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In Re: Kankanampati Nagayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1962CriLJ719
AppellantIn Re: Kankanampati Nagayya and ors.
Excerpt:
.....of a non-cognizable offence can as well be- taken under section 190(1)(b) on the basis of the police report in the samiswsy as in cognizable cases. clear that lie clear as well that cognisance of non-cognizable cases also- on .police report. the magistrate therefore did not act in accordance with law when he adopted the said procedure, it was obligatory on him to follow the procedure in section 208. it is nevertheless argued that any irregularity, however material in procedure cannot nullify or vitiate the proceedings, unless some prejudice is shown and since the magistrate had examined most of the witnesses, it cannot be said that any prejudice has been caused to the accused or there has been any failure of justice. failure of justice does not merely mean an erroneous- decision...........on him to follow the procedure which is prescribed for cases other than those instituted on a police report. the procedure actually followed being thus in contravention of the provisions of law, the proceedings of the learned magistrate are vitiated and liable to the quashed. the last ground taken is that since a-3 had stated that he was an eyewitness, in the statement recorded by the magistrate -under section 164, cr.pc and he said so in connection with an offence of murder triable by the sessions judge, the court could not have taken cognizance of the offence under section 211 read with section 109, ipc brought against him in the absence of a complaint of the- court under the mandatory provisions of section 195(1)(b) cr.pc5. i take up the first point as first. section 211 ipc.....
Judgment:
ORDER

Kumarayya, J.

1. This is a petition to quash the committal order which was made by the Judicial Second Class Magistrate, Sattenapalli in the following circumstances.

2. The accused, three in number, are residents of Dechavaram, village, a village said to be predominantly faction-ridden. P.Ws. 5'to 11 belong to one party nnd the accused to the other party. On 30-9-1959, Kankanampati Seetharamamma, wife of A-l met her death by, drowning in a well. According to the prosecution, W day the deceased and her brother-in-law fell out on' some matter in their field, and, as a result, while returning' home at about 10 A.M. she jumped into a well to commit suicide. Dandakoti Subba Rao, who happened to see her jumping into the well, raised an alarm immediately. Thereupon some persons came running to the well, but it took sometime for them to take her out of the well, and by that time her life had become extinct. A-l and A-2 were made aware of the facts leading to the death of the deceased. They were convinced and even sent messages to the relatives through certain persons to the effect that the deceased had committed suicide by falling into the well. But then it occurred to them that this was the opportune moment to wreak vengeance on the opposite factionists. The panchayat elections were brewing. It was high time that some of the important members of the opposite faction are arrested. They had also fresh in mind that P.W. 10 and his partisans had tried to implicate them and others for an offence of murder during the investigation of the police when P.W. l's wife had committed suicide. A-2 therefore instigated A-l and A-3 also told them that he will be an eye-witness. At the instigation of both, A-l made a report to the Village. Munsif falsely charging P.Ws. 5 to 11 that they forcibly threw the deceased into the well while she was returning from her field. This is the prosecution version of the case.

3. The Village Munsif, on the information given by A-l, sent the reports to the police and the Magistrate. The police investigated into the matter and found that the deceased had committed suicide, and that the accused had falsely charged P.Ws. 5 to 11 with ulterior motive. They (the police) referred the charge as false and alter investigation into the offence of Section 211 I. P. C., which was made without the order of the Magistrate (probably on the assumption that an express order was unnecessary) lodged a report for an offence Under Section 211 IPC against A-l and Under Section 211 read with Section 109 IPC against A-2 and A-3. On this report, the Magistrate took cognizance of the case and started proceedings Under Section 207A Cr.PC The accused were furnished with copies of the documents referred to in Section 173 (4) Cr.PC Eight witnesses were examined on behalf of the prosecution. The learned Magistrate, on the basis of the material on record, namely, the evidence (recorded) of some of the prosecution witnesses and the statements of the witnesses recorded Under Sections 162 and 164 Cr.PC came to the conclusion that the case should be tried by the Sessions Court and committed the accused accordingly. It is against this order the accused have come in revision to this Court.

4. The learned Counsel for the petitioners has attacked the committal order on more than one ground. The first ground taken is that the offence with which the accused were charged only fell within the first part of Section 211 IPC and was therefore not exclusively triable by the Sessions Court and the order of committal on that ground is bad in law. The next ground is that inasmuch as it was a non-cognizable offence the report filed by the prosecution was only in the nature of a complaint and even if at all the magistrate could take cognizance of the case on the basis of such report, it was obligatory on him to follow the procedure which is prescribed for cases other than those instituted on a police report. The procedure actually followed being thus in contravention of the provisions of law, the proceedings of the learned Magistrate are vitiated and liable to the quashed. The last ground taken is that since A-3 had stated that he was an eyewitness, in the statement recorded by the Magistrate -Under Section 164, Cr.PC and he said so in connection with an offence of murder triable by the sessions Judge, the Court could not have taken cognizance of the offence Under Section 211 read with Section 109, IPC brought against him in the absence of a complaint of the- Court under the mandatory provisions of Section 195(1)(b) Cr.PC

5. I take up the first point as first. Section 211 IPC reads thus :

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

and if such criminal proceeding be instituted en a false charge of an' offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The above Section evidently consists of two parts. According to Schedule II of the Code of Criminal Procedure, the offence only under the second part is exclusively triable by the Sessions Court. So then the order of committal cannot be supported unless the offence complained of comes within the second part. The second part inter alia contemplates the institution of the criminal proceeding on a false charge of an offence punishable with death or imprisonment of the description stated. Of course, the word 'such' qualifying 'criminal proceeding', used in that part of the Section must have reference to the first part also. The first part speaks of institution of criminal proceeding and making a false charge disjunctively, but either of them should be in relation to the commission of an offence as distinct from the offence of a particular description in the second part.

The Code of Criminal Procedure does not define what constitutes 'making of a charge' and what amounts to the 'institution of criminal proceedings'. It must therefore follow that these expressions have been used their ordinary or popularly understood meaning and not in any restricted or technical sense. Thus whereas 'making a charge' may mean and imply false accusation with regard to the commission of an offence made with-a view to take action against the person complained of an authority bound by law to move in the matter, the causation and institution of criminal proceeding may also include the setting of criminal law thus in motion. Bu' the learned Counsel for' the1 appellant-petitioners; on tends that the two expressions relate to distinct sphere; and stages and that criminal proceeding cannot be deemed to be instituted unless it comes before the Magistrate a Court of law. If it goes no further than a police enquiry, it will not be deemed to be the causation or the institution of a criminal proceeding. So then, if it is i false accusation or charge within the meaning of the first part of Section 211, unless it comes before (hi Court it will not be institution of criminal proceeding. Hi any rate having .regard to the further urged that at f criminal proceeding, on a false charge the criminal proceeding contemplated by that expression must be only the proceeding in a Court of law. It is difficult to accede to either of these contentions.

6. There appears to be some conflict of opinion i the High Courts of India in relation to the first point The Bombay High Court in Emperor V. Karsan Jesang, AW, 1941 Bom 414 observed thus :

No doubt, the criminal law may be set in motion toy giving information to the police of a cognizable offence; but unless proceedings are instituted in a Court of law, it is not in my opinion correct to say that criminal proceedings have been instituted ....

If the matter gets into Court, and the man is put on his trial on a false charge, that is a much more serious matter. In my opinion, if the case gets no further than a police enquiry, it falls within the first part of Section 211 Penal Code ....

The learned Judges pointed out to the conflict of authority on this point and did not approve the view taken in Karim Buksh v. Queen Empress IL R 17 Cal 574 (1-B), wherein it was held that if a false charge was made of an offence punishable with death or transportation for life, and even if the matter went no further than a police enquiry, nevertheless it fell within the second part of Section 211, because inducing the police to institute the inquiry was instituting criminal proceedings. Similarly, in Sultan Ahmad v. Emperor A.I.R. 1931 Nag 134 a Full Bench of the Nagpur High Court, held that investigation by police is not a criminal proceeding against any person and, therefore, setting the criminal law in motion by making a charge to the police of a cognizable offence against a person does not amount to institution of criminal proceedings against that person within the meaning of the second part of Section 211 I. P, C. The same was the view taken in King v. Ma Ban Gyi A.I.R. 1938 Rang 397 and Queen Empress v. Bisheshar ILR 16 All 124.

In Sessions judge of Tinnevelly Division v. Sivan Chetty ILR 32 Mad 258 at p. 262 (FB), the Madras High Court took a different. view and it approved of the view taken in ILR 17 Cal 574.at p. 578 (FB), and held that a man who sets the criminal law in motion by making a false charge before the police institutes criminal proceedings within the meaning of that Section. It is significant to note that there are two different expressions used both in the first and in the second part of the Section and It may, therefore, with great justification, be argued that both the expressions were not intended to be co-extensive in meaning. The argument of this kind was advanced in the Calcutta case, referred to above, and the learned Judges explained in vivid terms the nature of both expressions and the differences between them. The observations by Wilson, J., in ILR 17 Cal 574 at p. 578 (FB), are to the following effect :

And, hence the argument arises that the Legislature must have meant different things when it spoke of 'instituting proceedings' and 'making a charge' and that only what fell within the former phrase was within the latter part of the Section. I agree with this reasoning in one sense and not In another. I agree that we must take it that the Legislature did not regard the two phrases as coextensive in meaning, but considered that they were, or might be, cases to which one would apply and not the other. . But I do not think we are to suppose that the Legislature meant the phrases to be mutually exclusive In meaning, so that the instituting of criminal proceedings must be by something which is not a charge, and J charge must be something which is not the institution of criminal proceedings. This cannot, I think, be for two reasons. First, because there is no mode by which a private, accuser can institute criminal proceedings except by making a charge; and if he does not do it by the charge, he never does it at all, to whatever length the proceedings may go. And secondly, because the last part of the Section speaks of 'proceedings instituted on a false charge.

It is not difficult to see various classes of cases which either do, or probably may, fall under one of the expressions used and not under the other, and which the Legislature may well have had in view when it used both. Thus proceedings to compel any one to give security by reason of an anticipated breach of peace Under Section 107 or because he is concealing himself or has no ostensible means of subsistence Under Section 109 of the Procedure Code, are apparently criminal proceedings, but they do not necessarily ' involve a charge of any offence. On the other hand, a charge to the police of a non-cognizable offence may very possibly be a charge within the meaning of the section, but could hardly be called the institution of criminal proceedings. So, a charge made to a Judge of a Civil Court, or to public officers of other kinds in order to obtain sanction to prosecute, ;may well be a charge, but is not the institution of criminal proceedings.

On these grounds it was observed that a man who sets the criminal law in .motion by making a false charge to the police of a cognizable offence, institutes criminal proceedings within the meaning of Section 211 of the Penal Code and that if the offence falls within the description in the latter part of the section, he is liable to the punishment there provided. This view was followed subsequently in Calcutta, Madras, Oudh, Patna, Peshawar and Sind cases. I respectfully agree with this view, in my opinion, the fact that the offence in the second part of the Section has been made, as a graver offence is attributable only to the serious nature of the offence with regard to which on a false charge the criminal proceeding has been instituted, and not also to the fact that in the language of Baguley, J. in A.I.R. 1938 Rang 397 the person making a charge

owing to his greater skill has succeeded in getting the police to arrest his enemy and place him before the Court.

So then, if a false charge is made before the Village Munsif or Police with regard to commission of an offence of the description in Part II of Section 211 IPC with intent and knowledge as stated in the section, even though the person charged may not be arrested or the matter may not go further than the police enquiry, Section 211, Part 2, in view of the gravity of the offence, will apply because setting the Criminal machinery thus in motion, is the institution of a criminal proceeding on a false charge of an offence of the description in Part II of Section 211. That is indeed the view of the Madras High Court also, which follows the view taken by the Full Bench of the Calcutta High Court. this Court has not so far taken a different view. In that case, according to the dictum in Subbarayudu v. State : AIR1955AP87 the said view of the Full Bench of the Madras High Court must be followed by this Court. In this premises it is clear that in making a false charge or accusation before the Village Munsif to the effect that P.Ws. 5 to II had committed the murder of his wife, A-l had in fact- instituted criminal proceeding on a false charge within the meaning of the second part of Section 211 I. P, c. It follows, therefore, that having regard to the prosecution story, it was a case, exclusively triable by a Sessions Court and the Magistrate taking cognizance of such an offence on a report of the Police could very well on seeing sufficient founds, commit the case to Sessions; The first 'plea therefore fails.... ;

7. I then take up, the second ground urged which in my opinion is not without substance. It is indisputable that an offence Under Section 211 IPC is a non-cognizable offence and should have been undoubtedly taken cognizance of by the Court if it was instituted on a private complaint. A complaint within the meaning of Section 4(h) Cr.PC of course does not include a police report. But' after the amendment of Section 190, cognizance of a non-cognizable offence can as well be- taken Under Section 190(1)(b) on the basis of the police report in the samiswsy as in cognizable cases. The- teamed counsel, however, for a contra proposition has referred to Perumai Hsuck.v. Emperor A.I.R. 1925 Mad, 672, hut that has bean overruled by Public Prosecutsr v. Ratnavetu Chetty, Am ISM Mad 865 p). it was observed in the. latter case that the report of police officer mentioned in Section 19811111) is not confined for a report et a cognizable offence, ana it includes even the police report in. non-cognizable case. Thus,: the fact that the- Magistrate took cognizance of the case on the basis of a police report and not in the basis of a complaint, does not assume any importance-, when; it, is. clear that lie clear as well that cognisance of non-cognizable cases also- on .police report.

But the matter does not. end there, for as. a result of amendment in Criminal Procedure, two entirely different procedure? have now. been made available for cases brought on two different, bases, Section 207 cr p. c. which,. relates, to the enquiry into cases triable stay a Court of Session or High Court in terms provides for two different procedures. Sub-section (a) provides far procedure to be followed, when the proceedings are instituted on a police, report and that procedure is embodied in See, 207-A. Sub-section. (b) provides far a different procedure- (or any proceeding which is not instituted on a police, report- Thus, for the proceedings started on a police report. we have to look to the provisions in Section 287-A. m other cases the procedure in Section 208 and in the subsequent sections is to be followed. Section 207-A, it may be noted, refers to the report forwarded Under Section 173 only, in other words,, any other police report is not covered by that section. Section 173 is-in Chapter K(V mi the report contemplated there is a final: report which is sent to the Magistrate after investigation, whether it fee in relation to a cognizable case or a non-cognizable case. Of course in the latter case the investigation should toe done by the order of the Magistrate Under Section 155(2). Unless it is a report made after such investigation it cannot come within ',he ambit , of Section 173: Cr.PC Judged in this manner, it cannot be said that any proceeding started on , the basis of a police report,, other than the report Under Section 173, can be within the pm View. of Section 207-A. The procedure for such a other cases would fee as provided by Section 207(8) and laid down in Section 208 and subsequent sections, it .is also clear that if, in a non-cognizable case, the investigation has been: made, without the order of the Magistrate, that to a cannot fall within the ambit of Section 173 and the prosecutor laid down', in: Section 207-A will not be available.

In this- connection, t aw referred to two decisions of the. Calcutta High Court in Manik chand v. the State MR 1951 Cat 324' and Tarapada Sarkar v. State A.I.R. 1959 Cal' 640, which. favour this view. Thus it is obvious that even though the police in this case be investigate the matter and made report thereafter since that investigation was not toy the order of the magistrate as contemplated by Section 155(2) the report based there upon was not the I police report to which the provision of Section 207-A would apply. The Magistrate therefore did not act in accordance with law when he adopted the said procedure, It was obligatory on him to follow the procedure in Section 208. It is nevertheless argued that any irregularity, however material in procedure cannot nullify or vitiate the proceedings, unless some prejudice is shown and since the Magistrate had examined most of the witnesses, it cannot be said that any prejudice has been caused to the accused or there has been any failure of justice. I cannot agree with this. Failure of justice does not merely mean an erroneous- decision. When the procedure which would give the person affected a fA.I.R. opportunity to clear-his. position has not been followed certainly it would fie a case of failure of justice. It cannot be said there has been a fair enquiry by reason of the substitution of another mode of trial, other than that prescribed by law.

8. I am therefore of the opinion that the proceedings before the enquiring Magistrate- have been vitiated any reason of adapting mode of procedure other than prescribed by law. The result is that the Magistrate shall have to institute an enquiry afresh in accordance with the procedure laid down in Section 201 Cr. P-. C. and subsequent provisions.

9. The last plea taken relates to. the 3rd 'accused. But there seems to be same fallacy in the argument, which proceeds on the assumption, that the offence of Section 211 is said to have been committed in or in relation to any judicial proceeding. It is urged that the 3rd accused on account of the statement Under Section 164 recorded by,- the Magistrate, has been charged with the offence Under Section 211 IPC That is not a fact. The fact is that according to the prosecution A-3 had instigated A-l to make a report assuring him that he will be eye-witness to the murder of A-l's wife by P.W. 5 to 11, Thus offence Under Section 211 read with Section 109 I. P. C which is imputed to him is not based on his statement, recorded Under Section 164 Cr.PC but is based on his instigation which took place much earlier and as a result of which A-l made the report. In these circumstances Section 195 Cr. P, C. has no application. The third plea thus fails. , But since the second point has been decided in favour of the petitioners, the result is the order of committal is quashed. The case wilt now go back and the Magistrate shall start the proceedings by following the procedure in Section 208 and in subsequent provisions of the Criminal Procedure Code.


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