# AJAIB SINGH v. JOGINDER SINGH

- **Citation:** [1969] 1 S.C.R. 145
- **Court:** Supreme Court of India
- **Decided:** 1968-04-30
- **Bench:** S. M. S!Kri, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajaib-singh-v-joginder-singh-4354
- **Pages:** 5

## Headnote

Code of Criminal Procedure (5 of 1898) ss. 195 (l)(b) 479 A(6)
and 559-Complainr under ss. 193, 195, 211 a11d 1208 !PC-Filed by
successor-i11-office of Magistrate-Validity-s. 559, scope of.
India11 Pe11al Code (45 of 1860) ss. 193, 195, 211 and 1208--Comp/aint-Filed by successor-in-office of Magistrate-Validity.
Police Act (5 of 1861) s. 42-Applicahility.
A magistrate acquitted Bhagwant Rai of the charge under ss. 325/34
I.P.C. and observed that he had been falsely implicaited.
The magistrate's
successor-in--0ffice the respondent filed a complaint under ss. 193,
195,
211 and
120B
J.P.C., against
the appellants. The appellants
contendc.d 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 <he 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 l.P.C. and no D•ther.
HELD : The appeal must be dismissed.
E
(i) In view of the ruling of this ·Court jn Shabir Husain Bholu v.
F
State of Maha1·qshrra and Bahan Sin~h v. Jagdish Singh, the prosecution
for offences under"· 19'3 and 195 TPC was barred under s. 479A(6) Cr.
P.C. [148 Bl
(ii)
The complaint was properlv filed bv the succcss·vr-in-office of
the Magistrate.
Section 559 Cr. P.C. en.ables a successor-in-0ffice of a
\ Iagistrate 1to file a complaint. This section applies to all l\1agistrates,
and there is no reason to limit it to 1\.iagistrates whose courts are pennanent.
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 thC n1anner laid down in sub-s.(2). The suh~
section does not 1ne'an that unti! a successor is determined un.der sub-s.
(2) there is no successor for the purpose of sub-s.
(1). [148 F-H:
149 Al
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Behram v. Emperor, 37 Cr. L.J. 776--Lah. 108; Bara Bapen
Manild
v. Gopi Manjhi, A.LR. 1927 Pat. 327. (Tn
re:
Subran1a11ian
Chettiar.
A.LR. 1957 Mad. 442. followed.
(iii) Section 42 of the police Act does not apply to prosecutions under
the Indian Penal Code or other Acts. [l 49 CJ
Mulad Ahmad v. Sta,te of UP., [1963] Supp. 2
S.C.R.
38.
44-45
followed.
I!
(iv) As the con1plaint on the face of it mentioned ss. 193, 195, 211
and 120B. so there was no force, in the contention that rtbe complaint
onlv disclosed t\VO offences under ss. 193 and 195
I.P.C. and no other
f149 F]
14G
Sl.'PRnlE COl'RT REPORTS
f 1969] I S.C.R.
CRIML:<AL APPELLATE J1.'R1s1>1c:r10:-1 : Criminal Appeal !\'o.
A
157ofl965.
. Appeal by special leave from the judgment and order dated
l'_cbruary I, 1965 o.f the Punjab High Court in Criminal Misc.
:\o. 8 of 1964 in Cr. Revision N0. 1375 of 1963.
Nishat Singh Grewal, R11vi11dra Ilana and O. P. Rana, for the
B
.appellants.
R. N. Sachthn" for the respondent No. 2.
The J ud~mcnt of the Court was delivered by
Sikri, .I. This appeal by special ka\c i, directed "gainst the
judgment ol the High Court of Punjab dismissing Criminal Miscellaneous Petition :'>lo. 8 of 1964.
This petition arose out of
the following facts,
Bhagwant Rai and Chhota Ram were tried
under s. 325, J.P.C., read with s. 34, l.P.C., in the Court of Shri
Harish Chander Gaur, Magistrate
!st Class,
J>auala.
Ajaib
Singh, Sub Inspector, one of the appellants before us, had investigated the case.
The \lagistrate, by his order dated
April
5.
l 957, acquitted both the accused and, inter alia, observed that
llhagwant Rai had been falsely implica:cd in the case as he '""
not even present on the day of the occurrence at
Patiala.
On
the application of Bhagwant Rai, Shri Joginder Singh
'Karamgarhia', Magistrate !st Cla'5, Patiala, who succeeded Shri Harish
Chander Gaur, filed a complaint under ss. 193, 195, 211
and
1208, l.P.C., on Octoher 31. 1958, against six person

## Text

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AJAIB SINGH
v.
JOGINDER SINGH
April 30, 1968
[S. M. S!KRI AND V. RAMASWAMI, JJ.J
Code of Criminal Procedure (5 of 1898) ss. 195 (l)(b) 479 A(6)
and 559-Complainr under ss. 193, 195, 211 a11d 1208 !PC-Filed by
successor-i11-office of Magistrate-Validity-s. 559, scope of.
India11 Pe11al Code (45 of 1860) ss. 193, 195, 211 and 1208--Comp/aint-Filed by successor-in-office of Magistrate-Validity.
Police Act (5 of 1861) s. 42-Applicahility.
A magistrate acquitted Bhagwant Rai of the charge under ss. 325/34
I.P.C. and observed that he had been falsely implicaited.
The magistrate's
successor-in--0ffice the respondent filed a complaint under ss. 193,
195,
211 and
120B
J.P.C., against
the appellants. The appellants
contendc.d 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 <he 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 l.P.C. and no D•ther.
HELD : The appeal must be dismissed.
E
(i) In view of the ruling of this ·Court jn Shabir Husain Bholu v.
F
State of Maha1·qshrra and Bahan Sin~h v. Jagdish Singh, the prosecution
for offences under"· 19'3 and 195 TPC was barred under s. 479A(6) Cr.
P.C. [148 Bl
(ii)
The complaint was properlv filed bv the succcss·vr-in-office of
the Magistrate.
Section 559 Cr. P.C. en.ables a successor-in-0ffice of a
\ Iagistrate 1to file a complaint. This section applies to all l\1agistrates,
and there is no reason to limit it to 1\.iagistrates whose courts are pennanent.
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 thC n1anner laid down in sub-s.(2). The suh~
section does not 1ne'an that unti! a successor is determined un.der sub-s.
(2) there is no successor for the purpose of sub-s.
(1). [148 F-H:
149 Al
G
Behram v. Emperor, 37 Cr. L.J. 776--Lah. 108; Bara Bapen
Manild
v. Gopi Manjhi, A.LR. 1927 Pat. 327. (Tn
re:
Subran1a11ian
Chettiar.
A.LR. 1957 Mad. 442. followed.
(iii) Section 42 of the police Act does not apply to prosecutions under
the Indian Penal Code or other Acts. [l 49 CJ
Mulad Ahmad v. Sta,te of UP., [1963] Supp. 2
S.C.R.
38.
44-45
followed.
I!
(iv) As the con1plaint on the face of it mentioned ss. 193, 195, 211
and 120B. so there was no force, in the contention that rtbe complaint
onlv disclosed t\VO offences under ss. 193 and 195
I.P.C. and no other
f149 F]
14G
Sl.'PRnlE COl'RT REPORTS
f 1969] I S.C.R.
CRIML:<AL APPELLATE J1.'R1s1>1c:r10:-1 : Criminal Appeal !\'o.
A
157ofl965.
. Appeal by special leave from the judgment and order dated
l'_cbruary I, 1965 o.f the Punjab High Court in Criminal Misc.
:\o. 8 of 1964 in Cr. Revision N0. 1375 of 1963.
Nishat Singh Grewal, R11vi11dra Ilana and O. P. Rana, for the
B
.appellants.
R. N. Sachthn" for the respondent No. 2.
The J ud~mcnt of the Court was delivered by
Sikri, .I. This appeal by special ka\c i, directed "gainst the
judgment ol the High Court of Punjab dismissing Criminal Miscellaneous Petition :'>lo. 8 of 1964.
This petition arose out of
the following facts,
Bhagwant Rai and Chhota Ram were tried
under s. 325, J.P.C., read with s. 34, l.P.C., in the Court of Shri
Harish Chander Gaur, Magistrate
!st Class,
J>auala.
Ajaib
Singh, Sub Inspector, one of the appellants before us, had investigated the case.
The \lagistrate, by his order dated
April
5.
l 957, acquitted both the accused and, inter alia, observed that
llhagwant Rai had been falsely implica:cd in the case as he '""
not even present on the day of the occurrence at
Patiala.
On
the application of Bhagwant Rai, Shri Joginder Singh
'Karamgarhia', Magistrate !st Cla'5, Patiala, who succeeded Shri Harish
Chander Gaur, filed a complaint under ss. 193, 195, 211
and
1208, l.P.C., on Octoher 31. 1958, against six persons including
the appellants, Ajaib Singh and Malkiat Singh. Shri 0. P. Gaur.
Magistrate First Class, by his order dated June l,
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 he tiled by
Shri Harish Chander Gaur, who had disposed of the case endinp
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. l.P.C., did not fall within the purview of
s. 479A. Capoor, J., further held that~'· 42 of the Police Act.
I 861, 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. l.P.C .. against Jaswant Singh. one
of the accused. could not be con;idcred at that stage. The High
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A.JAIB SINGH V . .JOG!NDER SINGH (Sikri, J.)
147
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Court accordingly set aside the order of the learned Additional
Sessions Judge and directed that the respondents be proceeded
against according to law.
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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 Qf
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, 1.961.
In the meantime, the appellants put in Criminal Miscel::aneous 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
Singli.
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. Shanna, 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
SUPREME COCRT REPORTS
[!969] I S.C.R.
He accordingly dismissed the Criminal Miscellaneous
Petition.
The appellants having obtained special leave, the appeal is no11·
before us.
111e learned counsel for the appellants contends that on the
facts prosecution for offences under ss. 193 and 195, l.P.C., was
barred under s. 479A(6), Cr. P.C.
In our opinion, this contention must be accepted in view of the rulinc of this Court in
~habir Hus.min B/10/u v. State of Maharashtra(1) and Baban Singh
v. Jagdish Singh(').
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 "hich the proceedings out of which
the offences arose took place.
We sec 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 perfom1ed 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
Magistra t.: in a Presidency
town,
and the
District
Magistrate outside such towns, shall detcm1ine 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 ~uch Magistrate."
This section was substituted for the original s. 559 by the Code
of Criminal Procedure (Amendment) Act
(XVlll of
1923).
Since the amendment it has been held, and we think rightly, that
a successor in ollicc of a Magistrate can tile a complaint under
s. 476, Cr. P.C .. in respect of an offence under s. 195, I.P.C ..
committed b~forc his predecessor.
(See Be/mun v. Emperor(')
Bara !Japen Ma11jhi v. ·Go pi Manjhi(') and In rr : Subramaniam
Chettiar(').
This section applies to all Magistrates
and there
is no reason whv the plain terms of the section should be
cut
down to limit ii. as suggested by the learned counsel
for
the
appellant, to l\fagistratcs whose courts are permanent.
It. s~c.1m
to us further clear that sub-s. (2) has not the effect of hm1tmg
s. 559(1 ).
Section 559(2) applies when there is a doubt as
---· --·--·-- --
--
(!) (196iJ Supp. 1 S.C.R. SOI.
(2)
A.I. R
JQ67 S.C. 68.
(JI
"27 Cr. I.. J. -:07(..f...;1h. 108.
(4)
A. I. R. 1927 P:tt 1:!7.
(5) A. 1. H. 1 q_.:;7 Mad . .J~2
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AJAIB SINGH v. JOGINDER SJNGH (Sikri, J.)
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 the
learned counsel that s. 42, Police Act, creates a bar and the prosecution is time-barred under this section.
This Conrt held in
Mulud Ahmed v. State of U.P.( 1) thats. 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 a'ny 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 prescribed. 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.
(I} [1963] Supp. 2 S.C.R. 38, 44·45.