 479A	 Cr. P.C.	 vis a vis section 476	 Cr. P.C.	 because two of the offences mentioned in the complaint	 namely. s.211 and section 120B	 I.P.C.	 did not fall within the purview of s.479A. Capoor	 J.	 further held that section 42 of the Police Act.1861	 had no application to a case in which a complaint was made by the Court under section 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 section 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 sections 193 and 195	 I.P.C.	 was barred under section 479A(6)	 Cr. In our opinion	 this contention must be accepted in view of the ruling of this Court in Shabir Hussain Bholu vs State of Maharashtra(1) and Baban Singh vs 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 section 195 (1) (b)	 Cr. P.C.	 a complaint in respect of sections 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 section 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 section 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 section 476	 Cr. P.C.	 in respect of an offence under section 195	 I.P.C.	 committed before his predecessor. (See Behram vs Emperor(3) Bara Bapen Manjhi vs 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) 108. (2) A.I. R. (4) A. 1. R. 1927 Pat. (5) A. 1. R. 149 to who the successor is	 and that doubt can be resolved in the manner laid down in sub section The sub section does not mean	 as contended by the learned counsel	 that until a successor is determined under sub section (2) there is no successor for the purposes of sub section If there is no doubt about who the successor is	 then that person can exercise the powers under sub section 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 section 42	 Police Act	 creates a bar and the prosecution is time barred under this section. This Court held in Mulud Ahmed	 vs State of U.P. (1) that section 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 section 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 section 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 section 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 section 193 and section 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 sections 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.

Summary:
A magistrate acquitted Bhagwant Rai of the charge under sections 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 sections 193	 195	 211 and 120B I.P.C.	 against the appellants. The appellants con tended that (i) prosecution for offences under sections 193 and 195 I.P.C.	 was barred under section 479A(6) Cr. P.C.; (ii) according to section 195(1)(b) Cr. P.C.	 only the Magistrate before whom the original proceedings were taken could file the complaint in respect of sections 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 sections 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 vs State of Maharashtra and Baban Singh vs Jagdish Singh	 the prosecution for offences under sections 1913 and 195 IPC was barred under section 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 section (2) has not the effect of limiting section 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 section [148 F H;149 A] Behram vs Emperor	 108; Bara Bapen Manihi vs Gopi Manjhi	 A.I.R. 1927 Pat. (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 vs State of U.P.	 [1963] Supp. 2 S.C.R. 38	 44 45 followed. (iv) As the complaint on the face of it mentioned sections 193	 195	 211 and 120B	 so there was no force. in the contention that the complaint only disclosed two offences under sections 193 and 195 I.P.C. and no other F149 F] 146