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Kishanlal Sahu Vs. Madhabananda Pani - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 358 of 1963
Judge
Reported inAIR1965Ori180; 1965CriLJ525
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 190(1), 195(1), 439, 476 and 476(1); Indian Penal Code (IPC) - Sections 187 and 409; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantKishanlal Sahu
RespondentMadhabananda Pani
Appellant AdvocateB. Mohapatra, ;S.C. Mohapatra and ;A.K. Padhi, Advs.
Respondent AdvocateG.K. Row, ;G. Narasimham and ;D. Mohanty, Advs.
DispositionRevision petition dismissed
Cases ReferredM.S. Sheriff v. State of Madras
Excerpt:
.....plaintiff was well within the scope of section 187, if not under section 409, i. it is well settled that mere labelling of a petition under a particular section of the code is not very relevant if the contents of the petition are sufficient to disclose a particular offence. but there is abundant authority that section 476 does not preclude the officer presiding over a court from himself preferring a complaint, and that the jurisdiction of the magistrate before whom the complaint is laid to try it like any other complaint, is not taken away by that section. the appellate court was also not satisfied that the plaintiff was called upon by any written notice to be present at the spot and to give necessary assistance to she pleader-commissioner, though there is some evidence to show that..........is whether it is expedient in the interests of justice that an enquiry should be made and a complaint filed. that involves a careful balancing of many factors and where the lower court has scrutinised the evidence and has come to certain conclusion on the materials on record and the said conclusion is found to be reasonable, it is not desirable to interfere with that conclusion : m.s. sheriff v. state of madras, air 1954 s c 397.10. apart from the filing of the complaint it is still open to the trial court, to find out in course of the hearing if the plaintiff has in fact misappropriated any of the articles entrusted to him and to ultimately saddle him with the responsibility for the same and to pass necessary orders to recompense the petitioner. but that is a matter with which we.....
Judgment:

R.K. Das, J.

1. The defendant is the petitioner. The facts that gave rise to this revision petition may briefly be stated as follows :

There was some dispute between the parties over a shop at Chanclbali and a proceeding under Section 145, Criminal P. C. was also pending. In the meanwhile, the plaintiff-opposite party filed a suit (O. S. No. 4 o 1961-III) in the Court of the Subordinate 'Judge of Balasore. After filing of the said suit, the plaintiff made an application for appointment of a pleader-commissioner for preparing an inventory of the articles and the account books in respect of the disputed shop at Chandbali. A pleader Commissioner was appointed and he made a list of the said articles and forwarded the same to the court and kept the articles in the custody of the plaintiff. On the petitioner's furnishing security the court directed the return of the said articles to him. Subsequently the trial Court directed another pleader-commissioner to go to the shop and take charge of the articles from the plaintiff and to hand them over to the defendant-petitioner. The pleader-commissioner is said to have issued notice to the plaintiff to hand over the key of the shop and to render him necessary assistance so as to enable him to take charge of the articles and hand over the same to the defendant. The plaintiff, however, did not cooperate with the Commissioner, nor did he hand over the key to him. The fact being of ported to the Court, the Court authorised the Commissioner to break open the lock of the shop house and make over the articles found in the shop to the defendant-petitioner. The Commissioner again went to the spot and found that the plaintiff still avoided him. So he broke open the lock, made a list of the articles as found in the shop and handed over the articles to the petitioner. It was however, discovered that the articles worth about Rs. 15,000/- as compared to the list prepared by the 1st commissioner were missing. The petitioner, thereupon made an application to the Court on 13-7-1961 to file a complaint against the plaintiff under Section 183, I. P. C. No order was passed on this petition.

2. On 9-8-1961 the defendant put in another petition before the trial Court to prosecute the plaintiff under Section 409, Indian Penal Code, and also to take action for contempt of court against him, the allegation against him being that out of the articles entrusted to him by the court, he misappropriated articles worth about Rs. 15,000/- and also did not lend necessary assistance-to the pleader Commissioner. On 9-7-1982, the trial Court rejected the application. Against this order a miscellaneous appeal was filed before the District Judge, Balasore who by his order dated 9-8-1963 dismissed the appeal and confirmed the order passed by the trial court, with slight modification which is not relevant to the present revision. Against the said order, a revision application under Section 439 Cr. P. C. was filed, but later on the said Criminal Revision was converted to a Civil Revision as it was found that Section 476, Cr. P. C. had no application to the proceedings before the that Court, and the appeal before the Dist. Judge was not competent either under Or. 43, C. P. C. or under Section 476-D, Cr. P. C. Hence the Revision petition filed before this Court was treated as one under Section 115, C. P. C. and accordingly has come up for hearing as a Civil Revision.

3. Both the courts held that there was no prima facie case for sanctioning the prosecution of the plaintiff under Section 409 I. P. C, Further Section 409 is not one of those sections for prosecution under which sanction of the Court is required to be obtained under Section 476, Cr. P. Code.

4. Mr. Mohapatra, the learned counsel for the petitioner, contended that even though the application made by the petitioner was one to prosecute the plaintiff under Section 409, I. P. C., it was open to the Court to examine the contents of the petition to find out if the allegations were covered by only other sections of the Indian Penal Code and to give necessary sanction for the purpose. According to him, the facts of the case clearly disclosed that the offence committed by the plaintiff was well within the scope of Section 187, if not under Section 409, I. P. C. and in that view of the matter, the court should have proceeded to file a complaint under Section 187 even though the plaintiff (sic) was one for an offence under sec. 409, I. P. C.

This contention was r&sisted; by the plaintiff-opposite party on the ground that in the absence of formal application under Section 187, it is not open to the petitioner to contend that the case is covered by the provisions of that Section so as to make out a new case at this stage. It is well settled that mere labelling of a petition under a particular section of the Code is not very relevant if the contents of the petition are sufficient to disclose a particular offence. I would, therefore, take it that there was no bar for the trial court to treat the application as one under Section 187, I. P. C., if otherwise a case could be made out under that Section from the facts disclosed in the petition. Assuming for the time being that the petitioner's application in the trial court disclosea a case under sec. 187, I. P. C., there are further difficulties in the matter. An offence under Section 187, I. P. C, comes within the ambit of Section 195 (1) (a) of the Code of Cr. Procedure, where it is said that no Court shall take cognizance 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 Home other public servant to whom be is subordinate. Section 476, Cr. P. C. lays down the procedure to be followed in respect of offences mentioned in sec. 195. Under that section jurisdiction to make a complaint is limited to cases as provided for in Section 195 (1) (b) or (c) and not (a). Thus, even if the original application would have been labelled as one under Section 187, still then an application under Section 476, Cr. P. C. would not have been entertainable. Thus, there is no dispute over the fact that whether the original petition was one under Section 409 or even under Section 187, I. P. C., an application under Section 476, Cr. P. C. was not competent.

5. The next question is whether it is still open to the Court, apart from the provisions of Sec. 476 to file a complaint when the commission of an offence in the course of proceeding before him comes to its notice. Mr. Row, learned Counsel for the opposite party contended that a complaint outside the provisions of Section 476 Cr. P. C., cannot be filed by any court under its inherent powers. He relied upon a Full Bench decision of the Allahabad High Court reported in Emperor v. Rajakushal Palsingh, A I R 1931 All 443 (FB), where their Lordships held that sections 476 and 195, Cr. P. C. have the same scope and must be read together with the result that it is not open to a court to file a complaint under Section 195 when it is not so open under Section 476. A complaint outside the provisions of Section 476 cannot be filed by any court under its inherent powers except in the case of High Court under Section 561 A, Cr. P. C.

This decision, no doubt goes directly against the contention put forward by Mr. Mohapatra, learned Counsel for the petitioner, but there are other authorities of the very same High Court where it was held that a complaint can be filed by a public officer notwithstanding the provisions of Section 476, Cri. P. C. In a case reported in Channulal v. Rex, AIR 1949 All 692, their Lordships had before them the aforesaid Full Bench decision of the Allahabad High Court. They held that the observation in the Full Bench case 'that a Court could file a complaint under Section 476, Cr. P. C. and that it had no inherent jurisdiction to file a complaint otherwise than in accordance with the provisions of that Section' was in the nature of an obiter dictum and was not strictly necessary for answering the question that was referred to the Full Bench. Their Lordships said that the question for decision before the Full Bench was whether Section 195 (1) (c) was applicable so as to render a complaint of a Court necessary before a prosecution for abetment of forgery of some documents could be launched. They observed that the view of Mukherii, J. in the Full Bench case about Section 476, Cr. P. C. was in answer to an argument that Section 476 was not exhaustive, they observed that they were bound by the decision of the Full Bench. They held that under the U. P. Encumbered Estates Act whether a Liquidation Officer is or is not a Court and whether he in his capacity as a public officer is not prevented by any rule of law from making a complaint if he considers that a party in a proceeding pending before him has committed an offence, as a public servant it would be his duty to bring it to the notice of the Magistrate having jurisdiction to take cognizance of the offence. The fact that he could not have taken any action under Section 476, Cr. P. C. in his capacity as a Court does not debar him from taking any action in his capacity as a public officer or authority.

The same view was also taken in another case of the same High Court reported in Har Prasad v. Emperor, A I R 1947 All 139 where Yorke J. held that sections 476 and 196, Cr. P. C. which are in a sense inter-connected speak of a Civil, Revenue or Criminal Court and an election Judge cannot be brought within the ambit of those' terms and hence the complaint made by him cannot be entertained by a Magistrate under Section 195 (1), Cr. P. C., though such a complaint is entertainable under Section 190 (1) (a) of the Cr. P. Code.

6. In a case reported in Meher Singh v. Emperor, AIR 1933 Lah 884 it was held by Coldstream, J. that although in cases under Section 225-B the proper person to make the complaint is the officer from whom the escape or rescue has been effected, still a complaint by another person aware of the facts is not a nullity. In such a case either Section 195 or Section 476, Cr. P. C. has no application but a Magistrate is competent to make a complaint as a common informer.

7. This point appears to have been urged in a case reported in Virindra Kumar Satyawadi v. State of Punjab, (S) A I R 1956 S C 153 and their Lordships observed :

'It has no doubt been held that Section 476 must be taken to be exhaustive of all the powers of a Court as such to lay a complaint, and that complaint hied by it otherwise than under that section should not be entertained. But there is abundant authority that Section 476 does not preclude the officer presiding over a Court from himself preferring a complaint, and that the jurisdiction of the Magistrate before whom the complaint is laid to try it like any other complaint, is not taken away by that section.'

While thus observing their Lordships made reference to AIR 1933 Lah 884, Emperor v. Nanak Chand, AIR 1943 Lah 208 and A I R 1947 All 139 stated above and held :

'There is thus no legal impediment to a returning officer filing a complaint under sections 181 and 182 as provided in Section 195 (1) (a) and charging the accused therein with also an offence under Section 193.'

Though Section 193 finds place in Section 195 (b) and as such the procedure under Section 476 has to be followed, in view of the aforesaid position of law, there cannot be any dispute that it was open to the Court to file a complaint under Section 187 or even under Section 409 :if such a case could be made out on evidence. On this point, however, the Courts below took the view that the pleader Commissioner sent at the first instance, was wrong in allowing the petitioner and his men to go inside the shop-roomand to meddle with the articles at the time of verification and therefore the chances of pilferage by the petitioner or his men cannot be ruled out. The appellate Court was also not satisfied that the plaintiff was called upon by any written notice to be present at the spot and to give necessary assistance to She pleader-commissioner, though there is some evidence to show that the plaintiff was watching the whole thing from a distance. Thus, the Courts below were not satisfied that a prima facie case had been made out to accord necessary sanction for the prosecution of the plaintiff.

8. Great reliance was placed on the evidence adduced by both the parties, but it is significant that neither the plaintiff nor the defendant has come to the box From a perusal of the evidence, it cannot be said that the findings of the Courts below are unsupported by the evidence. It is well settled that it is not open to the High Court, in exercise of its revisional jurisdiction under Section 115, C. P. C., to question the findings of fact recorded by the subordinate Courts. Section 115, C. P. C. applies to cases involving irregular exercise or non-exercise of jurisdiction or to an illegal assumption of jurisdiction by a Court and is not directed against conclusions of law or fact in which the question of jurisdiction is not involved : see Manindra Land and Building Corporation v. Bhutnath Banerji, AIR 1964 S C. 1336.

9 In sanctioning the prosecution in cases of this nature the relevant consideration is whether it is expedient in the interests of justice that an enquiry should be made and a complaint filed. That involves a careful balancing of many factors and where the lower Court has scrutinised the evidence and has come to certain conclusion on the materials on record and the said conclusion is found to be reasonable, it is not desirable to interfere with that conclusion : M.S. Sheriff v. State of Madras, AIR 1954 S C 397.

10. Apart from the filing of the complaint it is still open to the trial Court, to find out in course of the hearing if the plaintiff has in fact misappropriated any of the articles entrusted to him and to ultimately saddle him with the responsibility for the same and to pass necessary orders to recompense the petitioner. But that is a matter with which we are not concerned in these proceedings.

11. In view of the aforesaid discussions it must be held that the Civil Revision is without any merit and it must accordingly be dismissed, but under the circumstances parties to bear their own costs so far as this Court is concerned.


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