Skip to content


Laxman Zujya Bhatkar Patil Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 19 of 1960
Judge
Reported in(1960)62BOMLR818
AppellantLaxman Zujya Bhatkar Patil
RespondentThe State of Bombay
DispositionAppeal Dismissed
Excerpt:
.....was bad in law and that for that reason alone the order of conviction and sentence passed by the learned magistrate and confirmed by the learned sessions judge should be set aside. ..these two sections, it will appear, clearly refer to cases in which a complaint is necessary by a person authorised by the state government or by the public servant concerned, as the case may be, on which alone the court can take cognizance of an offence. if that is the correct view of the law on this question, in my opinion, the sanction granted in this particular case, though going a little beyond the limits of the section itself, is perfectly valid in so far as the district magistrate after applying his mind to the papers produced before him thought it proper to sanction the prosecution of the accused...........given and that, therefore, the entire proceedings were bad in law, cannot be sustained. the learnedmagistrate, in my judgment, did take cognizance of the offence under section 4 of the ex-communication act with which the accused were charged, with the previous sanction of the district magistrate.5. it was next contended by mr. chari, the learned counsel for the accused, that both the lower courts were in error in holding that, by the proclamation that the accused had issued to the members of their community, they had caused loss to the property of the complainant. he contended that so long as the complainant had no right whatever to call upon any member of his community to help him in plying his boat, merely proclaiming to those members even at the instance of the accused that.....
Judgment:

S.M. Shah, J.

1. This application has been filed by the accused against an order passed by the learned Sessions Judge, Thana, dismissing their revision application directed against the order of conviction and sentence passed by the learned Judicial Magistrate at Bassein in a case in which they were charged for an offence under Section 4 of the Bombay Prevention of Ex-Communication Act, 1949.

2. The case for the prosecution was that the community of Christian Kolis of Bassein, to which both the complainant and the accused belonged, held a meeting on February 10, 1955, in which they asked him to tender an apology to one Jebubai in respect of an alleged assault. The complainant, however, did not do so and, therefore, he together with the members of his family was excommunicated and the ex-communication was thereafter communicated by beat of drum to the members of the community. It was alleged that this ex-communication was also communicated to the Christian Kolis in other villages. The complainant Anton and others then approached the authorities in the matter. The District Magistrate at Thana on their application for sanction to prosecute the accused passed an order authorising them to prosecute the accused. In consequence of this sanction a complaint was filed in the Court of the Judicial Magistrate at Bassein by the police constable Kabal on August, 10, 1955. The case was thereafter transferred to the Borivli Court. After the extension of the Greater Bombay limits, however, the case went back again to the Bassein Court and a de novo trial was held there. The learned Magistrate after considering the evidence led by both the sides came to the conclusion that the sanction was proper and that the offence charged against the accused was proved. he, therefore, convicted them and sentenced each of them to pay a fine of Rs. 100 or in default to suffer simple imprisonment for two weeks. Against this order, the accused filed a revision application in the Sessions Court at Thana. The learned Sessions Judge after hearing the arguments advanced on both the sides agreed with the conclusions reached by the learned Magistrate, confirmed the order of conviction and sentence passed by him and dismissed the application. It is against this order of the learned Sessions Judge dismissing the application of the accused that the present revision application has been filed in this Court.

3. In support of this application, it was firstly contended by Mr. Chari, the learned Counsel for the applicants, that the prosecution in this case was not launched by the persons to whom the sanction to prosecute was granted by the District Magistrate, but by a police constable to whom no sanction to prosecute the accused was ever granted. Accordingly, he submitted that the prosecution was bad in law and that for that reason alone the order of conviction and sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge should be set aside. For the purpose of this argument, therefore, it is necessary to refer to Section 6 of the Bombay Prevention of Ex-Communication Act, 1949, which deals with the according of such sanction. That section reads as follows:-

No Court shall take cognizance of an offence punishable under Section 4,-

(a) ...

(b) without the previous sanction of the Provincial Government or any officer authorised by the Provincial Government not below the rank of the Commissioner of Police in Greater Bombay and the District Magistrate elsewhere.

It may be noted that the section only contemplates a sanction of the authority mentioned therein in order to enable a Court to take cognizance of an offence. It does not say that the Court shall take cognizance of an offence tinder Section 4 of the Act only upon a complaint filed by some one authorised either by the Provincial Government or by the Commissioner of Police in Greater Bombay or the District Magistrate elsewhere. In order to distinguish a sanction to prosecute by a certain authority from a sanction to enable a Court to take cognizance of an offence, it will be, helpful to refer to Section 196 of the Criminal Procedure Code. That section runs as follows:-

No Court shall take cognizance of any offence punishable under Chapter VI...un- ' less upon complaint made by order of, or under authority from, the State Government in this behalf.

Reference in this connection may also be made to Section 195 of the Criminal Procedure Code. Sub-section (1) of that section runs as follows:-

(1) No Court shall take cognizance-(a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;....

These two sections, it will appear, clearly refer to cases in which a complaint is necessary by a person authorised by the State Government or by the public servant concerned, as the case may be, on which alone the Court can take cognizance of an offence. Turning to Section 6 of the Bombay Prevention of Ex-Communication Act, however, it is clear that there is no reference to any complaint by any person which should be made in order that the Court may take cognizance of an offence under that Act. All that it requires is a previous sanction of the Provincial Government or the other authority mentioned in that section to the prosecution of the offender in order that the Court can take cognizance of an offence. Accordingly, the complaint which is required to be made under Sections 195 and 196 of the Criminal Procedure Code on which a Court can take cognizance of an offence, to my mind, is not the same thing as sanction to prosecute upon which alone a Court can take cognizance of an offence in respect of which the sanction is granted. In order to further clarify this distinction between 'taking cognizance of an offence with the previous sanction of the Provincial Government' as contemplated by Section 6 of the Ex-Communication Act and 'taking cognizance upon a complaint' referred to in Sections 195 and 196 of the Criminal Procedure Code, a reference may be made to a decision of our own Court in In reMowjee (1905) 8 Bom. LR. 32. That was a case in which one Mowjee Liladhar charged one Tullocksey Thakarsey with criminal breach of trust in respect of hundis alleged to have been given.to him by the complainant Mowjee as master of Tullocksey and charged Likhawdas with abetment of the said alleged offence. The second Presidency Magistrate, who tried the case, came to the conclusion that the charges were false and made out of malice and were supported by Mowjee and a witness Murarji by perjury. Thereafter the learned Magistrate sanctioned the prosecution of Mowjee for offences under Sections 211 and 195 of the Indian Penal Code and of Murarji under Section 195 of the Indian Penal Code, the perjury alleged being their evidence in the case to the effect that Tullocksey was employed as a Moonim on a salary of Rs. 600 a year. Besides according the sanction as above, the second Presidency Magistrate ordered Mowjee and Murarji to be sent to the Court of the Fourth Presidency Magistrate for trial on the aforesaid charges and ordered them to give bail for their attendance in the said Court of the Fourth Presidency Magistrate. An application was thereafter made to the High Court to revoke the sanction given by the second Presidency Magistrate for the prosecution of the accused Mowjee and Murarji. It was contended on behalf of the accused that the sanction accorded by the second Presidency Magistrate was illegal, because it did not specify the person who was allowed to prosecute the accused. In support of that contention two cases of the Calcutta High Court were cited in which it was held that the sanction tinder Section 195 of the Criminal Procedure Code must name the person to whom the sanction to prosecute was accorded and could only be used by the complainant specified therein. The learned Judges of our High Court, however, pointed out that the sanction contemplated by Section 195 of the Criminal Procedure Code (as it then stood) was not a sanction to any particular person to prosecute but a sanction to the Criminal Courts concerned to take cognizance of certain offences specified in that section of which the criminal Courts could not take cognizance except with the previous sanction or the complaint described in that section. In course of the judgment Aston J. observed as follows (p. 35) :-

The sanction contemplated in Section 195, of the Criminal Procedure Code, whilst it is in force, restores to the Criminal Courts a jurisdiction of which the same section deprives them in respect of specified offences and need not even name the accused person.

4. It may be noted that the present Section 195 which was introduced in the Code by the Amendment Act of 1923 does not refer to any Court taking cognizance of an offence except with the previous sanction of any particular authority. But the old Section 195 did refer to such previous sanction being necessary before the Court could take cognizance of certain offences, and that is how the decision in the case cited above becomes relevant and useful for the purpose of deciding the question before me. As observed above, Section 6 of the Ex-Communication Act does not refer to the previous sanction to prosecute being given to any particular individual so that such individual alone can file a complaint on the basis of which the Court may take cognizance of the offence. All that the section requires is a previous sanction to the prosecution, that is to say, in the words of the decision in the above Bombay case, 'sanction to the criminal Courts concerned to take cognizance of certain offences specified in the section'. In that view of the matter, although the sanction in the present case directed certain five persons to prosecute the accused, it appears that in. giving such sanction the learned District Magistrate had really gone beyond what he was required to do under Section 6 of the Bombay Prevention of Ex-Communication Act, 1949. It was not necessary for him to authorise any one or more persons to file a complaint to prosecute the accused in regard to the offence under theEx-Communication Act. All that was necessary for him to do, on the facts constituting the offence being brought to his notice, was to sanction the prosecution of those persons who were alleged to be guilty of the offence, whereupon the Court would be entitled to take cognizance of the offence irrespective of whether the complaint was filed by the person aggrieved or by any other person whatever. under criminal law it is not necessary that a complaint should be filed only by the person aggrieved or against whom an offence is committed, except, of course, in certain cases. A complaint may be made, even by a person who comes to know of the commission of an offence. Accordingly, once a sanction for the prosecution of a person charged with an offence as required by the Ex-Communication Act is granted by the District Magistrate in general terms without directing it to any particular individual, the Magistrate concerned would be entitled to take cognizance of theoffence, regardless of the complaint being filed by the person aggrieved or by any other person whatsoever. If that is the correct view of the law on this question, in my opinion, the sanction granted in this particular case, though going a little beyond the limits of the section itself, is perfectly valid in so far as the District Magistrate after applying his mind to the papers produced before him thought it proper to sanction the prosecution of the accused. It is true that none of the persons who were authorised by the District Magistrate to prosecute the accused had filed the complaint and it was a police constable who had filed it before the learned Magistrate. In so far as, however, the complaint recited that the sanction was accorded by the District Magistrate for the prosecution of the accused for the offence under Section 4 of the Ex-Communication Act, the learned Magistrate was perfectly entitled to take cognizance of the offence with which the accused were charged. In my opinion, therefore, the contention raised by Mr. Chari, the learned Counsel for the accused, that the complaint was not properly filed or that the sanction was not properly given and that, therefore, the entire proceedings were bad in law, cannot be sustained. The learnedMagistrate, in my judgment, did take cognizance of the offence under Section 4 of the Ex-Communication Act with which the accused were charged, with the previous sanction of the District Magistrate.

5. It was next contended by Mr. Chari, the learned Counsel for the accused, that both the lower Courts were in error in holding that, by the proclamation that the accused had issued to the members of their community, they had caused loss to the property of the complainant. He contended that so long as the complainant had no right whatever to call upon any member of his community to help him in plying his boat, merely proclaiming to those members even at the instance of the accused that none of them should agree to work or work on the boat of the complainant, did not really cause any loss to the property of the complainant. As a matter of fact, if at all the complainant could make a grievance on account of the act of the accused, it could not be with regard to any loss to his property, but with regard to the carrying on of his trade. He was evidently plying his own boat and for that purpose he used to hire the labour from amongst the members of his community. If at all, therefore, Mr. Chari contended, there was any damage caused to the complainant by reason of the action of the accused, it was not to his property but to his business. But he urged that inasmuch as the complainant had no legal right to compel any member of his community to work on his boat even for wages, he could not have any grievance and could not complain of any in-fringement of any legal right if the accused proclaimed to the members of their community that they should not work on the complainant's boat. Prima facie, the argument seems to be plausible. But, in my opinion, it is not necessary to discuss the matter from that aspect at all. Both the Courts, on the evidence that was recorded, have found that the resolution that was passed by the panchas of the community was one of unqualified ex-communication of the complainant and the members of his family and the word 'ex-communication' itself is defined in the Ex-Communication Act to mean expulsion of a person from any community of which he is a member depriving him of rights and privileges which are legally enforceable by a suit of civil nature by him or on his behalf as such member. Section 3 of the Act provides that notwithstanding anything contained in any law, custom or usage for the time being in force, to the contrary, no ex-communication of a member of any community shall be valid and shall be of any effect. The combined effect of these two- of the definition of the word 'ex-communication' and the provisions of Section 3, in my opinion, is that what is prohibited by the Act is expulsion of a member of a community from the community itself which, unless otherwise expressed, would carry with it the deprivation of all legal rights and privileges to which the member expelled was entitled as such. Accordingly, where a member of a community is ex-communicated without any reservation by a resolution of the community or a resolution of those in authority, under Section 3 itself such excommunication is rendered invalid and ineffective for the obvious reason that such ex-communication amounts to the member expelled being deprived of his status as a member of the community which is undoubtedly a matter of legal right and he is also deprived of all the legal rights and privileges to which he was entitled as such member particularly in relation to the property of the community, if any, and attendance at the meetings of the community. In this view of the matter and in view of the fact that both the Courts have found on evidence that the accused had passed a resolution ex-communicating the complainant and the members of his family, it is abundantly clear that the accused did commit an offence under Section 4 of the Act.

6. Even apart from this resolution of ex-communication which may for the moment be construed to mean as not amounting to deprivation of any rights or privileges of the complainant as a member of the community, the evidence of the complainant is that after the resolution was passed the accused sent out a proclamation inter alia intimating to the members of the community that the complainant and the members of his family should not be invited to attend any meeting of the community. This evidence was not challenged by the accused in his cross-examination. Of course, the defence of the accused is that they never held any meeting nor did they ever pass any such resolution, nor did they send out any proclamation as alleged by the complainant. But the evidence of the complainant clearly shows that the members of the community were informed by the proclamation among other things that the complainant should not be invited to attend the meetings of the community. Now, this was an act on the part of the accused which undoubtedly amounted to deprivation of the complainant's legal right as a member of the community, because in the eye of law all the members of a community are by reason of their very status as members of that community entitled to attend and vote at all the meetings of that community. It is a precious right which is capable of being enforced by a suit of civil nature, and by proclaiming to the members of the community that the complainant should not be invited to attend the meetings of the community, the accused could well be said to have ex-communicated the complainant at least to the extent that he had been deprived of his valuable civil right to attend and vote at the meetings of the community. From this point of view, too, it must be held that accused were definitely guilty of the offence with which they were charged, though not for the reasons set out by the learned Magistrate as also by the learned Sessions Judge. There was no question of any right to property being infringed by the action of the accused. The complainant did not have any property in respect of which he complained he had incurred any loss on account of the action of the accused. In course of his evidence he stated that, by reason of the accused having proclaimed to the members of his community that none of them should work on his boat, his business was ruined. But as stated earlier, it is not necessary to go into the question as to whether the complainant's right to carry on his trade or business was in any way affected by the proclamation issued by the accused as aforesaid. Accordingly, either because the accused passed a resolution ex-communicating the complainant and the members of his family or because the accused by the proclamation announced to the members of their community that the complainant should not be invited to attend the meetings of the community and thereby ex-communicated the complainant, the accused did commit an offence under Section 4 of the Bombay Prevention ofEx-Communication Act. The order of conviction and sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge was, therefore, perfectly justified. T see no reason to interfere with that order.

7. The result is that the application is dismissed and the rule is discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //