1.This is an appeal by Abdul Shakoor against his conviction under Section 211, Penal Code.
2. The facts of the case are not in dispute and may be briefly narrated.
3. Abdul Shakoor's brother Saddiq went with a number of persons towards Barmer in order to buy and sell sheep and goats. Abdul Sattar, Mohammad Husain, Chhotu, Sharif and Kalu were the persons who had gone with Saddiq. It appears that these persons returned about the end of October, or beginning of November, 1947 without Saddiq. This naturally caused anxiety to Abdul Shakoor, and he made enquiries as to why his brother had not returned. As a result of these enquiries, he made a complaint Ex. P1 to the Inspector General of Police of the former covenanting State of Jodhpur on 15th November 1947. In the complaint, after narrating the facts which I have mentioned above, Abdul Shakoor said that he made enquiries from Abdul Sattar & he told him that he did not know where Saddiq had gone. Thereafter, search was made for Saddiq; but he was not found. Consequently, Abdul Shakoor made enquiries from others, namely Chhotu, Sharif and Kalu, and they told him that Abdul Sattar had struck Saddiq on the ribs at night at Bankli and Saddiq had fallen down unconscious. Thereafter, these people had gone to sleep and did not know what Abdul Sattar did to Saddiq. As Saddiq did not appear and had not even been found on search, Abdul Shakoor made this complaint and expressed his suspicion in these terms-
'I strongly suspect that Abdul Sattar had hit Saddiq with a lathi, as a result of which Saddiqdied and Abdul Sattar had buried the bodysomewhere.'
Abdul Shakoor prayed for investigation in the matter.
4. This complaint was only against Abdul Sattar, but the police arrested both Abdul Sattar and his son Mohammad Husain, and started investigation. Before, however, the investigation could be completed, Saddiq came back from wherever he had gone, and the case against Abdul Sattar and Mohammad Husain was dropped. Thereupon, a complaint under Section 211, Penal Code was made against Abdul Shakoor, and he was convicted by the Additional Sessions Judge, Jodhpur.
5. The main argument in this case on behalf of the appellant is that the prosecution has failed to prove all the ingredients of an offence under Section 211, Penal code. The relevant portion of that section is as follows:
'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...........'
A perusal of this section shows that there are three ingredients which the prosecution has to prove before it can succeed in bringing home a charge under this section against any accused. These are (1) intention to cause injury to any person, (2) institution or causing of institution of a criminal proceeding or false charge with respect to the commission of an offence, (3) knowledge that there is no just or lawful ground for such proceeding or charge.
6. So far as the first two ingredients are concerned, they are, in my opinion, clearly present in this case, and learned counsel for the appellant also does not urge that those two ingredients have not been proved. His main contention is that the third ingredient has not been proved. He urges that it is the duty of the prosecutionto prove in a case under Section 211, Penal Code that the person, who had made the false charge, knew that there was no just or lawful ground for such charge. I am of opinion that this being an ingredient of the offence contained in the definition itself, it is the duty of the prosecution to prove positively that the person making the false charge knew that there was no just or lawful ground for such charge. A false charge may be made in two circumstances -- (1) the person making the charge may come forward and say that he had himself seen the offence being committed, or(2) he may say that he was making the charge on the basis of information received by him.If the charge is made on the basis of personal knowledge of the person making the charge, it would not be difficult for the prosecution to show that there was no just or lawful ground for such charge, if it is able to prove that no such offence was ever committed. That fact alone would be sufficient to show that the person concerned had no just or lawful ground for the charge. But where the charge is made on information supplied to the informant, different considerations arise, and the mere fact that the offence was never committed is not enough to establish that the person making the charge had no just or lawful ground for such charge. If the mere fact that no offence was committed were enough for the purpose, it would block a large source of information to the police where crimes may be suspected. In such cases, sometimes the suspicion may prove to be incorrect. But that thing itself should not be sufficient to make the person informing the police on suspicion liable to prosecution under Section 211, Penal Code. It seems to me that it was for the purpose of safeguarding this channel of information to the police that the words 'knowing that there is no just or lawful ground for such proceeding or charge' were put in Section 211, Penal Code. Therefore, if the charge is made on the basis of information supplied to the person making the charge, two further considerations arise which might go to prove that the person concerned knew that there was no just or lawful ground for such charge. In the first place the person making the charge may have been supplied with a certain information; but in his complaint or report to the police he says falsely that he was supplied with certain other information which on the face of it, justifies his making the charge. In such a case, it is the duty of the police, if they know who the informant of the person making the charge was, to produce that informant so that it may be known what was the information which was given to the person making the charge. The present is the case where the charge has been made on the basis of information supplied to Abdul Shakoor. He has mentioned the names of persons who supplied him the information, on the basis of which he made the charge. It was, therefore, the duty of the prosecution to examine these persons, if the case of the prosecution was that the information given to Abdul Shakoor was different from what he had put down in Ex. P1. I shall deal with this matter further when I deal with the evidence in this case. The other way, in which the prosecution can show that the person making the charge knew that there was no just or lawful ground for it, would be to show that, on the basis of the facts put down in the report or complaint making the charge, no person of ordinary prudence would make such a charge. A person may in good faith make a charge, which is subsequently found to be false, believing that thereare good grounds for making the charge. In such a case he does not commit: an offence under this section as it is for the prosecution to show that the person making the charge knew that there was no just or lawful ground for such a charge.
7. I may in this connection refer to three cases. In --'Hicks v. Faulkner', (1878) 8 QBD 167 the English technical phrase 'without reasonable or probable cause', which is equivalent to the words used in this section, namely, 'knowing that there is no just or lawful ground for such proceeding or charge' came to be interpreted. Hawkins J. at page 171, gave the following meaning to the words 'without reasonable or probable cause' -
'An honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accused to the conclusion that the person charged was probably guilty of the crime imputed.'
This, if I may say so with respect, should also be the interpretation put on the relevant words in this section.
8. The next case is -- 'Murad v. Queen Empress, 29 Pun Re 1894 (Cr) p. 95. Plowden S. J. made the following observations in this connection-
'Unless the person making a charge actually knows that there is no just or lawful ground for it, he is not guilty of the offence, and cannot properly be convicted of it. It is not enough to find that he has acted in bad faith, that is, without due care or inquiry, or that he has acted maliciously, or that he had no sufficient reason to believe or did not believe the charge to be true. The actual falsity of the charge, recklessness in acting upon information without testing it, or scrutinising its sources, actual malice towards the persons charged, these are all relevant evidence, more or less cogent, but the ultimate conclusion must be, in order to satisfy the definition of the offence, that the accused knew that there was no just or lawful ground for proceeding. It may be difficult to prove this knowledge, but however difficult it may be, it must be proved, and unless it is proved the informer must be acquitted.'
9. The last case is -- 'Hassan Mirza v. Mt. Mahbuban, 18 Cal WN 391. It was held in that case that it was the duty of the prosecution in a case under Section 211, Penal Code to prove by satisfactory evidence that the charge was wilfully false to the knowledge of the maker of the charge.
10-12. I now turn to consider whether on the facts of this case, the prosecution has proved that the appellant Abdul Shakoor knew that there was no just or lawful ground for making the charge he had made. This is not a case where the alleged offence was committed in the presence of Abdul Shakoor, and therefore the mere fact that no such murder took place is not sufficient to show that Abdul Sakoor made the charge without just or lawful ground. Here the charge was made on information supplied to Abdul Shakoor by certain persons whom he named in his complaint to the Inspector General of Police. The first question that arises therefore, is whether the facts, as given in the complaint Ex. P1, justify the appellant in making the charge which he did. It seems to me that if the facts, which are given in Ex. P1, are correct and the information, which was given to Abdul Shakoor, was what he has put down in it, he was justified in suspecting thatSaddiq had been done away with by Abdul Sattar. At any rate, it, cannot be said that, if the facts are as given in Ex. P1, Abdul Shakoor could not honestly believe in the guilt of Ablul Sattar, for lie might have been convinced on reasonable grounds of the existence of a state of circumstances, which assuming it to be true, would reasonably lead any prudent and cautious man placed in his position to conclude that Abdul Sattar had probably committed the crime. It was, therefore, for the prosecution to prove that the facts on which Atadul Shakoor said that he came to suspect that murder had been committed, and which he said he had received from Chhotu, Sharif and Kalu, were not correct in the sense that Chhotu, Kalu and Sharif had told him something different from which he could not possibly come to the conclusion, that Abdul Sattar had, in all probability, murdered Saddiq. For that purpose the prosecution should have examined Chhotu, Sharif and Kalu; but the prosecution did not do so and merely relied upon certain formal evidence to prove certain admitted facts, namely that Ex. P1 had been sent to the Inspector General of Police, that Saddiq never died and appeared during the course of the investigation, and that Abdul Sattar and his son Mohammad Husain were arrested in consequence of the charge laid against them by Abdul Shakoor. These facts were certainly proved; but they are by themselves insufficient to show that Abdul Shakoor knew that there was no just or lawful ground for making the charge. So far, therefore, as the prosecution is concerned, it completely failed to prove that Abdul Shakoor had no just or lawful ground for making the charge. (After considering the evidence of Kalu relied on by the prosecution and holding that Kalu was an unreliable witness, his Lordship concluded:)
On a careful consideration, therefore, of the evidence in this case, I am of opinion that the prosecution has failed to discharge the heavy burden that lay on it to prove that the appellant knew that there was no just or lawful ground for making such a charge. As a matter of fact, the prosecution did not even attempt to discharge its burden, and it was only the accidental circumstance that Kalu was produced for the defence that has enabled the prosecution to say something on this point. I am, therefore, of opinion that the case against Abdul Shakoor falls, as it has not been proved that he had no just or lawful ground for making such a charge.
13. The appeal is hereby allowed, and AbdulShakoor is acquitted. He is on bail and need notsurrender.