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In Re: Dinshahji Hirjibhai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Revision No. 299 of 1931
Judge
Reported inAIR1932Bom177; (1932)34BOMLR289; 137Ind.Cas.129
AppellantIn Re: Dinshahji Hirjibhai
Excerpt:
.....to the police to enable them to make inquiry ; but where he lodges a formal complaint or gives information to the police that the other person is guilty of the offence and a prosecution follows, the complainant is liable to be dealt with under section 250 if the complaint is found to have proceeded oil no evidence. - - 2 in the criminal proceedings out of which this application arises, has been for many years a bone-setter in ahmedabad, and recently the complainant in such proceedings has also set up in ahmedabad as a bone-setter, and a good deal of rivalry and a great deal of ill-feeling exist between the two, so much so that the complainant has previously lodged complaints against the present petitioner. supposing you have a man a who has an excellent reason for thinking that..........at the instigation of dinshahji.8. the question arises then what is meant by a false complaint or false information in section 250. does it mean a complaint or : information which is false to the knowledge of the person giving it or does it include a complaint or information which though not known to be false is in fact false and not founded upon any evidence the section does not contain any words suggesting that the information must necessarily be false to the knowledge of the person giving it, and we have the analogy of section 211 of the indian penal code which deals with what is described in the marginal heading as false charges and contains the words ' knowing that there is no just or lawful ground for such proceeding or charge.' the definition of a false charge under section 211.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an application to us in revision to review an order of the Sessions Judge of Ahmedabad made in the following circumstances. It appears that the present applicant, who was accused No. 2 in the criminal proceedings out of which this application arises, has been for many years a bone-setter in Ahmedabad, and recently the complainant in such proceedings has also set up in Ahmedabad as a bone-setter, and a good deal of rivalry and a great deal of ill-feeling exist between the two, so much so that the complainant has previously lodged complaints against the present petitioner. On September 28, 1930, the complainant whilst working in his office was stabbed on the left buttock by accusedNo. 1. Accused No. 1 says that he had been a servant of the complainant and the complainant owed him money and that was the reason why he stabbed the complainant. The complainant denies that, and says that he had no quarrel with accused No. 1. The complainant was taken to the hospital, and whilst there, he gave certain information to the police. He said that by reason of the trade rivalry between himself and the petitioner, the petitioner had kept accusedNo. 1 as his servant and had got the complainant stabbed with a dagger at the hands of accused No. 1, and that in respect of that matter he had a complaint according to law. And then he said ; ' I have no dispute with accused No. 1, but accused No. 2 (that is the petitioner) has got this done by him.' That is to say, he alleged that accused No. 2 had instigated accused No. 1 in the affair of this stabbing. Thereupon the police started a prosecution against accused No. 1 for having stabbed the complainant, and against accused No. 2 for having abetted the stabbing. The learned Magistrate convicted accused No. 1, but as against accused No. 2 he held that there was absolutely no evidence of abetment. There was nothing to connect accused No. 2 with the offence, and he, therefore, discharged accused No. 2 and called upon the complainant to show cause why he should not be ordered to pay compensation to accused No. 2 under Section 250 of the Criminal Procedure Code. That was on May 25, and on June 1, he made an order under Section 250 directing the complainant to pay Rs. 51 as compensation to accused No. 2. From that order the complainant appealed and the Sessions Judge set aside the order of the Magistrate. He says in his judgment, after referring to the previous relations between the complainant and accused No. 2, ' Only two days ago, the accused No. 1 assaulted the appellant and it was very natural for him to conclude that he was acting at the instigation of accused No. 2.' He does not hold in his judgment that there was any definite evidence that accused No. 2 had instigated accused No. 1, but he holds, from the circumstances of the case, that there was enough reason to justify the petitioner in thinking that accused No. 2 had instigated the offence, and, therefore, there was no case for making an order under Section 250.

2. The first point taken by Mr. Coyajee for the petitioner-accused No. 2 is that in the appeal to the Sessions Judge no notice was given to the petitioner. Having regard to the wording ofSection 2,50 and Section 422 of the Criminal Procedure Code, I think we are bound to hold that notice to the accused, to whom the compensation was ordered to be paid, was not necessary ; but seeing that in cases under Section 250 the accused is the only person really interested in upholding the order, I think that in moat cases it is desirable that notice should be given to him. Apparently, the point was raised before the learned Sessions Judge, and in his discretion he directed that notice should not be served. I think myself that he exercised his discretion unwisely, but I should not be prepared in revision to set aside the order on that ground.

3. The point which really arises in this case is a point of some interest and it seems to me to be this. Supposing you have a man A who has an excellent reason for thinking that another man B feels strong enmity towards him. Some offence is then committed against A; it may be that he is assaulted in the street, or that his house is robbed at night, or that he receives a defamatory and anonymous post card, and he suspects that B is the originator of the offence. Well now, if he goes to the police he is clearly justified in saying to the police:' I have my suspicions against B and you had better direct your inquiry to seeing whether you can get evidence against B '. That no doubt would be justified, but if he lodges a formal complaint or gives information to the police that B is guilty of the offence and a prosecution follows and in the prosecution there is no evidence whatever to connect B with the offence, it seems to me that the prosecution must be taken to be both false and vexatious within the meaning of Section 250, People have no right to launch criminal prosecutions against their neighbours on mere suspicion. As far as I can see, in this case there was nothing to justify the complainant in making the charge of abetment against accused No. 2 except suspicion resulting from their past relationship, and though there may have been ground for the suspicion, that, in my opinion, was not enough. I think the information the petitioner gave to the police was more than information of suspicion, and that he did definitely say that accused No. 2 had instigated this offence. If he bad merely expressed his suspicions, I cannot imagine that the police would have instituted the prosecution at all against accused No. 2. They would first of all have made inquiries and endeavoured to get evidence, and when they were unable to get any evidence they would have taken no further steps.

4. In my view, therefore, the order of the learned Magistrate was right and the order reversing his decision by the Sessions Judge was wrong, and I think, therefore, that we ought to set aside that order of the Sessions Judge and restore the order of the learned Magistrate,

Broomfield, J.

5. This case raises rather an important question of principle in the application of Section 250 of the Criminal Procedure Code. The material part of the information which Kavasji gave to the police was this :-

By reason, of trade rivalry between myself and Dinshahji, Dinshahji kept Sujavalsha as his servant and has got me stabbed with a dagger by him. This is my complaint according to law. I. have no dispute with Sujavalsha. Dinshahji has got this done by him.

6. The Magistrate who tried the case found on the facts that Sujaval was not Dinshahji's servant. He found that there was no evidence whatever that Dinshahji had instigated Sujaval to attack and injure Kavasji and he found that the information given by Kavasji was false and vexatious, although he does not appear to have found that Kavasji knew the information to be false.

7. The Sessions Judge's view is that Kavasji had 'strong reasons to suspect' that accused No. 1 Sujaval was instigated by accused No.2 Dinshahji and that in view of the circumstances and the previous relations between the parties it was ' very natural' for him to conclude that Sujaval was acting at the instigation of Dinshahji.

8. The question arises then what is meant by a false complaint or false information in Section 250. Does it mean a complaint or : information which is false to the knowledge of the person giving it or does it include a complaint or information which though not known to be false is in fact false and not founded upon any evidence The section does not contain any words suggesting that the information must necessarily be false to the knowledge of the person giving it, and we have the analogy of Section 211 of the Indian Penal Code which deals with what is described in the marginal heading as false charges and contains the words ' knowing that there is no just or lawful ground for such proceeding or charge.' The definition of a false charge under Section 211 appears, therefore, to include a charge not known to be false but for which there is no just or lawful ground. I think the proper view is that a charge may be held to be false within the meaning of Section 250 of the Criminal Procedure Code also even though it is not false to the knowledge of the person making it in the sense that he has strong grounds of suspicion for holding it to be true. On the other hand, of course, information which is bona fide believed to be true could hardly be regarded as frivolous or vexatious information. So that what we have to decide here is whether information which is based merely upon suspicion and not upon evidence can be regarded as information given bona fide. The present case appears to me to be one of some little difficulty, because it is clear that if the information which Kavasji gave had been just a little differently phrased it would have been perfectly justifiable information and could not have given rise to proceedings under Section 250. If instead of asserting a fact he had said that he had reason to believe or reason to suspect that by reason of trade rivalry and so on Sujaval had been instigated by Dinshahji, then that would have been information which he was perfectly entitled to give. But of course in that case the police would probably not have taken the action they did and Dinshahji would not have been arrested on an un-founded charge. On the whole, therefore, I agree with the learned Chief Justice that information which is merely based upon suspicion, if it be expressed as a positive accusation, ought to be regarded as both false and vexatious within the meaning of Section 250.

9. That being so, I agree with the order which the learned Chief Justice proposes to make.


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