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Emperor Vs. Dagdi Dagdya Bhil - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 319 of 1927
Judge
Reported in(1928)30BOMLR342
AppellantEmperor
RespondentDagdi Dagdya Bhil
Excerpt:
.....17. the public prosecutor withdrew the prosecution, which was allowed under section 494(6) of the criminal procedure code, for the offence under section 193 of the indian penal code, on july 29, 1927.;meanwhile, on july 25, 1927, the district magistrate filed a complaint against the accused charging her with an offence under section 182 of the indian penal code, for furnishing false information to a public servant in her application of august 13, 1925. the accused contended that the prosecution was barred under section 403 of the criminal procedure code, by reason of her acquittal in the first case :-;overruling the contention, (1) that the statements made on august 13 and september 5 were a series of acts so connected together as to form 'the same transaction', because of the..........taken permitted the prosecution to be withdrawn and acquitted the accused under section 494(b), criminal procedure code. meanwhile, on july 25, 1927, a complaint had been made in the same court by the district magistrate against the petitioner., charging her with having furnished false information to a public servant in the application that the petitioner made on august 13, 1925, so that she had committed an offence under section 182, indian penal code. objection was raised before the trying magistrate that this prosecution was barred under section 403, criminal procedure code, because of the acquittal of the accused in the other case. the magistrate held that the acquittal under section 494(6), criminal procedure code, did not operate as a bar to the further prosecution of the.....
Judgment:

Fawcett, J.

1. The main facts in this case are that the accused Dagdi who is the petitioner before us, on August 13, 1925, made an application to the District Magistrate containing allegations of ill-treatment by the police and certain police patils in the course of a police inquiry. The District Magistrate examined her on this application, and she then stated that she could not give the names of the police-officers by whom she had been beaten for certain reasons. Subsequently, on September 5, 1925, she made a statement to a Sub-Divisional Magistrate, in which she alleged that a certain Sub-Inspector and a certain Head Constable had beaten her in this inquiry. A complaint was made ' against her at the instance of the Sub-Divisional Magistrate under Section 193, Indian Penal Code, on the ground that in the application and her statement of August 13, 1925, she said she could not give the names of those that had beaten and tortured her, whereas she had mentioned them in the statement she made before the Sub-Divisional Magistrate on September 5. A charge was framed against the accused in that case, which first of all charged her with having made two contradictory statements as mentioned above on August 13, and on September 5, 1925, one of which statements she either believed to be false or did not believe to be true. The second head of the charge was that on September 5, and subsequently on September 17, she stated that the police beat and otherwise maltreated her, which statement she knew to be false or did not believe to be true. That was on February 2, 1927. But on July 5, 1927, the Public Prosecutor, East Khandesh, under instructions from the District Magistrate requested permission to withdraw from the prosecution of the accused for an offence under Section 193, Indian Penal Code. On July 29, the First Class Magistrate in whose Court those proceedings had been taken permitted the prosecution to be withdrawn and acquitted the accused under Section 494(b), Criminal Procedure Code. Meanwhile, on July 25, 1927, a complaint had been made in the same Court by the District Magistrate against the petitioner., charging her with having furnished false information to a public servant in the application that the petitioner made on August 13, 1925, so that she had committed an offence under Section 182, Indian Penal Code. Objection was raised before the trying Magistrate that this prosecution was barred under Section 403, Criminal Procedure Code, because of the acquittal of the accused in the other case. The Magistrate held that the acquittal under Section 494(6), Criminal Procedure Code, did not operate as a bar to the further prosecution of the accused for an alleged offence under Section 182, Indian Penal Code. The petitioner now comes to us in revision and asks that this order should be reversed and that the charge under Section 182 should not be proceeded with.

2. We have heard very full arguments in the case, and a large number of rulings of different High Courts as to the applicability of various parts of Section 403, Criminal Procedure Code, have been cited to us. I do not think it necessary to discuss those cases, because I do not think that to do so would be very profitable. The main question that evolved from the arguments is, whether the present case can be held to fall under Sub-section (1) of Section 235, Criminal Procedure Code or whether this is a case which falls under Sub-section (2) of Section 235. In saying this, I reject the contention of the Government Pleader that a case under Sub-section (2) of Section 235 can still be one which is not covered by the main provisions of Section 403, because I agree with what was said in Mahadeogir v. Emperor (1912) 14 Cr. L.J. 135 that (p. 187): 'The limitation of this exception (in sub-section (1) of Section 403) to sub-section (1)(of s,235 necessarily involves the exclusion of cases falling under the other sub-sections of Section 235.' Also I exclude the contention of Mr. Kane for the petitioner that the acts might fall under Section 236, Criminal Procedure Code. Here there can, in my opinion, be no question of any doubt arising upon the single act or series of acts involved in the transaction that forms the subject matter of the two prosecutions as to which of several offences the facts that can be proved constitute, and the case is clearly different to one of the kind mentioned in ill. (a) to that section.

3. Therefore, taking the issue to be what I have already stated, namely, whether the case properly falls under the Sub-section (1) or whether it falls rather under Sub-section (2) of Section 235, Criminal Procedure Code, I think the question is a fairly simple one. First of all, in the prosecution under Section 193, Indian Penal Code, clearly more than one act were involved. There were two statements made by the accused, one on August 13, and the other on September 5, 1925, and those statements were connected together so as to form 'the same transaction', because of the continuity of purpose in regard to the accusation that the police and others had maltreated the accused. Therefore, the case is one where there can be said to have been a series of acts so connected together as to form the same transaction, within the meaning of Sub-section (1) of Section 235, Criminal Procedure Code. Can it be said that in that series of acts more offences than one were committed by the same person, assuming that the accusations against that person in the two prosecutions are true? In my opinion the answer is in the affirmative. There is, first of all, the accusation that the application made by the petitioner on August 13 gave false information to a public servant falling under Section 182, Indian Penal Code. That is a definite offence distinct from any offence that may be found to have been committed, when you compare the statement of August 13 with any subsequent statement that the accused may have made. She did, however, make a subsequent statement, and as a result the Crown alleged that she had committed an offence under Section 193, Indian Penal Code, because her subsequent statement contained a statement which was entirely inconsistent with the statement she had made on August. 13. To my mind, that is an entirely distinct offence to the offence of having furnished false information by making an application and a connected statement on August 13. Thirdly, the prosecution alleged, as is shown by the charge in the first trial that I have already mentioned, that the second statement of Saptember 5, 1925, was a false statement, deliberately false to the knowledge or belief of the petitioner, and that she had thereby committed an offence under Section 1933 Indian Penal Code. Here, again, that is, in my opinion, a distinct offence from the offence of hawing furnished false information to a public servant by making the application of August 13. There might be possibility of doubt whether it is a distinct offence from the alleged offence under Section 193, Indian Penal Code, in regard to the contradictory statements of September 5 and August 13; but at any rate no such doubt can arise in regard to an accusation that she committed perjury by making a statement on September 5 and an accusation that she furnished false information by making an application on August 13. Therefore, I am clearly of opinion that the wording of Sub-section (1) of Section 235, Criminal Procedure Code, does cover the present case, and I am confirmed in that opinion by ill. (e) to Section 235. This runs :-

With intent to cause injury to B, A institutes a criminal proceeding against him, knowing that there is no just or lawful ground for such proceeding; and also falsely accuses B of having committed an offence, knowing that there is no just or lawful ground for such charges. A may be separately charged with, and convicted of, two offences under Section 211 of the Indian Penal Code.

4. The heading shows that that is an illustration to Sub-section (1) of Section 235. The illustration does not state whether the institution of criminal proceedings and the false accusation were on the same day or on different dates. But in either case the illustration supports the argument I have put forward. If they were on different dates, then it is analogous to the present case. If they were on the same day, then a fortiori the present case would be one falling under Sub-section (1) of Section 235. On the other hand, it seems to me that this is not a case of the kind contemplated by Sub-section (2) of Section 235, Criminal Procedure Code, where you have a totality of acts, some of which bring the case under one definition of an offence and some under another. I quite admit that you can get cases which are very much on the border line, and where it is difficult to say whether the case falls under Sub-section (1) or Sub-section (2) of Section 235. But I am clearly of opinion, for the reasons I have given, that this case falls under Sub-section (1) of Section 235, Criminal Procedure Code. My reasons are no doubt different from those which the Magistrate has given for his order, viz., that the case falls under Sub-section (4) of Section 403; but the Government Pleader has not supported the order under that Sub-section (4) and there are difficulties in the way of its being held applicable. Though I do not agree with his reasons, yet I hold that his order in the result is right. Therefore, I would dismiss this application.


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