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Kishan Chand Sood Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 519 of 1968
Judge
Reported inILR1971Delhi231
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195(1); Indian Penal Code (IPC), 1860 - Sections 182
AppellantKishan Chand Sood
RespondentState
Advocates: D.R. Sethi,; B. Dayal and; D.C. Mathur, Advs
Cases ReferredChandra Nag v. State A.I.R.
Excerpt:
.....to a larger bench. 1948 lah 184 as well held that where the police after investigation finds the report of offence made to it to be false and recommends to a magistrate for cancellation of the report and the magistrate cancels the report, under section 173, the magistrate acts merely as an administrative or ministerial officer and not as a court and to such a case section 195 has no application. , who delivered the judgment of the court after considering the case law on the subject came to the finding that the preponderance of authority supported the view that where a false charge made against a person in a report to the police was not the subject matter of any judicial proceeding in court, section 195(l)(b) had no application and it was open to the police to prosecute him under..........to have been committed in or in relation to any proceedings in the court of the sub-divisional magistrate, sadar bazar. section 195(l)(b) of the code was, thereforee, not applicable and even if the complaint made by a police official discloses an offence under section 211 of the indian penal code the complaint can be tried. the revision is, thereforee, dismissed. the chief judicial magistrate shall make over the complaint to a judicial magistrate for its being tried in accordance with law. the petitioner should appear before the chief judicial magistrate on october 12, 1970.
Judgment:

Jagjit Singh, J.

(1) The short question involved in this case is as to whether the complaint filed against Kishan Chand Sood by Shri Devi Das Sharma, Station House Officer of the Roshanara Police Station, Delhi, purporting to be under section 182 of the Indian Penal Code, can be proceeded with or the proceedings should be quashed.

(2) On January 30, 1967 Kishan Chand Sood, hereafter, called the petitioner, had made a report in Police Station Roshanara Delhi, according to which that day he had been caused injuries by Suman Lal, Narinder Kumar and Tej Kaur. The report was written in the Roznamcha register and after the petitioner was got medically examined a case (F.I.R. No. 51) under section 324 of the Indian Penal Code was registered against the alleged assailants.

(3) As a result of investigation the report made by the petitioner was found to be false. On a report under section 173 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') the SubDivisional Magistrate, Sadar Bazar, accepted the police recommendation and through his order dated September 21, 1967 approved the cancellation of the case.

(4) The same day that the Sub-Divisional Magistrate approved cancellation of the case, he also allowed the police, under section 155(2) of the Code, to investigate the offence under setion 182 of the Indian Penal Code which the police considered to have been committed by the petitioner by giving information which he knew or believed to be false intending thereby that the police officials shall use their lawful powers to the injury or annoyance of the persons who were alleged to have caused injuries to him. On June 26, 1968 a complaint was made on behalf of Inspector Devi Das Sharma, Station House Officer Roshanara Police Station, Delhi. Proceedings regarding the complaint commenced in the Court of Shri Sewa Ram, Magistrate First Class, though in one of his orders he referred to it as a challan.

(5) On behalf of the petitioner a contention was raised before the trial Magistrate, on September 12, 1968, that as the complaint made by the police disclosed the commission of the more serious offence under section 211 of the Indian Penal Code so cognizance of the complaint could not be taken as no complaint in writing had been made by the Sub-Divisional Magistrate who had cancelled the case under section 324 of the Indian Penal Code.

(6) The trial Magistrate, however, did not consider that any complaint was necessary to be made by the Sub-Divisional Magistrate. The petitioner challenged the correctness of that view by filing a revision to the Court of Session. Shri J. D. Jain, Additional Sessions Judge, however, dismissed the revision on October 7, 1968. Thereafter the petitioner moved the present petition.

(7) On the case being put up before Ansari, J., the learned Judge observed that the offence alleged to have been committed by the petitioner fell under section 211 and not only under section 182 of the Indian Panel Code and if the alleged offence could be considered to have been committed in or in relation to any proceedings in the Court of the Sub-Divisional Magistrate who had cancelled the case under section 324 then the proceedings instituted against the petitioner will have to be quashed as 'sanction of the court is necessary and as admittedly no such sanction was obtained'. Further as there is conflict of judicial opinion on the question as to whether a Magistrate in cancelling a report found by the police after investigation to be false and which is recommended for cancellation acts merely as an administrative or ministerial officer or as a 'court', he referred it to a larger Bench. It was under these circumstances that the case was heard by us.

(8) Under clause (a) of sub-section (1) of section 195 of the Code no Court is to take cognizance of any offence punishable under sections 172 to 188 of the Indian Panel Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. Clause (b) of that sub-section is in the following terms :-

'195.(1) No Court shall take cognizance (a) * * * (b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206. 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.'

(9) If a person 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 to use his lawful power as a public servant to the injury or annoyance of any person, he commits an offence under section 182 of the Indian Panel Code. The more serious offence under section 211 of the Indian Penal Code is committed when any one with intend to cause injury to a person, institutes or causes to be instituted any criminal proceedings against that person, or falsely charges that person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person.

(10) Undoubtedly a case may fall both under section 182 and section 211 of the Indian Penal Code. But where anyone gives information to a public servant which amounts to a false charge against a particular person or persons and it may appear that the information was given knowing that there was no just or lawful ground for giving it, the proper course is to proceed against him for the graver offence under section 211 of the Indian Penal Code. If, however, a complaint under section 195(1)(b) of the Code is a condition precedent for taking cognizance of the offence under section 211 of the Indian Penal Code, jurisdiction cannot be assumed by proceeding only under section 182 of the Penal Code. In Durgacharan Naik and others v. State of Orissa : 1966CriLJ1491 it was held by their Lordships of the Supreme Court that the provisions of section 195 cannot be evaded by resorting to devices or camouflage and an instance was also mentioned. It was observed that 'merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it'. It, thereforee, follows that if the offence in substance fell under section 211 and had been committed in or in relation to any proceedings in the court of the Sub-Divisional Magistrate then a complaint in writing of that court or of some other court to which that court was subordinate was a condition precedent for taking cognizance of the alleged offence and that requirement of section 195(1)(b) of the Code could not be evaded by instituting prosecution for an offence under section 182 of the Penal Code on the complaint of the police officer to whom the alleged false report was made.

(11) It was submitted by Shri D. R. Sethi, learned counsel for the petitioner, that a Magistrate acts judicially when on a report under section 173 of the Code he accepts the recommendation of the police and cancels the report which on investigation was found to be false and consequently the person who had brought a false charge by making the report to the police can be considered to have committed an offence under section 211 of the Indian Penal Code in relation to proceedings in the Court of that Magistrate. It was, thereforee, contended that a complaint in writing of the Court of the SubDivisional Magistrate, Sadar Bazar, was a condition precedent to cognizance being taken of the offence alleged to have been committed by the petitioner.

(12) It is true that there is conflict of opinion on the point as to whether a Magistrate cancelling the report made to Police which is found on investigation to be false acts merely as an administrative or ministerial officer or judicially. In Uma Singh and others v. Emperor : AIR1933Pat242 and Brahm Dev v. Emperor A.I.R. 1938 Lah 469 the view taken was that while cancelling the report, under provisions of section 173 of the Code, the Magistrate acts merely in administrative capacity and the order made is an administrative order and not a judicial order. The Full Bench of the Lahore High Court in Emperor v. Hayat Fateh Din A.I.R. 1948 Lah 184 as well held that where the police after investigation finds the report of offence made to it to be false and recommends to a Magistrate for cancellation of the report and the Magistrate cancels the report, under section 173, the Magistrate acts merely as an administrative or ministerial officer and not as a Court and to such a case section 195 has no application. Some of the other cases in line with that are Mt. Raji w/o Khuda Baksh and others v. Allaudin M. Samo, Mukhtiarkar A.I.R. 1939 Sind 65, Pukhraj v. Sheshmal and Attam Parkash v. State 1962 P.L.R. 279. For the contrary view a reference may be made to S. P. Jaiswal v. The State and another 1953 P.L.R. 77, in which case, however, there was no discussion apart from an observation that the order of the Magistrate is a judicial order. The learned counsel for the petitioner also relied upon Bajaji Appaji Kote v. Emperor A.I.R. 1946 Bom 7, State v. Vipra Khimji Gangaram A.I.R. 1952 Sau 67 and E. Pedda Subba Reddy and others v. State and another : AIR1969AP281 .

(13) It appears to us that for purposes of this case it is unnecessary to express any opinion on the question whether the order of a Magistrate under section 173 of the Code cancelling a report on the recommendation of the police after investigation that it is false, is an administrative or a judicial order.

(14) It would be noticed that a complaint of the Court of Sub-Divisional Magistrate, Sadar Bazar, for prosecuting the petitioner for an offence under section 211 would have been necessary, as required by section 195(l)(b) of the Code, if the alleged offence had been committed in or in relation to any proceedings in that Court. The SubDivisional Magistrate did not take cognizance of the case against Suman Lal, Narinder Kumar and Tej Kaur by differing from the recommendation of the police. The only action taken by him was to accept the recommendation of the police for cancellation of the report which on investigation had been found to be false. Shri Bishamber Dayal, learned counsel for State, urged that even if the offence alleged to have been committed by the petitioner fell under section 211 of the Indian Penal Code still it could not be said to have been committed in or in relation to any proceedings in the court of the Sub-Divisional Magistrate.

(15) A Division Bench of the Lahore High Court comprising of Sir Shadi Lal, C.J. and Agha Haider, J., in Muhammda v. Emperor 29 Cr. L.J. 605 took the view that where a person was not put upon his trial and nor were any proceedings taken against him before any Magistrate, it cannot be said that making of a false report to the Police amounted to committing an offence under section 211 'in or in relation to any proceeding in Court'. In the Full Bench case of Hayat Fateh Din A.I.R. 1948 Lah 184 the view taken in the above mentioned case was approved. Teja Singh, J., who delivered the judgment of the court after considering the case law on the subject came to the finding that the preponderance of authority supported the view that where a false charge made against a person in a report to the police was not the subject matter of any judicial proceeding in court, section 195(l)(b) had no application and it was open to the police to prosecute him under section 211 of the Indian Penal Code, The following observations were as well made :-

'Ido not subscribe to the proposition that before a charge can be regarded as having been committed in relation so a proceeding in Court the proceeding must actually be pending at the time the charge is made because if the charge is made with the clear intention of initiating proceedings in Court and the proceedings actually do take place in consequence of the charge, it would certainly be in relation to proceedings. I, however, agree that if the particular charge does not result in any proceedings in Court, S. 195(l)(b) cannot apply. The question whether when the charge is made the maker of the charge had the intention of initiating proceedings in Court is one of fact and must be decided in the light of evidence and the circumstances of each case. The mere fact that the charge is made in a report to the police does not necessarily prove such intention.'

(16) Reference may also be made to Kochamveli. Kunhammed v. State of Kerala : AIR1966Ker242 and Satish Chandra Sadhu Khan and others v. Balaram Banerjee 1968 Cr.L.J. 1534,

(17) Shri Sethi cited Bajaji Appaji Kote v. Emperor A.I.R. 1946 Bom (7). In that case, however, besides report to the police a regular complaint was also filed on the same facts before a Magistrate, which ended in the discharge of the accused. That case was, thereforee, distinguishable. In Hayat Fateh Din's case the case of Bajaji Appaji Kote was discussed but was not followed. The facts of Hrishikesh Nag lswar Chandra Nag v. State A.I.R. 1965 Tri 13 on which reliance was as well placed, were not at per with facts of the present case. In the case before the learned Judicial Commissioner the proceedings belore the Magistrate included dealing with bail applications and remand proceedings. Similarly in a more recent case, E. Pedda Subha Reddy and others v. State and another : AIR1969AP281 , referred to by the petitioners counsel, one of the persons against whom a false report was made on being produced before a Judicial Magistrate was remanded to judicial custody and was released after investigation by the C.I.D. Police showed that he was not concerned with the alleged murder,

(18) In our opinion on the facts of the present case the alleged offence under section 211 of the Indian Penal Code cannot be considered to have been committed in or in relation to any proceedings in the Court of the Sub-Divisional Magistrate, Sadar Bazar. Section 195(l)(b) of the Code was, thereforee, not applicable and even if the complaint made by a police official discloses an offence under section 211 of the Indian Penal Code the complaint can be tried. The revision is, thereforee, dismissed. The Chief Judicial Magistrate shall make over the complaint to a Judicial Magistrate for its being tried in accordance with law. The petitioner should appear before the Chief Judicial Magistrate on October 12, 1970.


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