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In Re: Pampappa Ballalrao Desai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 16 of 1926
Judge
Reported in(1926)28BOMLR490
AppellantIn Re: Pampappa Ballalrao Desai
Excerpt:
.....section 211, 188-false charge-fake information-magistrate not examining the complainant on cath-criminal procedure code (act v of 1898), section 200-complaint of false charge not proper.;where a complainant prefers a criminal charge before a magistrate who neither examines him on oath nor takes down his statement in writing, he cannot be proceeded against under section 211 of the indian penal code even if the charge turns out to be a false one. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of..........the same day to the subordinate magistrate, and was subsequently transferred to the file of the district magistrate. the applicanthimself interviewed the district magistrate the same day at the latter's bungalow accompanied by his pleader. it is stated that the rao saheb only knows kanarese, and that he did not know exactly what his pleader stated to the magistrate. admittedly, however, the magistrate's intervention was requested in respect of the destruction of these mango grafts,3. the applicant states that he never intended that this should constitute a 'charge' by him, or amount to the institution of any criminal proceedings within the meaning of section 211 of the indian penal code. the district magistrate on the other hand took the view, as appears from the above complaint, that.....
Judgment:

Marten, J.

1. On or about December 9, 1925, Mr. Monteath, the District Magistrate of Dharwar, filed a complaint before Mr. Acott, the Sub-Divisional Magistrate of Dharwar, against the present applicant, Pampappa Ballalrao Desai, requesting that Pampappa be tried for an offence under Section 211 or 182 of the Indian Penal Code or such other offence as the inquiry may disclose during the trial, Pampappa presented an appeal to Mr. Ferrers, the Sessions Judge, praying that this complaint might be directed to be withdrawn. On January 11, 1926, the Sessions Judge dismissed that appeal. Pampappa has now presented two applications to this Court, viz, No, 9 of 1926 for a transfer of the proceedings, and No. 16 of 1926, praying that the complaint may be directed to be withdrawn. I will deal with the latter application first, as it is the only one which has so far been argued before us.

2. The facts leading up to the above complaint are shortly as follows:-Pampappa, the applicant, appears to be the Chairman of the Taluka Development Association, and a share-holder in the Mango Joint Cultivation Society ofAminbha v. Taluka Dharwar. He is also a Rao Saheb. On May 9, 1925, a large number of mango grafts on the lands of the Society were destroyed. The next day, viz., Sunday May 10, action was taken by the Secretary of the Society, and also by the Rao Saheb. The Secretary lodged a formal complaint before the Patil which was sent the same day to the Subordinate Magistrate, and was subsequently transferred to the file of the District Magistrate. The applicanthimself interviewed the District Magistrate the same day at the latter's bungalow accompanied by his pleader. It is stated that the Rao Saheb only knows Kanarese, and that he did not know exactly what his pleader stated to the Magistrate. Admittedly, however, the Magistrate's intervention was requested in respect of the destruction of these mango grafts,

3. The applicant states that he never intended that this should constitute a 'charge' by him, or amount to the institution of any criminal proceedings within the meaning of Section 211 of the Indian Penal Code. The District Magistrate on the other hand took the view, as appears from the above complaint, that the applicant was making a formal charge of destruction, and that the person accused of that destruction was the Sub-Inspector of Police,Mr. Sumant. It is, however, clear, that the District Magistrate did not examine the applicant on oath, nor did he take down the applicant's statement in writing as he should have done under Section 200 of the Criminal Procedure Code, What the District Magistrate did do was to cause an enquiry to be made into the matter by the District Superintendent of Police. But there again, the learned Magistrate does not appear to have recorded his reasons for postponing the issue of process and making that enquiry as he should have done under Section 202 if the case was treated as being a formal complaint under the Code.

4. What happened next was that the formal complaint filed by the Secretary of the Association was proceeded with, and eventually it was dismissed on or about August 20. Then next on October 19, the applicant was called on by the District Magistrate to show cause why he should not be proceeded with under Sections 211 or 182 of the Indian Penal Code, He made his answer, but after that had been heard the District Magistrate sent in the above complaint on December 9.

5. The papers before us introduce many matters which to ray mind are irrelevant or inadmissible, and I think it is essential for the Court to confine its attention to the precise points before it, and not to wander off into the allegations and counter-allegations which have been made by the applicant against the Sub-Inspeator of Police and vice versa as to matters prior to the date of the destruction of the mango grafts. The argument of the applicant amounts in effect to this-On the Magistrate's own showing the applicant was making a 'charge' within the meaning of Section 211. That being so, the complaint could only be laid under Section 211 and not under Section 182 (see Emperor v. Apaya Tatoba Munde : (1913)15BOMLR574 . But it was not legitimate for the prosecution to institute proceedings under Section 211 for making a false charge before the proceedings in which that charge was actually made had been finally and properly determined according to law. Accordingly, it was not open to the District Magistrate to direct an enquiry in the way which he did, and to disregard the provisions of the Criminal Procedure Code, namely, not to examine the applicant on oath, nor to take down his statement in writing, nor to give the Magistrate's reasons for the enquiry by the District Superintendent of Police. It was further argued that a, 211 is the main charge laid in the Magistrate's complaint, and that though Section 182 is mentioned it has really no more weight than the other sections referred to in general words by the Magistrate. In substance the charge was one under Section 211.

6. As regards the decisions of this Court it has been held in Emperor v. Apaya Tatoba Munde that if a case comes clearly under Section 211, the procedure to be followed should be under that section and not under Section 182. Thus, as regards the lodging of a complaint for making a false charge before the original proceedings have been properly determined there is a recent decision of the Chief Justice and Mr. Justice Shah reported in Inre Ningappa Rayappa Ghotadhi (1921) 26 Bom. L.R. 183. There, a Magistrate without examining a complainant as he was bound to do, under Section 200 of the Criminal Procedure Code, dismissed & complaint, and then called upon the complainant to show cause why he should not be prosecuted under Section 211 or 182. The Court held that this could not be done as the original complaint had never been properly dismissed according to law.

7. And if one considers the underlying principles, then surely Section 200 and 203 of the Criminal Procedure Code are perfectly intelligible. They merely lay down the elementary principle that before you decide against a litigant you shall first hear him. If on the other hand, the Magistrate merely reads a complaint, and then proceeds to dismiss it without hearing what the complainant may have to say, then that may be said to be in general a denial of elementary justice.

8. We recognise that in In re Ningappa Rapappa Ghotadki another authority in Imperatrix v. Jijibhai Govind I.L.R. (1896) 22 Bom. 596 does not appear to have baan cited to the Court, But there, as pointed out by Sir Thomas Strangman, the case had been finally decided, and the accused heard and convicted. Consequently, different considerations would then arise, and mere irregularities in the earlier procedure would not necessarily result in the conviction being set aside, unless the Court came to the conclusion under Section 537 of the Criminal Procedure Code that they had occasioned a failure of justice.

9. The Advocate-General was really unable to dispute the argument that if the Magistrate was correct in thinking that a ''charge' had been laid before him, then the procedure actually adopted by the Magistrate for dealing with that complaint was irregular, Accordingly, in our judgment the contention of the applicant, so far as it refers to Section 211, is correct, and consequently it was not open to the District Magistrate to lodge a complaint for making a false charge until he had first investigated according to law the original complaint, which the applicant had made. I should here mention that, as a preliminary point, the Advocate-General argued that no appeal would lie to us from Mr. Ferrer's order as regards either Section 211 or 182. It was pointed out that the old Section 195(6) of the Criminal Procedure Code has been omitted in the amendedCode, and that there is now a new Section 476(B) which gives a direct right to appeal to a superior Court from either admission or the rejection of a complaint in an inferior court. It is further pointed out that in the sections giving this High Court certain powers in revision-I refer to a 439 (1)-the old Section 195 has been omitted. It is further argued that although this Court is by Section 439 given all the powers conferred on a Court of Appeal by Section 423 (amongst other sections) yet Section 423 would not enable this Court to alter or vary Mr. Ferrer's order, But, after listening to an interesting argument, we think that there is jurisdiction under Section 423(c) to treat the present application as an appeal from Mr. Ferrer's order, and in the words of that section 'to alter or reverse such order,' and further that we have power under Sub-secbion (d) to make 'any incidental order that may be just and proper.' As we read the decision of the Chief Justice and Mr. Justice Shah in Somabhai v. Aditbhai : AIR1924Bom347 they agree that the jurisdiction exists although it has to be sparingly exercised.

10. Further, there is a new Section 561(A) which provides that nothing in the Code is 'to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.' It may, therefore, be argued that if the original complaint by the accused was dealt with in a wholly irregular way by the judicial officer before whom it was laid, then we ought to have power to prevent any further proceedings being taken until that complaint has been regularly disposed of, But, speaking for myself, I am always rather chary of invoking the inherent powers of the Court, and none the loss so when we have had no opportunity of reconsidering the Supreme Court Charter of 1823, which may have some bearing on the powers we possess as successors of the Supreme Court. But, as regards the form of the order asked for, viz , to direct the withdrawal of the complaint, Sir Thomas Strangman has pointed out that these very words are to be found in Section 476(B) as being one of the powers conferred on an appellate Court,

11. Turning next from Section 211 to Section 182, the real crux of the argument before us has been whether the prosecution are entitled to rely in the alternative on Section 182, Now, I can quite see that on a certain view of this case the facts might fall within Section 182 and not within Section 211, viz,, if the applicant only gave certain information to a public servant within the meaning of Section 182, but did not in any way institute a charge under Section 211. If that were so, then it would be necessary for the prosecution to show that the information so given was false, and further that it was given with theintention of causing such public servant to do or omit certain matters mentioned in Sub-section (a) of Section 182, or alternatively to use his lawful powers to the injury or annoyance ofsome person under Sub-section (b). Further, the Magistrate has referred in his complaint to Section 182 specifically and it may be that it would be possible to confine the complaint by amendment or otherwise to Section 182. But here we have a different question of jurisdiction, because we have not on that hypothesis a complaint similar to that for which a direct appeal is given by Section 476B to the appellate Court. Section 476(1) only applies to offences referred to in Section 195(1) (b)or (c), and though an offence under Section 211, Indian Penal Code, is within Sub-section (b), an offence under Section 182, Indian Penal Code, is referred to in Sub-section (a).

12. Apart from that we feel the force of the argument for the applicant that in substance this complaint by the District Magistrate is founded on the view that there was a definite 'charge' made by the applicant, and that the Magistrate has proceeded on that basis. On the whole, then we think it better to treat the complaint on the lines which the Magistrate himself has stated, viz,, that in his view there was a charge. Consequently, under the decision in Emperor v. Apaya (1013) 16 Bom. L.R. 574 the proper course to take would be to treat the caseas one under Section 211 and not under Section 182. That being so, we think the better course is to direct the whole of this complaint to be withdrawn. Then, if the Magistrate so thinks fit, he will be at liberty by some separate document to institute a fresh complaint under Section 182, and to found it on such facts as in his view, if at all, support a charge under Section 182. At present the Magistrate has really not applied his mind to the exact facts of the case so as to bring it precisely within Section 182. In this particular case then and more especially as it is a criminal one, we think it safer on the whole to order that the present complaint be withdrawn in preference to it being amended, so that when any complaint comes eventually to be heard it will be directed specifically to the particular section under which the applicant can (if at all) be legitimately charged.

13. I wish to add this. In my opinion the District Magistrate would be well advised if, when he is making applications or complaints to judicial officers, he confines his statements strictly to matters which are relevant and which are admissible in evidence. There is a great distinction between, for instance, what one police officer may say to another about a case and what a judicial officer may say. Necessarily much information that passes between police officers is of a character that is inadmissible in Courts of law. And similar observations may apply to executive officers. But when we come to the Courts of law, then it is essential that the accused should not be prejudiced by matters being introduced which it would be wholly inadmissible to tender in evidence, and in our judgment this applies no less to statements furnished to Subordinate Magistrate than to statements furnished to the High Court. Speaking for my self, I have felt a strong objection to the way in which the two applications to this High Court for withdrawal and for transfer have been overburdened with a large amount of heterogeneous material which has little or no bearing on the dispute which we actually have to decide, viz,, whether we should allow this present complaint to go forward, and if so whether we should direct a transfer. Counsel, however, in their excellent arguments have confined their attention to the relevant paints at issue.

14. In the result we order that the complaint in question which has been made by the District Magistrate be directed to ba withdrawn, and that the order of the Sessions Judge be discharged.

Coyajee, J.

15. I am of the same opinion. The reasons for the order which we are now making have been so fully explained in the judgment now delivered by ray learned brother that I have nothing to add. But I desire to associate myself in the observations made by my learned brother regarding the advisability of confining the statements, in applications and complaints made to judicial officers and in petitions made to this Court, strictly to matters which are relevant and which are admissible in evidence.


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