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Lakhan Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1936All788; 165Ind.Cas.769
AppellantLakhan
RespondentEmperor
Excerpt:
- - he clearly held that the endorsement of the superintendent of police did not come within the definition of a complaint under which it should be an allegation made to a magistrate with a view to his taking action. the legislature has clearly drawn a distinction between a complaint and a mere report by a police officer, otherwise it would not have mentioned both in section 190 and only one in section 195. to hold that every report made by a police officer, no matter to whom and with what purpose, amounts to a complaint if it contains all the necessary allegations would, in my opinion, be nullifying the provisions of section 195(a). 4. section 4(1)(h) makes the position clearer still. it seems that where a death has taken place in suspicious circumstances it is the duty of the headman.....sulaiman, c.j.1. this is an application in revision from an order convicting the accused who is the mukhia of a village under section 177, i.p.c. on 5th july 1934, he signed a panchayatnama in the capacity of a mukhia which was to the effect that one mt. rajrani had died by having been drowned in the jumna a day before. this panchayatnama was sent to the police and was believed by them to be true, and the sub-inspector went to the village to make an investigation. it was later ascertained that the information as absolutely false and that the girl was in fact alive and that the mukhia knew on that date that she was alive because she had in fact eloped with him the case against the accused was that knowing that she was alive and also knowing that she had eloped with him, the accused.....
Judgment:

Sulaiman, C.J.

1. This is an application in revision from an order convicting the accused who is the mukhia of a village under Section 177, I.P.C. On 5th July 1934, he signed a panchayatnama in the capacity of a mukhia which was to the effect that one Mt. Rajrani had died by having been drowned in the Jumna a day before. This panchayatnama was sent to the police and was believed by them to be true, and the Sub-Inspector went to the village to make an investigation. It was later ascertained that the information as absolutely false and that the girl was in fact alive and that the mukhia knew on that date that she was alive because she had in fact eloped with him The case against the accused was that knowing that she was alive and also knowing that she had eloped with him, the accused concealed that fact and was a party to supplying false information to the police that she had been drowned so that they may be put on a false scent. The Sub-Inspector addressed and sent to the Superintendent of Police a communication headed as 'Report made by Sub-Inspector' in which after mentioning all the allegations constituting the offence and stating that Lakhan, (describing him by name and not calling him an accused) was guilty of an offence under Section 177, I.P.C., concluded with the request:

It is therefore prayed that permission under Section 195, Criminal P.C., may be given to institute a case under Section 177, I.P.C., against Lakhaa Singh.

2. The Superintendent of Police sent this on to the Magistrate with the endorsement 'Forwarded to the S.D.M. for information and necessary action ' The S.D. M treated it as a complaint and took cognizance of the offense. The case in Baldeo Singh v. Emperor 1926 96 IC 211 decided by Daniels, J. is certainly in favour of the applicant. In that case the learned Judge held that where a report had been made by the Circle Inspector to the Superintendent of Police and submitted by the Superintendent of Police to a Sub-Divisional Officer with the endorsement that it was submitted for favour of disposal and necessary action, there was no proper complaint within the meaning of Section 4(1)(h), Criminal P.C. He clearly held that the endorsement of the Superintendent of Police did not come within the definition of a complaint under which it should be an allegation made to a Magistrate with a view to his taking action. He had before him both the report of the Circle Inspector and the endorsement of the Superintendent of Police and rejected the contention that the endorsement should, be taken as incorporating the preceding report of the Circle Inspector which had contained a definite recommendation that; a prosecution under Section 182 should be instituted because he found it impossible to believe that when the Superintendent of Police wrote the endorsement he considered himself to be making a formal complaint of an offence. The learned Judge also considered that it was not a mere defect of form which can be cured by Section 537, Criminal P.C., but that in such a case the substance of the matter is not there at all.

3. It seems to me that this ruling puts a fair and reasonable interpretation on the definition of complaint and the rule laid down therein is a wholesome one. To condone such defects would be merely to encourage slackness on the part of police officers, and thereby to induce them to act contrary to the requirements of the law. In Abdul Rahman v. Emperor 1932 ALJ 155 also a brief communication made by a Superintendent of Police was held not to amount to a complaint. I may give additional reasons why the report is not a complaint. Section 190, Criminal P.C., empowers a Magistrate to take cognizance of any offence (a) upon receiving a complaint, (b) upon a report of facts made by any police officer and (c) upon information received from another person or upon his own knowledge. This section is general and applies to all offences unless there is any special provision to the contrary. Now Section 195 expressly provides that no Court shall take cognizance of any offence under Sections 172 to 188, I.P.C., except on the complaint in writing of the public servant concerned or his superior officer. Section 190 is, therefore, subject to the provisions of Section 195, and a Magistrate cannot take cognizance of an offence under any of these sections on a mere report made by a police officer. He has jurisdiction to act only when there is a complaint by such an officer. The legislature has clearly drawn a distinction between a complaint and a mere report by a police officer, otherwise it would not have mentioned both in Section 190 and only one in Section 195. To hold that every report made by a police officer, no matter to whom and with what purpose, amounts to a complaint if it contains all the necessary allegations would, in my opinion, be nullifying the provisions of Section 195(a).

4. Section 4(1)(h) makes the position clearer still. Complaint is defined as an allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, etc., but it does not include a report of a police officer. The legislature therefore has drawn a clear distinction between a complaint and a mere report of a police officer, and has in express language indicated that a complaint does not include the report of a police officer. To hold that every report of a police officer is a complaint would be going against the express language of this definition. Courts have tried to explain away the effect of the express language of this section first by introducing some words into the section which would make it refer only to reports of police officers in cognizable offences, although the words as used are quite general. Formerly Section 190(1)(b) had the words 'upon a police-report of such facts,' and so there were decisions which held that the words 'police report' were used in the technical sense of formal reports which the police are to make in cognizable cases, and therefore reports in non-cognizable cases had always to be treated as complaints. It was, however, overlooked in such cases that a police officer may have to report in a non-cognizable case under Section 155(2), Criminal P.C. Indeed he had no authority to investigate a non-cognizable case without first obtaining an order of a Magistrate and for the purpose of obtaining such an order he may submit a report to the Magistrate. Anyhow the legislature has amended the section and has now used the words 'report made by any police officer,' which must now mean that the clause covers any report by a police officer whether of a cognizable or non-cognizable offence. Of course a Magistrate would not ordinarily take cognizance of a non-cognizable offence except upon the complaint of the aggrieved person or until he has before him a police report based on an investigation ordered. But it cannot be said that if the Magistrate acts upon a report, he would be acting absolutely illegally. Accordingly there remains no justification for saying that the words 'report of a police officer' in Section 4(1)(h) mean the report of a police officer in either only cognizable or only non-cognizable cases. As pointed out by Sir John Woodroffe in his Commentary on the Criminal Procedure Code, p. 12, Note 17:

But now Section 190(b) has been amended so as to include any report whether in cognizable or non-cognizable cases, and therefore the term 'complaint' [S. 4(1) (h) will now exclude both.

5. See also the case in Nagendra Nath v. Emperor 1924 51 Cal 402, pp. 413, 414. It seems to me that there is an essential difference between a complaint and a mere report of a police officer. A complaint must be intended to be addressed to a person empowered to take cognizance of the offence, while a report may merely be intended to convey an information to a superior authority. If it is a mere report that superior may not take any action at all. But if it is complaint of a public servant then the superior authority has no power to suppress it; he can only order its withdrawal under Section 195(5), and must inform the Court that it has been withdrawn by him. The distinction between the two words is clear from the definition itself as a complaint is defined as meaning 'allegation made to a Magistrate.' If the allegation is made to some other person, obviously it cannot be a complaint. Again the object of making the complaint must be that the Magistrate should take cognizance under the Code of Criminal Procedure, for the definition expressly says 'with a view to his taking action under this Code.' On the other hand, a report may be made to a superior officer with a view that the police officer and not the Magistrate may take necessary action.

6. In such a case the report cannot be a complaint. Section 190 requires that the report made by a Police Officer must be in writing. Section 195 also requires that the complaint of the public servant should be in writing. But Section 4(1)(h), excludes a report of a police officer, whether oral or in writing (provided of course it is a mere report). On the other hand, it must be conceded that if a report is addressed to a Magistrate and contains allegations made to him with a view to his taking action under the Code, then it would be a complaint even though it is submitted as a report by a police officer. In the present case the Circle Inspector was making a report to the Superintendent of Police. He never intended to address the report to the Magistrate at all. The report no doubt contained all the allegations relating to the offence, but such a report cannot be said to be 'allegation made to a Magistrate.' These allegations were really made to the Superintendent of police. The professed object of the report was that the Superintendent of Police should grant permission to institute a case under Section 177, I.P.C. Indeed, this was the prayer contained at the end of the application. Apparently the S.I. was not aware of the amendment of the Code and was labouring under the old impression that a sanction was necessary. It can hardly therefore be said that this was an allegation made to a Magistrate with a view that the Magistrate may take action under Section 190, Criminal P.C.

7. The reason why the Legislature requires that cognizance of certain class of offences should be taken only on a complaint made by a public servant obviously is that a complainant takes a certain responsibility upon himself in making a complaint whereas by merely reporting certain facts to a superior authority he does not himself start a criminal proceeding without the concurrence of such authority. Similarly by merely forwarding the report made to him by a subordinate the superior officer acts as a post office and does not necessarily take any responsibility upon himself. It cannot therefore be said that a mere report to a superior officer or a mere endorsement made by the Superintendent of Police forwarding to a Magistrate the report made to him by a Sub-Inspector with the request that he may grant sanction for instituting a case is a complaint in itself. The Superintendent of Police cannot be said to have intended himself to make any allegation to the Magistrate. It would in my opinion be going against the express language of the section quoted above to hold that such an endorsement is a complaint within the meaning of Section 4 or Section 195, Criminal P.C. It is next contended that as the definition of complaint is subject to the opening words 'unless a different intention appears from the subject or context' that word should not be given its defined meaning in Section 195. I am unable to accept this view. There is absolutely nothing in the subject or context of Section 195, which would suggest a different intention. Indeed, as Section 195, follows Section 190, the obvious inference is that a mere report of a Police Officer is not sufficient, but that there must be a complaint.

8. In my opinion when no proper complaint was filed at all, there has been a direct violation of Section 195(a), and the Magistrate had no jurisdiction to take cognizance of the offence. This is not a case where an irregularity has been committed in the complaint actually filed, but is a case where no proper complaint has been filed at all. I therefore agree with Daniels, J. that such a vital defect is not a mere irregularity which can be condoned under Section 537, Criminal P.C. The contrary view would negative the imperative provisions of Section 195, and would confer jurisdiction upon a Magistrate to act without any complaint when he is prohibited from so acting. It seems to me that no harm is done in insisting upon a proper compliance with the provisions of the Code. It will merely impose upon police officers the duty of acting in accordance with law and not in a slipshod manner. A fresh complaint can be filed in the proper manner either by the Sub-Inspector or by the Superintendent of Police and the case be proceeded with. Not to insist on a strict compliance with the provisions of the law would be to perpetuate irregular procedure for the future. When a proper complaint is filed hereafter, it may be more appropriate on the facts alleged in the report to prosecute the accused under Section 182, instead of under Section 177, I.P.C. A false information appears to have been supplied to a public servant which misled him and compelled him to go to the village and make an investigation into an alleged case of drowning The applicability of Section 177 is not so very clear. An offence under the section would be committed if the mukhia was 'legally bound to furnish information on the subject.' Now there is no doubt that the mukhia acted dishonestly and grossly improperly in supplying false information and putting the Sub-Inspector on a false scent altogether. But as no prosecution for kidnapping was started, it cannot; be presumed that any offence had really been committed in the village.

9. It is, of course, certain that no death, much less any sudden or unnatural death or any death under suspicious circumstances, had taken place, nor is it said that the disappearance of any person in the circumstances leading to a reasonable suspicion that a non-bailable offence had been committed took place. The prosecution case rests on the contention that under Section 45, Sub-section (1) (d), Criminal P.C., it is just as much the duty of a village headman to supply information when a (Jeath takes place as when no death has taken place. This to my mind is extremely doubtful. One would certainly expect that it should be the duty of a mukhia to supply true information and not supply false information in all cases, but to make it his legal duty, his act must be brought within the four corners of this section Taking this section as it stands, it only enjoins upon him the duty of communicating information which he may possess respecting

the occurrence of any sudden or unnatural death or of any death under suspicious circumstances, etc.

10. The section does not say ' on the alleged occurrence of any death.' The word 'subject' used in Section 177, I.P.C., means on any matter. Section 45, Criminal P.C., does not say that he is bound to supply information on the subject of a death, which might perhaps have included both the case where a death took place and a case where no death, in fact, took place; but it says merely on the occurrence of a death. The word ' occurrence' in my opinion is not am equivalent of the word ' subject,' and necessarily implies that a death has actually occurred and not only that it is alleged to have occurred. If it was to be held that it is his duty to supply information on the 'subject of an alleged death,' even though no death has taken place, the position of a headman who is not a paid servant, would become intolerable as he would become guilty under Section 176, I.P.C., where he merely omits to expose all sorts of false rumours that may be afloat about alleged deaths, even though he may know that the persons named are alive. It seems that where a death has taken place in suspicious circumstances it is the duty of the headman to supply the information ha possesses and his failure to do so makes him liable under Section 177. But where no death has taken place at all, Section 177 is inapplicable.

11. Nor is he guilty under Section 176 if he-omits to say anything about it. But if: he supplies a false information whether a death has taken place or not he may be guilty under Section 182, I.P.C. I am not saying that the mukhia is not liable to be dealt with in any other manner, but I have a grave doubt in holding that a legal duty was cast upon him under Section 45, Sub-section (1) (d), to inform the police that it was wrongly stated in the village that the girl had died, although she had not in fact died but was alive. It was certainly his moral duty to supply such information, but it cannot be said that such was his legal duty so as to make the breach of it a criminal offence under Section 177, I.P.C. I am inclined to hold that as he supplied the false information the offence would more appropriately fall under Section 182, I.P.C. But as the matter will have to be considered when a proper complaint is filed, I do not wish to ex-press any final opinion on this question.

Bennet, J.

12. Lakhan applies in revision against his conviction by a Magistrate of Banda under Section 177, I.P.C., and sentence of Rs. 200 fine, his revision having been dismissed by the Sessions Judge, Two points have been argued: (1) that as Section 45, Criminal P.C., does not apply, the case does not come under Section 177, I.P.C.; (2) that there was no proper complaint as required by Section 195(1) (a), Criminal P.C. The first point has been already before this Court on an application to quash the proceedings, and the late Kendall, J. held that the facts alleged by the prosecution would amount to an offence under Section 177, I.P.C. Those facts, which have now been held proved, are that Lakhan was a mukhia or village headman and in that capacity he attested a panchayatnama stating in writing:

We, the panches, are of opinion that Beni Madho's daughter got drowned in the Jurnna and that there is no doubt or suspicion about it.

13. The report was given to the chokedar on 5th July 1934 to take to the thana which he did. The evidence of the girl Mt. Raj Rani, which 'has been accepted by the Courts, is that her brother was going to get her married in Unao district and the accused Lakhan told her to have the false story spread that she was drowned in the Jumna and to come to his house and he would get her married well in another place. The girl aged 16 was induced to do this and she came to the house of Lakhan on 4th July after getting Mt. Sahodri a small girl of six years to give out the false story that Mt. Raj Rani had been drowned on 4th July. The girl was concealed in the house of Lakhan for four or five days during which the police came to enquire into the supposed death from drowning, and then Lakhan and others took the girl to Cawnpore. Her brother traced her there and she was taken to a thana in Cawnpore on 8th August 1934, and a report under Section 363/366, I.P.C. made against Lakhan and others. The Sub-Inspector challaned Lakhan and others under Section 365/366 I.P.C., but the Superintendent of Police cancelled the charge sheet and then Lakhan was prosecuted under Section 177, I.P.C. The Magistrate found that Lakhan knew that Mt. Rajrani was alive on 5th July 1934, when he signed the panchayatnama stating he believed she had been drowned the previous day and he thus gave false information to the police that she had been drowned. Section 177 I.P.C., states:

Whoever, being legally bound to furnish information on any subject to any public servant as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished etc.

14. Section 45(1), Criminal P.C., states:

Every village headman, shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police-station whichever is the nearer, any information which he may possess respecting (d) the occurrence in or near such village of any sudden unnatural death or....

15. The argument in ground No. 1 of revision is:

Because Section 45, Criminal P.C., not being applicable, the case does not coma within the pursuance (sic) of Section 177, I.P.C.

Learned Counsel for accused argues that as no death occurred there was no duty under Section 45, Criminal P.C. to furnish information and therefore furnishing false information cannot be an offence under Section 177, I, P.C. I consider that this argument requires that Section 177, I.P.C., should be read as if it meant as follows: :

Whoever being legally bound to furnish information on which on circumstances which exist to any public servant.

16. Can the words 'on any subject' in this) section be read as if the words meant 'on circumstances which exist?' I do not think so, and I see no reason to limit the meaning in this way to existing circumstances. The word 'subject' is much wider, and the subject here is 'sudden or unnatural deaths.' The duty of the mukhia under Section 45 is to report true facts in regard to this subject; if he omits to report an occurrence he is guilty of an omission under Section 176,I. P.C., and if he falsely reports an occurrence where there was no occurrence, or if he makes some half statement about an occurrence, he is guilty under Section 177, I.P.C. I do not consider it is correct to say that the subject under Section 177 is the 'occurrence' because an occurrence is only a particular instance and the word 'subject' implies something which is common to a number of instances, all of which are classed under one subject. Here the mukhia is bound to 'communicate forthwith' 'any information which he may possess respecting' an instance of the subject of 'sudden or unnatural death.' In my view that the word subject in Section 177, I.P.C., has a wide or general meaning I am supported by High Court proceedings 21st December 1871 6 MHC App 48, -where it was held that this section embraces every case in which a subordinate seeks to impose false information upon his superior, and also by the order of the late Kendall, J. in this present case, in which he refers to this argument for the applicant as a 'curious conclusion.' But even if the argument were accepted, the case would come under Section 182, I.P.C.:

Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant, (a) to do or omit to do anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known to him, or....

17. Here the result of the false information was that the head constable came to the village to make an enquiry into the supposed case of drowning which he would mot have done if there had been no false information. It is open to this Court in revision to alter the finding to Section 182, I.P.C. [Sections 423(1)(b)(2) and 439(1), Criminal P.C.] The complaint of either Section 177 or Section 182, I.P.C., comes under Section 195(1)(a), Criminal P.C., and in a complaint as defined in Section 4(1)(h) it is the allegation of an offence which is required, not the mention of the number of the section. The applicant cannot therefore succeed on his first ground of revision. The second ground is not contained in the application to this Court, and was not taken before the lower Courts and was not taken before Kendall, J. but was taken for the first time in argument. Section 195(1), Criminal P.C., states:

No Court shall take cognizance, (a) of any offence punishable under Sections 172 to 188, I.P.C., except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate.

18. On p. 7 of the typed book is a communication from Sub-Inspector Umrao Khan dated 4th October 1934, and the learned A. G. A. contends that this amounts to the complaint required by Section 195(1)(a), Criminal P.C. The case may be at once distinguished from Baldeo Singh v. Emperor 1926 96 IC 211, a decision by Daniels, J., on which the applicant relied, by the simple fact that in that ruling the argument for the prosecution was that the endorsement of the Superintendent of Police constituted the complaint-'I submit the above report for favour of perusal and necessary action please'. On p. 212 it is stated:

It is urged that the endorsement should be taken as incorporating the preceding report of the Circle Inspector which does contain a definite recommendation that a. prosecution under Section 182 should be instituted. I cannot accept this view...the substance of the matter is not there. It is impossible to believe that when the Superintendent of Police wrote the endorsement quoted above, he considered himself to be making a formal complaint of an offence.

19. It was never suggested to Daniels, J. that the communication from the Circle Inspector might be considered as the complaint, and he does not refer to such an idea at all. Very probably the reason was that the learned A. G. A. in that case thought that a complaint should be made direct to a Magistrate and that the communication could not be treated as a complaint for that reason. In the present revision the argument of the learned A. G. A. is that the complaint is the communication of the Sub-Inspector and that the Superintendent of Police was merely the channel by which it reached the Magistrate, his order being 'forwarded to the S.D.M. Banda for information and necessary action'. On this the Magistrate ordered:

I treat this as a complaint. Register a case under Section 177, I.P.C., against Lakhan Mukhia. Summon him for 2nd November 1934 and P. I. to adduce evidence.

20. The argument is that the Magistrate was wrong to treat the communication as a 'complaint', and that it was merely a 'report' and that he should have treated it as a 'report.' One weak point in this argument is: what order was the Magistrate to pass if he did not treat the communication as a complaint under Section 195(1)(a) Criminal P.C.? Was he to ask the Sub-Inspector to amend the communication in some way to make it more formal, such as by deleting the word 'report' at the top and writing the word 'complaint'? Section 190(1) lays down that a magistrate

may take cognizance of any offence; (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer.

21. What is the distinction to be drawn between (a) and (b)? In Section 4(1) it is provided

In this Code the following words and expressions have the following meanings, unless a different intention appears from the subject or context; (h) 'complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.

22. Every one of the necessary ingredients of a complaint must appear in a report under Section 190(1)(b); there must be an allegation to a Magistrate with a view to his taking action under this Code, that some person has committed an offence. The only distinction to be drawn is that the report must be in writing and that it must be made by a police officer, and the complaint differs only in this respect. I consider that under Section 190(1)(b) would come reports by a police officer of offences cognizable or non-cognizable, and the only kind of communication he could make under Section 190(1)(a) to a Magistrate which would be a complaint would be when he made it not as a police officer but in his private capacity, if for example he were assaulted when he was not on duty. The importance of the distinction drawn by the Code between a complaint and a report by a police officer is that under Section 200, Criminal P.C., a Magistrate taking cognizance of an offence on complaint 'shall at once examine the complainant upon oath' and he may under Section 202 direct an inquiry or an investigation. There are no similar provisions applying to a Magistrate taking cognizance on a report from a police officer. The general distinction in the Code between a complaint and a report is therefore that a report is made by a police officer and a complaint is not.

23. Then I come to a particular class of offences for which the Code provides a particular procedure which must take place before a Magistrate can take cognizance, and of these Section 195 deals with three groups of offences. Group (a) refers to contempts of the lawful authority of public servants and groups (b) and (c) refer to Courts. In each case a complaint is required. A police officer is one of the class of public servants, and in regard to police officers a difficulty at once arises. A communication to a Magistrate which would be a complaint by any one not a police officer becomes a report when it is made by a police officer with reference to the definition of a complaint in Section 4(1)(h), and Section 190(1), for the meaning of a report to a Magistrate. If therefore this distinction is to be applied to Section 195(1) (a) where the public servant happens to be a police officer it would follow that a police officer cannot make a complaint at all under that section. The solution lies in the opening words in the definition of complaint in Section 4(1) 'unless a different intention appears from the subject or context.' I consider that in Section 195(1) (a) a different intention does appear from the context, because of the difficulty which I have just set out. I therefore hold that for Section 195(1) (a) the last eleven words of the definition of complaint in Section 4(1) (h) do not apply, and that complaint for Section 195(1) (a) does include the report of a police officer.

24. I may point out that complaints of public servants and of Courts under Section 195 are now treated like reports of a police officer for the purpose of Section 200, and by Sub-section (aa) introduced by Act 18 of 1923 in such cases the complainant need not be examined upon oath. The question has also been argued that the communication on p. 7 does not contain the ingredients of a complaint as defined in Section 4(1)(h). A complaint must been allegation made to a Magistrate; it is said that this was not made to a Magistrate but to the Superintendent of Police. In the Police Regulations 1928, Government has laid down on p. 3, para. 12: 'All communications between Magistrates and the police force must be conveyed through him.' It was therefore necessary under this rule that the communication in question should be sent by the Sub-Inspector through the Superintendent to the Magistrate. I may also point out that complaints by Courts are never taken direct by the Court to the Magistrate; the complaint is always forwarded by messenger or through the post, and what applies to a Court under Section 195(1), Criminal P.C., must also apply to a public servant under the same section. It is only in the case of complainants not of these two classes that the complaint should be made direct because Section 200 requires the Magistrate to ' at once examine the complainant on oath.'

25. Next the allegation must be made 'with a view to his taking action under this Code.' This does not require that there should be a formal prayer to that effect; in this a complaint differs from a plaint in a civil Court, where there must be a prayer setting out the relief for which the plaintiff asks. In general the allegation made to a Magistrate that some person has committed an offence will be with a view to the Magistrate taking action under the Code. But there maybe circumstances which show that this is not the case. In Emperor v. Haidar Raza 1914 36 All 222, Piggott, J. had a case where a complainant before a Bench of Honorary Magistrates in the course of negotiations for compromise of some case alleged that he had given the peshkar of the Court an illegal gratification, Rs. 7, and he claimed that he should be paid this sum by the opposite party in the compromise. This was an allegation to a Bench of Magistrates that the peshkar had committed an offence, but as there was no intention that the Magistrates should take action under the Code, Piggott, J. held on p. 226 that it was certainly not a complaint. In Emperor v. Bhole Singh 1915 38 All 32, a mukhia applied to the District Magistrate in a petition asking to resign from his post. The Magistrate asked his reason, and he said that the police inspector had acted with extortion and tyranny in connexion with a dacoity inquiry. The Magistrate examined him on oath, and eventually ordered his prosecution for making a false complaint, under Section 211, Penal Code.

26. Tudball, J. held that the statement was made extra-judicially and without any intention or desire that it should be taken as a complaint and the proceedings were, therefore, quashed. In the present case there is no doubt that the sub-inspector intended that his written allegations that La-khan had committed the offence of Section 177, Penal Code, should reach the Magistrate, and that the Magistrate should take action under the Code. He definitely writes, ' institute a case under Section 177, Penal Code, against Lakhaa mukhia.' It is true that he uses those words when asking for 'permission under Section 195, Criminal P.C.' when as a matter of law no further permission was needed than his own complaint. But mere errors of law in a complaint do not make it any the less a complaint. The next part of the definition of complaint contains the words ' that some person, whether knows or unknown, has committed an offence.' In the communication of the sub-inspector it is clearly alleged:

Lakhan mukhia...signed the panchayatnama.... By giving false information he made me believe that there was an accidental drowning. Lakhan is, therefore, guilty of an offence under Section 177, Penal Code.

27. The communication, therefore, fulfilled this requirement. The last part of the definition is ' but it does not include the report of a Police Officer.' I have already given reasons why I consider that this part of the definition of complaint does not apply to the word complaint when used in Section 195(1)(a), Criminal P.C. I consider, therefore, that the communication of the Sub-Inspector dated 4th October 1934 does fulfil all the requirements of a complaint under Section 195(1)(a), Criminal P.C., and that the case for the applicant in revision fails on this second point also. I might express the matter of the difference between a complaint and a report of a Police Officer as follows: for all general purposes of the Code a Police Officer might make his report as like a complaint as it could possibly be, he might put in it all the necessary ingredients of a complaint, he might head it complaint in the Court of the sub-divisional Magistrate,' but it would never be a complaint as defined by Section 4(1)(h) Criminal P.C., simply because of the person making it being a Police Officer, acting as a Police Officer; because Section 4(1)(h) means that an allegation which would be a complaint if made by another person cannot be a complaint if made by a Police Officer. The section does not mean to draw any distinction between the matter or form of a complaint and the matter or form of a report; the section only draws a distinction as regards the person making the allegation. The reason for this distinction is that the Magistrate acts in a different manner if the allegation is made by a Police Officer. There is an exceptional class of cases where Section 195(1) lays down that complaints must be made by the public servant or Court concerned; that is, their allegations are called complaints. It must happen that sometimes the public servant will be a Police Officer, and like other public servants his allegations under Section 195(1) amount to a complaint, and the general definition in Section 4(1)(h) does not and could not apply, because if it did there would be a contradiction between the two sections, one of which would say that the allegations were a complaint and the other section would say that the allegations were not a complaint. The proviso in the beginning of Section 4(1), therefore, prevents that section from applying to Section 195(1) (a) so far as the contradictory part of it is concerned 'but it does not include the report of a Police Officer.' I may briefly refer to some cases cited. For appellant reference was made to Abdul Rahman v. Emperor 1932 ALJ 155. The question considered was merely whether brief communications by the Superintendent of Police and the District Magistrate amounted to complaints and it was held they did not. The question as to whether the allegations of the investigating officer accounted to a complaint was not considered, though it is mentioned that:

He moved the Superintendent of Police that the accused be prosecuted for an offence under Section 182, Penal Code.

28. Reference was made to Baldeo Singh v. Emperor 1926 All 566, where this point had not been considered either. The ruling is, therefore, no authority on the point now raised in this revision. In Kali Charan v. Emperor 1934 Oudh 186 there was also only the question of the order of the District Magistrate sanctioning a prosecution, but containing no allegations, and there was no consideration as to whether the report of the Excise Inspector made to the Excise Officer (who is also a Magistrate) did amount to a complaint. And the present point could not have arisen for the further reason that the Excise Inspector is not a Police Officer. The learned A. G. A. referred to The Public Prosecutor v. Ratanavelu Chetty 1926 49 Mad 525, where the facts are given on p. 530 that information (of dacoity) was given to a village Magistrate who forwarded it to the police, and the police considered the information false and sent a charge sheet under Section 211, Penal Code, to the Magistrate, who inquired into the case and committed the accused to Sessions; the charge-sheet from the police had asked the Magistrate to take action under Section 211, I.P.C. On p. 534, it is stated that the Assistant Sessions Judge being of opinion that the commitment on a charge of a non cognisable offence upon a police report was illegal, acquitted the accused, without trial. In a previous case a bench had held that where a Magistrate received a police report of a non-cognisable offence he could not treat it as a report under Section 190(1)(b) but he must treat it under (a) and examine the police officer on oath or treat it under (c) and inform the accused under Section 191 that he may have the case transferred: Perumal Naick v. Emperor [1925 MWN 317 referred to in the ruling in question on pp. 527 and 528]. The Full Bench specifically overruled this ruling on p. 539, and held that Section 190(1) (b) refers to reports from a police officer in either cognisable or non-cognisable cases. This is the view which I have taken, that allegations of the commission of an offence whether cognisable or non-cognisable made to a Magistrate by a police officer are reports under Section 190(1)(b), but in the special case of Section 195(1)(a) these allegations are complaints. It is to be noted in the Madras case that there was no question of the police officer making a complaint under Section 195(1)(a) because the information was given to the village Magistrate and not to the police.

29. There is nothing in any of the rulings cited which is against the interpretation which I have made of Sections 4(1) (h) and 195(1)(a), Criminal P.C. I consider that the application in revision fails on the two points which have been argued on revision, and I would therefore dismiss the application.

30. [On account of this difference of opinion the following points were referred to another Judge:

1. Whether the communication made by the Sub-Inspector of Police to the Superintendent of Police and forwarded by the latter to the Magistrate amounted to a complaint within the meaning of Section 195, I P. C?

2. If not, whether the defect is cured by Section 537, Criminal P.C.?

3. Whether the accused's supplying false information to the police amounted to an offence under Section 177, I.P.C.?]

Rachhpal Singh, J.

31. This case, owing to difference of opinion between the two Hon'ble Judges, has been sent to me for expression of an opinion on the following three points:

1. Whether the communication made by the Sub-Inspector of Police to the Superintendent of Police and forwarded by the latter to the Magistrate amounted to a complaint within the meaning of Section 195, Criminal P.C.?

2. If not, whether the defect is cured by Section 537, Criminal P.C.?

3. Whether the accused's supplying false information to the police amounted to an offence under Section 177, I.P.C.?

32. The facts found are these: Lakhan accused applicant is the mukhia of his village. He attested a Panchayatnama in which it was stated that a daughter of Beni Madho was drowned in the Jumma and that there was no doubt or suspicion about it. The Panchayatnama was given to the village Chowkidaron 5th July 1934 who presented it at the thana. The evidence in the case proves that the information sent to the Police was false and that as a matter of fact the girl was not drowned but was taken away from the village by Lakhan Mukhia and that Lakhan spread a falsa story that she had been drowned. A case under Section 365/ 366, I.P.C., was registered against Lakhan but the Superintendent of Police cancelled the charge-sheet. Lakhan was, however, prosecuted under Section 177, I.P.C.

Question No. 1:-My answer to this question is in the negative. The word 'complaint' is denned in Section 4, Sub-clause (h), Criminal P.C., as follows: Complaint means the allegations made, oral or in writing, to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown has committed an offence, but it does not include a report of a police officer. In the case before me the Sub-Inspector sends information to the Superintendent of Police to the effect that Lakhan Singh has committed an offence under Section 177, I.P.C., and therefore the Sub-Inspector prays that permission under Section 195, may be given for filing a complaint under Section 177, I.P.C. against Lakhan Singh. It appears that the Sub-Inspector wrongly thought that sanction was necessary. As a matter of fact, now no previous sanction is necessary. In my opinion, his letter to the Superintendent of Police is merely a report to him (Superintendent of Police) and is not a complaint to a Magistrate with a view to his taking action against any person. It is true that under the Police Rules all communications between a Magistrate and the Police force must be conveyed through the Superintendent of Police.

33. The question which, however, we have to decide is whether a communication-sent to a Magistrate through the Superintendent of Police is really a complaint by the Sub-Inspector praying that action should be taken by the Magistrate against the accused person, or whether it is merely an information report sent to the Superintendent of Police with a view to obtain sanction for the prosecution or to take whatever action the Superintendent of Police may consider to be necessary. From a perusal of the report sent by the Sub-Inspector to the Superintendent of Police it does not appear that he is making a complaint against any person to the Magistrate with a view to induce the Magistrate to take action. It is nothing else but merely an information report sent to the Superintendent of Police. The question; as to whether or not a particular document comes within the definition of 'complaint' has to be very strictly construed. I agree with the view taken in Baldeo Singh v. Emperor 1926 96 IC 211 that a report submitted by the Superintendent of Police to a Magistrate for favour of disposal and necessary action does not amount to a complaint within the meaning of Section 4(h), Criminal P.C. There may be cases in which a Sub-Inspector writes through the Superintendent of Police to the Magistrate that an offence has been committed, and therefore action should be taken against the accused person. Under the rules he has to address this letter to the Magistrate through the Superintendent of Police. If the Superintendent of Police forwards this to the Magistrate, then certainly the letter would come within the definition of the word 'complaint.' On the other hand, there may be matters in which the Sub-Inspector at the time when he writes his report has no intention of making a complaint but he merely forwards the report to the Magistrate through the Superintendent of Police. If his letter does not indicate that he desires to make a complaint to the Magistrate with a view that he should take action judicially, then the letter cannot come within the definition of the word ,'complaint.' I am, therefore, of opinion that the communication made by the Sub-Inspector in this case to the Superintendent of Police and forwarded by the latter to the Magistrate does not amount to a complaint within the meaning of Section 195, Criminal P.C.

Q. 2.-As in the case before me there was no complaint within the meaning of Section 4(h), Criminal P.C., the defect cannot be cured by Section 537, Criminal P.C. The whole trial was illegal because there was !no complaint, and the illegality cannot be cured under the provisions of Section 537, Criminal P.C. I agree with the view expressed by Daniels, J. in Baldeo Singh v. Emperor 1926 96 IC 211.

Q. 3.-In my opinion on the facts found in this case the accused cannot be held guilty of an offence under Section 177, I.P.C.

34. One of the most important points which the prosecution has to establish in a case under Section 177,I.P.C., is that the accused was 'legally bound to furnish information on a particular subject to a public servant.' In my opinion the prosecution has failed to establish that the accused was 'legally bound' to supply information on the subject to the police. Section 43,I.P.C., says that a person is said to be 'legally bound to do whatever it is illegal in him to omit.' The same section says that the word 'illegal' is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action. Apart from the provisions of Section 45, Criminal P.C., there is no legal liability on the part of an accused person to give the information which he possessed to the police. In Queen-Empress v. Appayya (1891) 14 Mad 484, it was held that unless a person is 'legally bound' to give information, his prosecution under Section 177,I.P.C., cannot succeed. My learned brother, Bonnet, J. in his order in this case refers to the view of the Madras High Court taken in High Court proceedings 21st December 1871 6 MHC App 48 where it was held that in this section the words 'legally bound' do not exclusively refer to cases where a person is required to give information by some legislative enactment but also include cases where the accused is bound to give information to his superior in pursuance of a departmental order. I may, however, point out that the view expressed in the above mentioned case, and also in Virasaml Mudali v. The Queen (1882) 4 Mad 144, was expressly dissented from in Queen-Empress v. Appayya (1891) 14 Mad 484. The view taken in, Hari Singh v. Queen-Empress (1894) PR Cr Judgment No. 25 by Plowden, J. is in favour of the applicant.

35. I am, therefore, of opinion that the accused in the case before me was not legally bound to give any information to the Police apart from the duty imposed upon him under the provision of Section 45, Criminal P.C. Merely giving false information to the Police by a person who is not legally bound to give that information, does not make a person liable under the provisions of Section 177, I.P.C. The section has no application to a case in which a false statement has been made to the Police by a person who was under no legal obligation or who was not legally bound to give that information. Such a person may be liable for prosecution under Section 182, I.P.C, which, however, is a different matter. To bring a case under Section 177, I.P.C., it is absolutely necessary to prove that the informant was 'legally bound' to give the information, which is proved to be false, to the Police. Now we find that Section 45, Criminal P.C., imposes a duty on mukhias (village headmen) and other persons to give information on certain subjects to the Police. In the case before us, we are concerned only with Clause (d) of Section 45, Criminal P.C. Under the provisions of that section, a Mukhia is 'legally bound' to give information to the Police which he may possess respecting the following points: (1) The occurrence in or near such village of any sudden or unnatural death; (2) any death under suspicious circumstances; (3) the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred; (4) the disappearance from such village of any person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person.

36. In the case before us admittedly no death has taken place and there is no evidence that any non-bailable offence has been committed about which the Mukhia had any information which it was his duty to report to the Police. This being so, it cannot be said that the accused has failed to give information about the occurrence of any death, etc. Therefore, his case cannot come under Section 177, I.P.C. No such occurrence, as specified in Section 45(d), Criminal P.C., had taken place and therefore it cannot be said that the accused in his capacity as a Mukhia was legally bound to furnish information to the Police and that in view of the duty imposed upon him under Section 45, he gave false information to the Police. In my opinion, the words 'any subject' occurring in Section 177, I.P.C. have reference to the matters enumerated in Section 45, Criminal P.C., or to matters about which a person is 'legally bound' to give information under some other law, and to no other subjects. I, therefore, hold that as none of the events enumerated in Clause (d) of Section 45, Criminal P.C., had happened, it cannot be said that the accused was legally bound to give any information to the Police and that (the false information which he gave to the (Police does not bring his case within the (four corners of Section 177, I.P.C. Let the record be returned to the Bench concerned.

37. In view of the opinion expressed by the third learned Judge this revision is allowed. The conviction and the sentence passed on the accused are set aside, and it is ordered that the fine, if paid, shall be refunded.


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