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Emperor Vs. Bajaji Appaji Kote - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 557 of 1944
Judge
Reported inAIR1946Bom7; (1945)47BOMLR664
AppellantEmperor
RespondentBajaji Appaji Kote
Excerpt:
.....code (act v of 1898), section 195(1)(b) - complaint by magistrate-b-summary, issue of-indian penal code (act xlv of 1860), sections 182 and 211-complaint, to police-false charge-prosecution-complaint-conversion of graver offence to lesser offence, whether permissible.;where information of an offence given to the police is followed by a complaint to a magistrate's court based on the same allegations, in respect of a false charge made to the police, the complaint of the court is necessary under section 195(1)(b) of the criminal procedure code, 1898, for taking cognisance of an offence punishable under section 211 of the indian penal code, 1860.;sheikh samir v. sajidar rahman (1926) i.l.r. 53 cal. 824, re parameshwaran nambudri (1915) i.l.r. 39 mad. 677, dholliah v. king-emperor..........the petitioner, bayaji appaji, asks us to quash the proceedings under section 211 of the indian (penal code pending against him before the sub-divisional magistrate, n.d., ahmednagar. on october 13, 1942, he gave information to the police patil of shirdi that one amolak khushal was in possession of wheat stolen from his house. this complaint was investigated by the police and found to be false. so on a report made under section 173 of the criminal procedure code the sub-divisional magistrate granted a 'b' summary and the police then sent a charge sheet against the petitioner under section 211 of the indian penal code. but before that the petitioner had filed a regular complaint on the same facts before the resident magistrate, belapur road, and that complaint eventually ended in the.....
Judgment:

Lokur, J.

1. In this revision application the petitioner, Bayaji Appaji, asks us to quash the proceedings under Section 211 of the Indian (Penal Code pending against him before the Sub-Divisional Magistrate, N.D., Ahmednagar. On October 13, 1942, he gave information to the Police Patil of Shirdi that one Amolak Khushal was in possession of wheat stolen from his house. This complaint was investigated by the police and found to be false. So on a report made under Section 173 of the Criminal Procedure Code the Sub-Divisional Magistrate granted a 'B' summary and the police then sent a charge sheet against the petitioner under Section 211 of the Indian Penal Code. But before that the petitioner had filed a regular complaint on the same facts before the Resident Magistrate, Belapur Road, and that complaint eventually ended in the discharge of the accused. The case against the petitioner under Section 211 of the Indian Penal Code which had been sent up by the police, but had been kept pending till then, was taken up for trial and the petitioner contended that the trial could not go on without a complaint from the Resident Magistrate, Belapur Road, under Section 195(1)(b) of the Criminal Procedure Code. That contention was disallowed, and the trial was proceeded with. The learned Sessions Judge of Ahmednagar having declined to interfere, the petitioner has now made this application for revision.

2. Where information of an offence given to the police is followed by a complaint to a Magistrate's Court based on the same allegations, there is a conflict of judicial opinion as to whether the complaint of the Court itself is necessary under Section 195(1)(b) for taking cognisance of an offence punishable under Section 211 of the Indian Penal Code in respect of the false charge made to the police. In the present case the learned Magistrate avoided the difficulty by holding that the theft about which the petitioner gave information to the police was different from the theft about which he lodged his complaint before the Magistrate. He says that in the complaint to the police Bayaji charged his own son and Amolak Khushal with a theft which had taken place fourteen days before October 13, 1942, whereas in his complaint before the Magistrate he alleged that the property was stolen on October 13, 1942. The learned Sessions Judge has rightly pointed out that in fact both the complaints related to the same theft. What was stated in substance in both the complaints was that the stolen wheat was discovered in Amolak's hut on October 13, 1942, and it had been stolen fourteen days previously. The Sessions Judge, however, says that Bayaji's complaint to the Police Patil related to the dishonest possession of wheat stolen from his own house and also from the house of Nanibai, while the subsequent complaint was only with regard to the wheat which had been stolen from his own house. He, therefore, thought that no complaint from the Magistrate was necessary under Section 195(1)(b) of the Criminal Procedure Code for taking cognisance of the offence under Section 211 of the Indian Penal Code in respect of the dishonest possession of wheat stolen from Nanibai's house. The reference to that theft was made in his complaint only to explain how ,'he came to discover in Amolak's house wheat stolen from his own house. He never wanted the police to investigate the theft of wheat from Nanibai's house. He mentioned that theft only in the course of his narrative regarding the finding of his stolen wheat.

3. It is not disputed here that the petitioner's complaint before the Police Patil of Shirdi and that before the Resident Magistrate at Belapur Road related to the same incident and the identical offence. In both he charged Amolak Khushal with dishonestly receiving wheat stolen from his house knowing or having reason to believe that it was stolen property. The Police found the complaint to be false and the complaint before the Magistrate ended in the discharge of Amolak. Can Bayaji be prosecuted by the Police under Section 211 of the Indian Penal Code in respect of the information given to the Police Patil, in the absence of a complaint from the Magistrate? According to Allahabad High Court he can be, but according to other High Courts he cannot be. No decided case of this High Court exactly bearing on this point is brought to our notice. In Tayebulla v. Emperor IL.R (1916) Cal. 1152 and Brown v. Ananda Lal Mullick I.L.R (1916) Cal. 650 the Calcutta High Court held that where an information to the Police was followed by a complaint to the Court, based on the same allegations and on the same charge, and such complaint was investigated by the Court, the sanction or complaint of the Court itself was necessary for a prosecution of the informant, under Section 211 of the Indian Penal Code, even in respect of the false charge made to the police. After the amendment of the Criminal Procedure Code in 1923 instead of the sanction of the Court a complaint in writing by the Court or some Court to which it is subordinate is required. So in Sheikh Samir v. Sajidar Rahman I.L.R (1926) Cal. 824 it was held that where a complaint to the Police was followed by a complaint to the Court, the person who made the complaint could not be prosecuted under Section 211 of the Indian Penal Code except on a complaint of the Court. The Madras High Court has taken the same view in Re Parmeshwaran Nambudri I.L.R (1915) Mad. 677 and Dholliah v. King-Emperor I.L.R (1931) Mad. 1018. The Patna High Court has gone even a step further and has laid down in Sheikh Muhammad Yassin v. King-Emperor I.L.R (1924) Pat.323 that in respect of a false charge made to the police, which alone is the subject-matter of the complaint under Section 211 of the Indian Penal Code, the complaint of the Court itself would be necessary for taking cognisance of it if a complaint was preferred to a Magistrate for a judicial investigation, even though that Magistrate did not in fact investigate the complaint. This was followed in Daroga Gope v. King-Emperor I.L.R (1925) Pat. 33 and Subhag Ahir v. King-Emperor I.L.R (1931) Pat. 155. A similar view has been taken in Sarup Singh v. Emperor A.I.R [1939] Nag. 226, Rambrose v. King-Emperor I.L.R (1928) Ran. 578, and Chuhermal v. Emperor A.I.R [1929] Sind 132. The Allahabad High Court has taken a contrary view in Emperor v. Kashi Ram I.L.R (1924) All. 906, and Emperor v. Prag Datt I.L.R (1928) All. 382. In the former case it was held that an offence under Section 211 of the Indian Penal Code was complete when the charge was made, that is when a particular person was charged, before the police and that the mere fact that subsequent proceedings were taken against the person who was originally charged could not affect what was done when the original charge was made. That case was first heard by Boys J., who disagreed with the view of the other High Courts and thought that a false report or a false charge made outside Court, i.e. an offence under Section 211 of the Indian Penal Code committed outside the Court, could not be held to have been committed 'in relation to a proceeding in a Court,' if subsequently the case went into Court. He, therefore, referred the case to a bench of two Judges who fully agreed with the view expressed by him. That case was followed by Dalai J. (sitting singly) in Emperor v. Prag Datt. The learned Sessions Judge in this case seems to prefer the view of the Allahabad High Court.

4. Under Section 195(1)(b) of the Criminal Procedure Code, 'no Court shall take cognisance of any offence punishable under Section 211 and certain other specified sections of the Indian Penal Code, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.' The learned Judges of the Allahabad High Court found it impossible to hold that an offence was committed 'in relation to a proceeding' when in fact there had been no proceeding, or to hold it to be 'in relation to' the proceeding in a Court merely because some proceedings did subsequently come into Court. With all respect, we are unable to agree With that view. The words of Section 195(1)(b) should be given as wide an application as possible, and as pointed out by Mullick J. in Daroga Gope v. King-Emperor I.L.R (1925) Pat. 33, some of the offences enumerated in the clause are capable of being committed in relation to a judicial proceeding which did not exist. False evidence, for instance, may be fabricated for a contemplated suit, or property may be fraudulently, concealed in contemplation of an execution proceeding. The clause applies if a judicial proceeding is in existence at the time when it is sought to prosecute the offender for the offence in question. As held in Indrachand Bachraj v. Emperor I.L.R (1931) Bom.213 : 34 Bom. L.R. 294, the crucial date for the purpose of Section 195 of the Criminal Procedure Code is the date when the Court takes cognisance of the offence. In In re Vasudeo Ramchandra : AIR1923Bom105 Crump J. observed (p. 1156):

The words 'in relation to' in Section 195 (l)(b) of the Criminal Procedure Code are very general and are wide enough to cover a proceeding in contemplation before a criminal Court, though it may not have begun at the date when the offence was committed.

5. This is in consonance with the preponderance of judicial opinion. Two other reasons are given for that view. According to the Calcutta High Court the complaint before the police becomes merged in the subsequent complaint in Court. According to Ross J. in Shaikh Muhammad Yasin v. King-Emperor, by making a complaint to the Court the. informant has withdrawn the information from the category of mere police proceedings and has raised it to the category of a proceeding in Court. Both these reasons are practically the same and show! the necessity of a complaint by the Court if the informant is to be proceeded against.

6. We are, therefore, clearly of opinion that where an alleged false complaint is first made to the police and then to a Court, a complaint under Section 211 of the Indian Penal Code subsequently filed is a complaint of an offence alleged to have been committed in, or in relation to, a proceeding in Court and cannot be taken cognisance of except on the complaint of the Court.

7. This view does not in any way conflict with the decision in Emperor v. Ukha Mahadu (1928) 29 Bom. L.R.1590, where the case against the informant under Section 211 of the Indian Penal Code had been committed to the Sessions before he filed a complaint to the Court. After referring to the rulings of the Calcutta and Patna High Courts, Fawcett J. observed (p. 1592):

The committtal order, when it was passed, was perfectly valid, because (even adopting the view taken by the Calcutta and Patna High Courts) there had been no complaint made to a Magistrate, which could supersede the complaint to the Police . In our opinion it was not open to the accused in this case to make the committal order invalid by merely making a subsequent complaint to the Magistrate.

8. This is in consonance with the principle laid down in Subhag Ahir v. King-Emperor I.L.R (1931) Pat. 155 that where a Magistrate takes cognisance of an offence under Section 211 of the Indian Penal Code, nothing that happens subsequently can bring into operation the provisions of Section 195(1)(b) so as to deprive him, of his jurisdiction to proceed with the complaint of that offence and dispose of it according to law. This question, however, does not arise in the present case as the complaint under Section 211, Indian Penal Code, against the petitioner was filed by the police after his complaint to the Resident Magistrate, Belapur, had been filed by him.

9. We further think that in view of the very wide meaning given to the words 'in relation to' appearing in Section 195(1)(b) of the Criminal Procedure Code by this Court we may have to go a step further and hold that even if the petitioner had not filed a complaint before the Resident Magistrate, Belapur Road, a complaint from the Sub-divisional Magistrate was necessary for the prosecution of the petitioner under Section 211 of the Indian Penal Code. In Boywalla v. Sorab Engineer : (1941)43BOMLR529 the applicant had made, a complaint to the police against the opponent for an offence under Section 420 of the Indian Penal Code, on which the police started investigation, arrested the opponent, and released him on bail. Subsequently, the police applied to a Magistrate to have the bail enlarged, which was done. After further investigation into the matter the police reported to the Magistrate that no offence was disclosed against the opponent, whereupon the Magistrate discharged the opponent, and canceled his bail-bond. The opponent then filed a case against the applicant for an offence under Section 211 of the Indian Penal Code. It was held that in doing what he had done the Magistrate had taken cognisance of the case under Section 420 of the Indian Penal Code, and that, therefore, under the provisions of Section 195(1)(b) of the Criminal Procedure Code, it was that Magistrate alone who could lodge complaint against the applicant for an offence punishable Under Section 211 of the Indian Penal Code. It was contended in that case on behalf of the opponent that the order made by the learned Magistrate extending bail, and subsequently discharging the accused and cancelling his bail bond, was an administrative order, and not a judicial order, since the Magistrate never considered the merits of the case. But Beaumont C.J. refused to accept that argument and held that the order passed by the Magistrate was not an administrative order but an order made in a judicial capacity. In Ghulam Rasul v. Emperor A.I.R [1936] Lah. 238 Blacker J. held that even if the person who laid false information before the police had not filed any complaint before a Magistrate after the police had refused to take any action, he could not be prosecuted by the police under Section 211 of the Indian Penal Code without the complaint of the Magistrate under whose orders the case was struck off. This was cited with approval by Bhide J. in Shah Mohammad v. Emperor A.I.R [1941] Lah. 216.

10. This view is quite in keeping with the natural interpretation of the words 'in relation to any proceeding in any Court'. Where information relating to the commission of a cognisable offence is given to an officer in charge of a Police Station under Section 154 of the Criminal Procedure Code and is followed by an investigation by him, he is bound under Section 173(1) to complete it without any unnecessary delay, and, as soon as it is completed, to forward his final report to a Magistrate empowered to take cognisance of the offence on a police report, in the form prescribed by the Local Government. That report may be in the form, A when the complaint is true, or in the form B when the information is found to be false, or in the form C when the information is neither true nor false and no case is sought to be sent up. An order passed by the said Magistrate on such report would dispose of the complaint made to the police. That order, as pointed out by Beaumont C. J., is not merely an administrative order but a judicial order of the Court. Hence if the complaint be held to be false and a B summary is issued, the offence under Section 211 of the Indian Penal Code will have to be alleged to have been committed by the complainant in relation to the proceedings in the Magistrate's Court which ended in an issue of the B summary. In Emperor v. Chandabhai : (1912)14BOMLR1160 a contrary view was taken and it was held that the issue of a B summary on a final report by the police was not an order passed under the Code of Criminal Procedure at all, but was a mere administrative order made by the Magistrate for the purpose of facilitating police work and police statistics. Before the amendment of. Section 195 of the Criminal Procedure Code in 1923, the sanction of the Court was sufficient and no complaint by the Court was required and in that case the question under consideration was whether the issue of a B summary amounted to the granting of a sanction under Section 195 (1)(b) of the Criminal Procedure Code, and it was held that it was not. The same view was taken in Emperor v. Lallubhai : (1912)14BOMLR960 and it was held that the order passed by a Magistrate issuing a B summary could not be accepted as a sanction under Section 195 of the Criminal Procedure Code. The word 'Court' is not defined in the Criminal Procedure Code. But as pointed out in In re Nanchand Shivchand I.L.R (192) Bom. 365 : 15 Bom. L.R. 45 the word 'Court' in the Criminal Procedure Code certainly has a wider meaning than the words 'Court of Justice,' as defined in the Indian Penal Code. In view of the obvious purpose for which Section 195 was enacted, the widest possible meaning should be given to the word 'Court' as occurring in that section. Having regard to the object of amending a. 195 of the Criminal Procedure Code requiring a complaint from a Court, instead of its mere sanction, for the prosecution of any offence committed in relation to that Court, we think that the Magistrate passing an order on a final report of the police sent after the investigation under Section 173 of the Criminal Procedure Code should be deemed to be a Court ; passing a judicial order disposing of the information given to the police. In this view the theory of. merger would be inapplicable where the information given to the police is followed by a judicial order by a Magistrate on the final report of the police under Section 173 of the Criminal Procedure Code and a separate complaint on the same allegations is made before a different Magistrate ; In such a case if the complainant is to be prosecuted under Section 211 for giving false information to the police, then a complaint from the Magistrate who passed the order on the final report of the police is required. Whereas if he is to be prosecuted for a subsequent false complaint before another Magistrate on the same allegations, then a complaint from the latter is necessary. The question does not arise in the present case since there is no complaint either by the Sub-Divisional Magistrate who issued the B summary on the police report or by the Resident Magistrate, Belapur Road, before whom the petitioner filed a complaint subsequently. In the absence of either complaint the proceedings before the Magistrate pending against the petitioner are without jurisdiction and must be quashed.

11. One other aspect of the case has also been placed before us. In Daroga Gope v. King-Emperor it was held that although a complaint under Section 211 of the Indian Penal Code might require a complaint of the Magistrate under Section 196 (1)(b) of the Criminal Procedure Code, yet the police might file a complaint under Section 182 of the Indian Penal Code which is covered by Section 195(1)(a) of the Criminal Procedure Code. On this question also there is a conflict of judicial opinion. The Patna decision was based on the ruling in Bhokteram v. Heera Kolita I.L.R (1879) Cal. 184 that it was open to the Court to convict the accused under Section 182 of the Indian Penal Code even though the major offence under Section 211 of the Indian Penal Code had been committed. But this Court has taken a different view in Empress v. Arjun I.L.R (1882) Bom. 184. It is a well established principle that a prosecution for a lesser offence should not be launched when the facts alleged constitute a graver offence. In several cases like Emperor v. Prag Datt and Dholliah v. King-Emperor, it has been definitely laid down after a review of the case-law on the subject, that if the graver offence is disclosed from the facts stated in a complaint the condition laid down under Section 195(1)(b) for taking cognisance of such a case cannot be evaded by electing to name the offence under another section which is more general and less grave. We respectfully agree with this view. It would be highly improper to allow such a device to be used to defeat the statutory provisions of Section 195 of the Criminal Procedure Code.

12. We, therefore, make the rule absolute and order the proceedings before the Magistrate against the petitioner to be quashed as being without jurisdiction by reason of the want of a complaint under Section 195(1)(b) of the Criminal Procedure Code.


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