Magistrate has power to issue summons under section 91 Cr.P.C
6. The learned Magistrate needed the proceedings dated 12.04.2008 for the purpose of taking a decision in PRC No. 7 of 2003, and therefore it was very much within his powers to have issued summons under Section 91 Cr.P.C. to the Superintendent of Police, Tiruvannamalai to produce the file relating to the communication dated 12.04.2008. Hence, the action of the Magistrate in issuing summons under Section 91 Cr.P.C cannot be faulted.
Magistrate can take action on S.P for not producing the documents summoned by the magistrate
14. In this case, the Superintendent of Police did not produce the records that were called for, in obedience to the summons issued under Section 91 Cr.P.C by the learned Magistrate. But before proceeding under Section 349 Cr.P.C., it is imperative for the Court to give a reasonable opportunity for the person to produce the document. Despite such an opportunity, if the person does not offer any reasonable excuse for such refusal, the Court can proceed against him. Therefore, it is incumbent on the part of the Court to inform the person that action will be initiated under Section 349 Cr.P.C for not obeying the summons that was issued under Section 91 Cr.P.C.
15. In this case, the Magistrate has only sent reminders to the Superintendent of Police, but had not informed the Superintendent of Police that he would initiate action under Section 349 Cr.P.C for failure to obey the summons that was issued under Section 91 Cr.P.C. Had the Magistrate followed the provisions of Section 349 Cr.P.C., in letter and spirit, the Superintendent of Police would not have had any escape route.
16. Section 350 Cr.P.C. also will not apply to the facts of this case, because the Magistrate had not issued any summons for the attendance of the Superintendent of Police as a witness. The Magistrate had only issued summons under Section 91 Cr.P.C. to the Superintendent of Police for production of documents. For initiating action against a public servant under Sections 344, 345, 349 and 350 Cr.P.C., no sanction is required, because these provisions do not create an offence, per se, and such powers have been conferred on the Court for taking summary action in order to uphold the majesty of the judicial process and for effective administration of justice. Action under Sections 344, 345, 349 and 350 Cr.P.C. can be taken only by the Court whose orders have been flouted or in whose presence the said offence has been committed, as the case may be.
Magistrate’s power to take action if the warrant is not executed
24. Whenever a Court issues a warrant, it should make an entry in the Warrant Register and record the name of the Station House Officer to whom the warrant is directed to be executed. The warrant should bear a formal date for the police to report to the Court. On the specified date, the Court shall call for a report from the Police Officer about the steps that have been taken for executing the warrant. At this juncture, it may be relevant to quote Section 44 of the Tamil Nadu District Police Act, 1859:
“44. Penalties for neglect of duty, etc.-
Every Police-officer who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by competent authority or who shall cease to perform the duties of his office without leave, or without having given two months’ notice as provided by this enactment, or engage without authority in any employment other than his Police duty, or who shall maliciously and without probable cause prefer any false, vexatious or frivolous charge or information against any individual, or who shall knowingly and wilfully and with evil intent exceed his powers, or shall be guilty of any wilful and culpable neglect of duty, in not bringing any person who shall be in his custody without a warrant before a Magistrate as provided by law, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction, before a Magistrate, to a penalty not exceeding three months’ pay, or to imprisonment with or without hard labour not exceeding three months or both.”
25. A combined reading of Sections 21 and 44 of the Tamil Nadu District Police Act, 1859 would show that, a duty has been cast upon the police to execute warrants and if there has been a violation of the duty, the Police Officer can be convicted under Section 44 of the Act. For prosecuting a Police Officer for neglect of duty, no sanction is required. Sanction is required only for commission of an offence in discharge of a duty. The Police Act itself prescribes certain duties and provides punishment for neglect of the duty. It will be ludicrous on the part of the Police Officer to contend that, he committed neglect of duty while discharging his duty, for one is antithetical to the other. The question, whether sanction is necessary for prosecution under Section 44 of the Tamil Nadu District Police Act, 1859, is no longer res integra.
After quoting Re: S.A.A. Beyabani, AIR 1953 Mad 1002 : (1952) 2 MLJ 398; See: S.A.A. Biyabani Vs. The State of Madras, AIR 1954 SC 645.
30. In cases involving failure to execute non-bailable warrant or summons, a reasonable opportunity should be given to the Police Officer to explain his position, and after determining that there is a prima facie case to show that there has been violation of duty, the Presiding Officer of the Court shall prepare a complaint within three months, and send it to the Chief Judicial Magistrate or Chief Metropolitan Magistrate, as the case may be, for taking cognizance of the offence under section 44 r/w 21 of the Tamil Nadu District Police Act. The offence under section 44 r/w 21 will fall within Entry-III in Classification-2 of Schedule-I of the Code of Criminal Procedure, viz., non-cognizable, bailable, triable by any Magistrate. The procedure for trial can either be under Chapter-XX Trial of Summons-Cases by Magistrate, or Chapter – XXI dealing with Summary Trials.
31. An interesting question arose before the Calcutta High Court as to whether the provisions of Section 29 of the Indian Police Act, 1861, which is in parimateria with Section 44 of the Tamil Nadu District Police Act, 1859, creates an offence within the meaning of Section 8 of the Cr.P.C., 1872, which is similar to Section 4 of the Cr.P.C., 1973. Though Section 29 of the Indian Police Act, 1861 and Section 44 of the Tamilnadu District Police Act, 1859 use the word ‘penalty’, yet the delinquencies mentioned therein are offences, since the aforesaid sections use the expression ‘conviction’ as a precondition for imposition of penalty (See: The Queen Vs Golam Arabee, Calcutta DB Judgment dated 16.2.1876, 1876 The Weekly Reporter (Criminal) 20).
Party
THE SUPERINTENDENT OF POLICE vs. THE JUDICIAL MAGISTRATE COURT, CHEYYAR – Crl.O.P. No. 12748 of 2015 and M.P. No. 1 of 2015 – 07-09-2015.
