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Emperor Vs. Ukha Mahadu Barase - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 87 of 1927
Judge
Reported in(1927)29BOMLR1590
AppellantEmperor
RespondentUkha Mahadu Barase
Excerpt:
.....made to a magistrate, which could supersede the complaint to the police. and in the absence of some specific provision such as section 195, criminal procedure code, to prevent the sessions judge exercising jurisdiction, he clearly has power to try the case......and, coming to the conclusion that it was false, obtained a summary in form b from the first class magistrate, malegaon. the papers were then laid before the assistant superintendent of police, malegaon, who sanctioned the prosecution of ukha and his witnesses the first class magistrate, nandgaon, on april 30, 1927, committed these persons for trial before the sessions court of nasik under section 211 of the indian penal code. after the committal order had been passed, and on the same day, ukha made a complaint to the same first class magistrate under section 302, indian penal code, accusing the mother-in-law and three other persons of murder. the magistrate eventually committed these four persona for trial in the sessions court on a charge of murder. that case was tried first by.....
Judgment:

Fawcett, J.

1. In this case on May 4, 1926, accused No. 1 made a complaint to the District Superintendent of Police, Nasik, that one Bai Saru had been murdered by her mother-in-law, and had been thrown into a well by two other persons. The Police investigated the petition, and, coming to the conclusion that it was false, obtained a summary in form B from the First Class Magistrate, Malegaon. The papers were then laid before the Assistant Superintendent of Police, Malegaon, who sanctioned the prosecution of Ukha and his witnesses The First Class Magistrate, Nandgaon, on April 30, 1927, committed these persons for trial before the Sessions Court of Nasik under Section 211 of the Indian Penal Code. After the committal order had been passed, and on the same day, Ukha made a complaint to the same First Class Magistrate under Section 302, Indian Penal Code, accusing the mother-in-law and three other persons of murder. The Magistrate eventually committed these four persona for trial in the Sessions Court on a charge of murder. That case was tried first by the Sessions Court and resulted in an acquittal. Then the Sessions Judge took up the earlier case, but at the outset the Assistant Public Prosecutor conducting the prosecution submitted that further proceedings would be improper in view of the terms of Section 195, Criminal Procedure Code. He contended that, although the original application of Ukha was made to the Police and a Police officer is not a 'Court,' yet the complaint to the Police in effect merged in the subsequent complaint to the Magistrate, and, therefore, no proceedings in regard to the alleged falsity of the first complaint could bo taken without the sanction of the First Class Magistrate under Sub-section (1)(b) of Section 195, Criminal Procedure Code. The learned Sessions Judge has adopted this view and has submitted the case to this Court with a recommendation that the committal order should bo quashed, and adds that 'upon return of the papers they will be sent to the First Class Magistrate, Nandgaon, for such action as he may deem necessary.' This recommendation is supported by counsel for the parsons charged and by the Government, Pleader.

2. As pointed out in the letter of the Sessions Judge, there is no doubt authority for the view of merger that I have referred to. The rulings in Tayebulla v. Emperor I.L.R. (1916) 43 Call. 1152, Brown v. Ananda Lal Mullick I.L.R. (1916) 44 Cal. 650, and Shaikh Muhammad Yassin v. King-Emperor I.L.R. (1924) 4 Pat. 323 have ruled that, where a complainant has made a complaint to the Police and subsequently makes a similar complaint to the Magistrate, he has shown that ho wants to insist upon a judicial investigation, and he must be deemed to have made his complaint to the Magistrate, so that under the present Code he cannot be prosecuted for having made, a false accusation without a complaint by the Magistrate. The Sessions Judge mentions in his letter that in this case the committal order was passed before any complaint was made to a Magistrate, but he thinks this immaterial. 'The point is,' he says, 'that by making his, 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. This necessitates a complaint by the Court if any proceedings are to be taken against Ukha and his witnesses. The matter is no longer in the hands of the Police but within the cognizance of the Court, that is, the First Class Magistrate or the Sessions Court of Nasik.'

3. We do not, however, agree with this contention, which has also been put before us by counsel for the accused. The committal 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. Section 195 at the time of that committal order would not require any complaint in writing by a Court, because the offence under Section 211, Indian Penal Code, was not 'alleged to have been committed in, or in relation to, any proceeding in any Court' within the meaning of Clause (b) of Sub-section (1) of Section 195. 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. There is nothing in the Code which would justify the principle adopted by the Calcutta and Patna High Courts being applied to a case of the present kind; and in the absence of some specific provision such as Section 195, Criminal Procedure Code, to prevent the Sessions Judge exercising jurisdiction, he clearly has power to try the case. If, for any reason, the authorities think that the case ought not to be tried, then the proper course, in our opinion, is the withdrawal of the case under Section 494, Criminal Procedure Code. But as it at present stands, in our opinion, there is no legal ground for quashing the committal order under Section 215, Criminal Procedure Code, The papers to be returned to the Sessions Judge with this intimation.

Mirza, J.

4. I agree.


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