1. This is an application asking this Court to revise an order of the 2nd class Magistrate of Puttur disallowing a preliminary objection of the accused to his prosecution for an offence under Section 182 of the Indian Penal Code and the order of the Sessions Judge of South Canara refusing to recommend to this Court the quashing of that order.
2. The facts necessary for the disposal of this appeal are briefly as follows:
On the 5th February 1907 the accused made a complaint to the Police that certain articles had been stolen from his house. On the 4th February the Police made an inquiry in consequence and at that inquiry the accused repeated his complaint and said that he suspected the complainant as the person who committed the theft. It was found that no theft took place at all in the accused's house and that his complaint was false. The complainant then made a complaint in which he alleged the information laid by the accused on the 5th February and on the 11th February 1906 was false. The case was tried by the Deputy Magistrate of Puttur and a charge was framed against the accused under Section 211 of the I.P.C. in that he instituted a false charge of theft against the complainant on the 11th February 1907. He was convicted of the offence and the conviction was affirmed by the Sessions Court but it was set aside by this Court in Cr. R.C. 405 of 1909. This Court observed 'Both Courts have found that there was no theft and we assume that that finding is correct and that the information given to the Police was false to the knowledge of the accused, that is to say, that he knowing that no theft had been committed, stated that he suspected two men who were his enemies. This would clearly amount to an offence under Section 182 I.P.C., but in our opinion the accused has made no charge against the complainant within the meaning of Section 211 I.P.C. It should be stated that before the presentation of the present complaint, the complainant had applied to the Superintendent of Police, for sanction to prosecute the accused for an offence under Section 182 I.P.C. but it was refused. After the acquittal of the accused by the High Court the complainant applied again to the Superintendent of Police for sanction and obtained it.
3. In the present proceedings the accused is charged with an offence under Section 182 I.P.O. of which offence the accused was clearly guilty according to the opinion of this Court in Cr. R.C. 405 of 1909. The preliminary objection to the prosecution with which we are concerned in this petition is that the acquittal of the accused by this Court in Cr. R.C. 405 of 1909 constitutes a bar to the present proceedings under Section 403 (1) of the Cr.P.C. The 2nd class Magistrate disallowed this objection on the ground that the offence contemplated by Section 182 is not the same as that contemplated by Section 211 I.P.C. The two offences may not be the same as observed by him because under Section 182 it is necessary that the person who gives information to a public servant must know or believe it to be false. Under Section 211, on the other hand, the person who institutes a criminal proceeding against another need not know it to be false; it is sufficient that he should know that there is no just or lawful ground for such proceeding or charge against the person. But this finding is not sufficient for disposing of the objection. A bar under Section 403 Criminal Procedure Code, operates, not only where a person has been tried for an offence and convicted or acquitted of it and is sought to be tried again for the same offence, but also where he is sough1; to hi tried 'on the same facts for any other offence for which a different charge from the one made against him might have been made on the same facts under Section 236 or for which he might have been convicted under Section 237'.
4. Now, in this case the facts on which the accused was charged in the previous case were that he gave false information on the 5th February 1907 and that on the 11th February he repeated this information and stated that he suspected the complainant of the offence disclosed by the information. The prosecution case was that there was no theft committed at all as alleged by the accused. On that footing it was open to the Deputy Magistrate who tried the previous case to frame a charge against him under Section 182 as well as a charge under Section 211, I.P.C. Section 236 of the Criminal Procedure Code enacts that 'If a single act or a series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.' Now, on the facts alleged it was doubtful whether the accused was guilty of making a false charge under Section 211 I.P.C., because it was not clear that his information would amount to the making of a charge against the complainant so as to bring it under that section. But those facts, as pointed out by the High Court in Cr. R.C. No. 405 would clearly bring the act of the accused under Section 182 I.P.C.
5. We are inclined to think that Section 236 would be applicable to a case where on the same facts it is doubtful whether the accused committed one offence only or both that offence and another. Dr. Swaminadhan appearing for the Crown contends that the case is one falling under Section 235 Clause (1) and not under Section 236. The former section runs in these terms 'If, in one series of acts, so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence' Section 403 Clause (1) provides that 'A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub-section (1)'. It seems to us that Section 235(1) applies to cases where on some of the facts so connected together as to form the same transaction one offence may be charged against an accused person, and on other facts forming part of the series of acts another offence may be charged against him. Illustration (b) to Section 403 is an instance of this :--A is tried upon a charge of murder and acquitted...but it appears from the facts that A committed robbery at the time when the murder was committed; he may afterwards be charged with and tried for robbery. Section 235(1) seems to us to be inapplicable when the accused is sought to be charged with another offence on the identical facts on which he was charged before with one offence. Clause 4 of Section 403 supports this contention. In Suresh Chandra Sinha v. Banku Sadhu Khan (1905) 2 C.L.J. 622 the accused was first charged with an offence under Section 447 I.P.C. and after he was acquitted of it owing to the non-appearance of the complainant he was again charged with offences under Sections 447, 504 and 506 I.P.C. on the same facts. Mookherjee and Casperz JJ. held that Section 403(1) barred the second trial. The learned Judges say 'The record shows that the second trial is being held in respect of all the offences alleged on the previous occasion including the offence under Section 447 I.P.C. The cases relied on by the Magistrate are distinguishable. The order of the Magistrate directing the issue of processes under Sections 447, 504 and 506 I.P.C. is therefore set aside'. In Queen Empress v. Errant Reddi I.L.R. (1885) M. 296 the learned Judge held the same view. There the accused was first charged with committing mischief by cutting certain branches from a tree claimed by the complainant and acquitted. He was again charged with the offence of theft on the same facts. The learned Judge held that the second trial was not maintainable. He observed that a charge of theft might also have been made under Section 236 and that 'Clause 2 of Section 403 does not apply to this case be cause the imputed offences of mischief and theft were not distinct offences, nor was there a series of acts but one act or transanction only--the cutting of the tree and the removal of the branches cut'. In Sharbekhan Gohain v. The Emperor (1905) 10 C.W.N. 518 Parjiter and Woodroffe JJ. held that a person who was tried for offences under Sections 201 and 202 I.P.C. and acquitted could not be tried again for an offence under Section 176 on the same facts. They say 'Now this case does not appear to us to come under Section 235, Sub-section (1), because the offence of which he has now been convicted is based on the very same facts on which the previous charge under Section 202 was based. The case comes rather under Section 235, Sub-section (2) which lays down that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished the person accused of them may be charged with and tried at one trial for, each of such offences. Thus a charge under Section 176 I.P.C. might have been made at the former trial on the very same facts. It does not therefore come within Sub-section 2 of Section 403 Cr.P.C. and is not therefore excluded from the operation of Sub-section 1 of that section. Now in this case the falsity of the statement that there was a theft was a part of the charge with respect to the institution of false proceeding under Section 211 I.P.C., and if there was no theft at all he must have necessarily known that his information that it took place was false. The present complaint under Section 182 I.P.C. is therefore on the same facts as were necessarily involved in the previous charge. Dr. Swaminadhan contends that although the false statement of the 11th February 1907 of the occurrence of theft might be a part of the facts included in the charge in the previous case the accused's information of the 5th February might be made the subject of a separate charge under Section 235(1). Bat as already observed the information of the 5th was also complained of in the previous case, though the charge framed after the evidence for the prosecution was recorded referred only to the repetition of the information on the 11th. The present complaint therefore is based on a part of the facts which were the foundation of the previous proceedings. Besides the information given by the accused on the two days the 5th and 11th February must in reality be regarded as the same. The re-presentation of an information given to a public servant may be said to constitute a distinct act of libel but could hardly be said to be a different information.
6. Dr. Swaminadhan has urged another contention in support of his argument that Section 403(1) cannot be a bar to the present proceedings. He urges that Clause 4 of Section 403 is applicable to the case. That clause provides 'A parson acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with and tried for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried, was not competent to try the offence with which he is subsequently charged.' The learned counsel's argument is that in as much as at the time of the previous trial the complainant had not obtained the sanction of the Superintendent of Police which was necessary for a complaint of an offence under Section 182 I.P.C., the Court which held the previous trial was not competent to try the offence with which the accused is now charged. We are of opinion that the clause refers to the character and status of the tribunal when it refers to competency to try the offence, ns shown in the illustrations (F) and (G) to the section. The District Magistrate was perfectly competent to try a charge under Section 182 I.P.C. A sanction under Section 195 Cr.P.C., is not a condition of the competency of the tribunal; it is only a condition precedent for the institution of proceeding before the tribunal. No authority has been cited to us by Dr. Swaminadhan in support of his argument. In King-Emperor v. Kishna Aiyar I.L.R. (1901) M. 641 the learned Chief Justice and Davies J. held that the circumstance that the previous case was tried by a Judge with assessors while the offence sought to be inquired in the subsequent case was triable by a jury would not exclude the applicability of Section 403(1). The learned Judges pointed out that 'illustrations (f) and (g) show that the words 'was not competent to try' meant 'had no jurisdiction to try'. It was the duty of the prosecution in the present case to obtain the required sanction for the trial of an offence under Section 182 I.P.C. We are of opinion that Section 403(4) is not applicable to this case.
7. The result is that, in our opinion, Section 403(1) constitutes a bar to the proceedings now taken against the accused and we therefore direct the 2nd Class Magistrate to discharge the accused.