1. The applicant Ganpatram was convicted and acntenced to pay fines of Ra. 300-0.0 and Ra. 200-0-0 Under Sections 211 and 600, Penal Code respectively by (he First Claas Magistrate, Bilaspur; and in appeal the Extra Additional Sessions Judge, Bilnapur, affirmed the convio-tiona but set aside the sentence awarded under 6. 600. The applicant has now come up in mi. sion to this Court.
2. On 22nd May 1947, the applicant made a report vide Ex. P-l to the police that on the previous night there had been a house-breaking at his house in Kota and that clothes, bedding and ornaments, including a kakni, worth H9. 35-8-0 had been removed. Dating the subsequent investigation the applicant told Misbrilal (P.W. 2) Sub-Inspector, that Rambai (P.W. 3),hiserat-wbile mistress, was the thief and when her house was searched, clothes and ornaments were found there, She had also pawned a kakni two months previously with Rameshwar (P.W. 1) for EB. 3-00 The investigation revealed that there had not actually been a real house-breaking or theft and Bambai filed the complaint which initiated the present case.
3. The applicant in examination denied that Rambai was his mistress, that be had given a kakni, other ornaments or clothea to her or that he had charged her with being a thief. Two witnesses were examined in his behalf, but their testimony was disbelieved for good reasons.
4. The association between the applicant and Rambai was established and it was plain from her evidence and that of Rameshwar (P.W 4) that there was an estrangement between them from a date not long before the alleged house-breaking. The kakni and other articles found with her had been previously given to her by the applicant and the Sab-Inspector's evidence showed that the marks of house-breaking were not real,
5. The applicant had not named her in his report to the police and Ex. P2 shows that when he wa3 questioned by the police he had merely expressed his suspicion of her complioity in the house-breaking and theft, The learned Extra Additional Sessions Judge in dealing with this aspect of the case made the following observations :
It is true that mere expression of suspicion to the police does not necessarily amount to oharging a particular peraon of the criminal offence, but the question is one of oiroumstancea and the test is whether by such naming or expression of suspicion the appellant intended to set the criminal law in motion against the complainant. As discussed hereafter the reported occurrence was really a fake and in this context there is no room for doubting that the appellant did intend to Bet the criminal law in motion against Bambai in howsoever guarded a manner he may have attempted to introduce her came as the culprit. This also amounts to a defamatory imputation.
6. These observations cannot be endorsed. No criminal proceedings were instituted, or caused to be instituted, against Rambai and, as adumbrated, the applicant had not named her in his report. Ex. P-l, to the police. It is true that S 211, Penal Code also relates to a case in which a person, with intent to cause injury to any person, falsely charges that person with having committed an offence, knowing that there 13 no just or lawful ground for such charge; but here, as Ex. P-2 indicates, the applicant had not charged Rambai with having committed the offence in question. All that he had dons was to express his suspicion of her complicity and, as stated by Ratanlal at page 527 of the Law of Crimes, 17th Ecln., in the commentary Under Section 221, Penal Code, a statement to the police of a suspicion that a particular person has commutted an offence is not a charge within the meaning of that section.
7. In Abdul Ghafur v. The Crown, 6 Lab. 28 : A.I.R. 1925 Lah. 325 : 26 Cri. L.J. 1165 Abdul Ghafur made a report to the police that his she buffalo had been poisoned and that he suspected Gulam Basul and Abdul Eau of having administered poiaon to it. The police investigation revealed that there had been no case of poisoning and the charge wa3 struck off. It was held by Scott-Smith J. that the re-port to the police did not amount to a charge of a criminal offence Under Section 211, Penal Code, and in so deciding he followed the view of Sundara Aiyar J, in Swaminatha Thevan v. Emperor, 14 I.C. 767 : 13 Cri. L.J. 303 A Division Bench of the Allahabad High Court in Emperor v. Eashiram 46 ALL 9C6 : A.I.R. 1924 ALL 779 : 25 Cri. LJ 1239 made the following observations :
If the complainant confines himself to repotting what he knows of the facts, stating his suspicions, and leaving the matter to be further investigated by the police, or leaving the police to take such couree as they think right in the performance of their duty, he may be making a report, but he is not making a charge, But if he takes the further step, without waiting for any official investigation, of definitely alleging his belief in the guilt of a specified person, and his desire that the specified person be proceeded against in Court, that act of his, whether verbal tit written, if made to an officer of the law authorized to initiate proceedings based upon the complainant's statement, whether amounting to an expression of the complainant's belief in the guilt of the specified person, or his desire that Court proceedings be taken against him, amounts to making a charge.
8. Nor did the applicant's expression of suspicion to Mishrilal, Sub-Inspector, constitute defamation. In1 Queen. Empress v. Govinda Pillai, 16 Mad. 235 : l weir 687 a Division Bench held that a statement made in answer to a question put by a polica officer in the course of investigation made by him 19 privileged, and cannot be made the foundation of a charge of defamation. This view was followed in Emperor v. Parwari, is : AIR1919All276 by Knox J. who held that statements made to the police as a result of action taken Under Section 154 or Section 155, Criminal P.C., are privileged statements, and as such, cannot be used as evidence or made the foundation of a charge of defamation. I am in respectful agreement with these views.
9. The convictions and sentence are set aside and the applicant is acquitted. The fine, if paid by, shall be refunded to him.