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The Sessions Judge of the Tinnevelly Division Vs. Sivan Chetty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Judge
Reported in1Ind.Cas.187
AppellantThe Sessions Judge of the Tinnevelly Division
RespondentSivan Chetty
Cases ReferredChinna Ramana Gowd v. Emperor
Excerpt:
penal code (act xlv of 1860), section 211 - information given to village magistrate or munsif (village headman) and communicated by him to police--information found to be false--conviction of informant under section 211, i.p.c. - - as an illustration of the former it points out that a charge made to the judge of a civil court or to public officers of other kinds, in order to obtain sanction to prosecute may well be a charge 'but is not the institution of criminal proceedings'.it further points out that an aggrieved person may seek to put the criminal law in motion either by making a charge or in the language of the code giving information to the police (section 154) 'or he may' lay a charge, or as the code calls it, a complaint (section 191) before a magistrate 'the court did not refer..........court did not refer to the case of a complaint or information of certain grave offences given to a village magistrate, as it was not necessary for the purpose of the question before the court, but the whole reasoning of the case is, we think, as applicable to such information as to information given to the police under section 154. under section 45, criminal procedure code, the village magistrate or, as he is called in the section, the 'village headman,' is bound to '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 obtain respecting' certain grave offences of which dacoity is one. in point of fact in this presidency the complaint or information to the village magistrate is.....
Judgment:

Benson and Munro, JJ.

1. In this case the accused made a complaint of dacoity against certain persons to the Village Munsif, who gave information to the Station House Officer, who then came to the village and took a statement from the accused in which the accused repeated the charge of dacoity against the persons named in his complaint to the Village Munsif. The police referred the charge as false, and, with the sanction of the Superintendent of Police, the person who made the complaint of dacoity has been proceeded against for an offence under Section 211, Indian Penal Code, and has been committed to the Sessions. The question is whether the facts alleged against him amount in law to an offence under Section 211, Indian Penal Code. The matter is by no means free from difficulty, and the decisions in regard to it are conflicting. We are, however, of opinion that the question mast be answered in the affirmative. The section runs 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 punished as prescribed in the section.

2. We think that in the present case the complaint to the Village Munsif was a 'charge' of dacoity and was also the institution of criminal proceedings against the persons named within the meaning of Section 211. The Criminal Procedure Code does not define what constitutes the making of a 'charge' of an offence or what amounts to the 'institution of criminal proceedings'. But, in our opinion, a false 'charge' in this section must not be understood in any restricted or technical sense, but in its ordinary meaning, of a false accusation made to any authority bound by law to investigate it or to take any steps in regard to it, such as giving information of it to superior authorities with a view to investigation or other proceedings, and the institution of criminal proceedings includes the setting of the criminal law in motion. The nature of both expressions, and the difference between them is explained in lucid terms in the decision of the Pull Bench of the Calcutta High Court in the case of Karim Buksh v. Queen Emp, 17 C.c 574. It points out that there may be a charge which does not amount to the institution of criminal proceedings 'and there may be criminal proceedings which do not necessarily involve a charge' of any offence. As an illustration of the former it points out that a charge made to the Judge of a Civil Court or to public officers of other kinds, in order to obtain sanction to prosecute may well be a charge 'but is not the institution of criminal proceedings'. It further points out that an aggrieved person may seek to put the criminal law in motion either by making a charge or in the language of the Code giving information to the Police (section 154) 'or he may' lay a charge, or as the Code calls it, a complaint (section 191) before a Magistrate '. The Court did not refer to the case of a complaint or information of certain grave offences given to a Village Magistrate, as it was not necessary for the purpose of the question before the Court, but the whole reasoning of the case is, we think, as applicable to such information as to information given to the Police under Section 154. Under Section 45, Criminal Procedure Code, the Village Magistrate or, as he is called in the section, the 'village headman,' is bound to '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 obtain respecting' certain grave offences of which dacoity is one. In point of fact in this Presidency the complaint or information to the Village Magistrate is ordinarily the first step in setting the criminal law in motion in the case of the grave offences specified in Section 45. The injured person hardly ever gives information direct to the station House Officer of Police (section. 154), or makes a complaint (section 191) to the Magistrate. He almost invariably gives information, or makes his complaint, to the Village Magistrate, well knowing that the latter will report the information or complaint to the Magistrate or the Station House Officer, or to both, which latter is the regular course in this Presidency. He has, in fact, set the criminal law in motion just as effectually as if he had gone direct to the Station House Officer under Section 154 or to the Magistrate under Section 191, for the village headman is bound by law to pass on the information or complaint to those officers. The case would, of course, be different if the information or complaint was not a matter which the village headman was bound by law to pass on to the higher constituted authorities, In the matter of the Petition of Jamoona 6 C.n 620. In that case it could not be said that the criminal law was in any way set in motion. But when the information or complaint is one that the village headman is bound by law to pass on, then the language of the Full Bench in the case referred to above, is just as applicable to it as to an information given direct to the Station House Officer or a complaint to the Magistrate.

3. In the language of the Full Bench, 'whichever of these methods is adopted, the thing done by the accuser is the same, that which is called in the one case giving information, in the other making a complaint. In each case the steps that follow are governed by the Criminal Procedure Code. In each the first step taken by the accuser is ordinarily also the last, for from that time the control of the investigation or enquiry passes out of his hands into those of the constituted authorities; subject to this, that if, after an information before the police, the result of their investigation is adverse to the complainant, he may renew his complaint to the Magistrate. The procedure by information to the police is by far the more common course of proceeding, especially where any grave offence is alleged. A system similar to the present in those matters was in force when the Penal Code was passed in 1860; it was embodied in the First Procedure Code of 1861, and has been continued ever since.'

4. The village headman was part of the machinery of the law for bringing grave offenders to justice long before the Criminal Procedure Code was passed and that Code recognized, and defined his place in the machinery and imposed definite duties on him in regard to information given or complaints made to him. It is objected to this view that the Village Magistrate is not the only person who has statutory duty to give information under Section 45, Criminal Procedure Code, and that if a complaint to him can be made the basis of a charge under Section 211, information given to the other persons specified in that section can equally well be made the basis of such a charge. Legally that is so, but we see no reason to shrink from the result. In practice, however, it is only to the Village Magistrate that information is given with a view to invoking the action of the Police and superior Magistrates. But if a man made a complaint to one of the other persons having a legal obligation under that section to report to the Police or Magistrate, and did this with the intention of setting the criminal law in motion, we think that he would come not only within the terms of the section but within the mischief which, the law desired to meet. In the case of Emperor v. Jonnalagadda Venkatrayudu 28 M.k 505 in which the facts were very similar to the present, a Bench of this Court quoted with approval the remark of Mr. Mayne (Criminal Law of India, page 589, second edition): 'surely information given to A, for the purpose of being passed on to B, and which it was his bounden duty so to pass on, must be considered as having been given and intended to be given to B.' In that case this. Court also held that when the Station House Officer on receiving information from the Village Magistrate went to the village and examined the complainant, the complainant made a complaint to the Police under Section 154. The same view was taken by another Bench of this Court in an unreported case (Criminal Appeal No. 15 of 1904). A contrary view was taken in Criminal Revision Case No. 515 of 1902 (un-reported), but the case does not appear to have been argued, and the Court did not deal with the question now before us, viz., whether the information or complaint to the Village Magistrate could be regarded as a false charge or the institution of criminal proceedings. It merely held that the Police Officer was making an investigation under Section 161. In Criminal Appeal No. 30 of 1903 another Bench was 'disposed to think' that fact similar to those in the present case did not warrant a charge of an offence under Section 211, but only under Section 182, Indian Penal Code.

5. In a recent case Chinna Ramana Gowd v. Emperor 31 M. 506, another Bench of this Court after consideration of the authorities held, on facts similar to those in the present case, that the statement made to the Station House Officer could not be treated as a complaint or charge, but must be regarded as a statement made to a police officer in the course of an investigation under Section 162, Criminal Procedure Code, and could not be made the basis of a charge under Section 211, Indian Penal Code. It also held that the information or complaint to the Village Magistrate could not be regarded as a charge 'because the Village Magistrate had no power to investigate' the complaint, or as the institution of criminal proceedings, 'because in its view it was the report of the Village Magistrate not the person who made a complaint to the Village Magistrate who set the criminal law in motion. For the reasons stated at length in the earlier part of this judgment we are unable to agree with this view. We think that it does not take sufficient account of the position of the Village Magistrate as part of the criminal machinery of the administration and of the legal obligation of the Village Magistrate to take action on the information given or complaint made to him. The reasons for the decision were largely based on the case In the matter of the Petition of Jamoona 6 C.k 620, but in the latter case the complaint was made to the Station Staff Officer who was not bound by any statutory provisions to investigate it or to take any action whatever in regard to it. We do not think that such a case is an authority with regard to the present case, where the Village Magistrate is bound by law to take action and to report the information or complaint to the authorities empowered to investigate or to take cognizance of the alleged offence. It is now settled law that if an aggrieved person gives false information of an offence to the Station House Officer (section 154, Criminal Procedure Code) he may be proceeded against for an offence under Section 211 and may be liable to imprisonment for seven years. It seems unreasonable to hold that if the same person gives the same information to the Village Magistrate, knowing and intending that it shall be passed on to the Station House Officer and the superior Magistrate, he shall not be guilty of any offence under Section 211 but only of the lesser offence under section, 82, Indian Penal Code, with a liability limited to imprisonment for six months instead of seven years. The language of Section 211 does not require us to place any such limitation on its scope and we see no reason for holding that the Legislature intended it. In conclusion, it seems desirable to point out that every information of an offence does not necessarily amount to a charge of an offence. A man might give the information which he had heard from others, and without himself alleging the truth of the information. But that is not the present case. Here the person aggrieved made an accusation of dacoity against certain persons named by him, and charged them as guilty to his own knowledge. In our opinion the accused in the case before us was rightly charged with an offence under Section 211, Indian Penal Code, in regard to the information or complaint of dacoity which he laid before the Village Magistrate. We, therefore, refuse to quash the commitment, and direct the Sessions Judge to proceed to dispose of the case according to law.

Sankaran Nair, J.

6. The question is whether the commitment made under the following circumstances should be set aside.

7. Sivan Chetty the accused appeared before the Village Magistrate of Karimkulam and made a statement which was reduced to writing that certain persons therein named entered his house the previous night and committed the offence of dacoity by robbing him and the members of his family of considerable property. After stating the facts, he said I heard this read out. It is correct and signed it. The statement is attested by a witness and also signed by the Village Magistrate. There was no prayer therein for an enquiry. The Village Magistrate submitted this statement with a report of his own to the Sub-Magistrate (Exhibit B.) and sent another report to the Station House Officer (Exhibit C.) requesting him to inquire into the case. Thereupon the Station House Officer proceeded to the village and took a statement from the accused (Exhibit B.) which, the Sessions Judge rightly says, shows that it must have been recorded in answer to questions, many of them in the nature of searching cross-examination.' The Police Inspector submitted what is called a referred charge sheet to the Sub-Magistrate who agreed with the Police that the charge was false and struck the case off his file.

8. The accused is now prosecuted under Section 211 of the Indian Penal Code for instituting false criminal proceedings or a false charge. The charge is that the accused made a false complaint to the Village Magistrate and to the Station House Officer.' The Sessions Judge, being of opinion that according to a recent decision of this Court in Chinna Ramana Gowd v. Emperor 31 M. k 506, the accused has not committed any offence under Section 211, has requested the High Court to set aside the commitment. It is not denied that if the facts alleged by the prosecution are proved, the accused must be convicted of an offence under Section 182, Indian Penal Code, of giving false information. It is also admitted by the Public Prosecutor that the decision in Criminal Appeal No. 231 of 1908, Chinna Ramana Gowd v. Emperor 31 M.k 506, is directly in point. But it is argued that that decision should not be followed and the question has accordingly been referred to the Full Bench for decision.

9. I shall first consider whether the accused is liable to conviction for the statement made to the Police Officer. The Police Officer in charge of a station may investigate any cognizable case within his jurisdiction. It has, therefore, been held that a false complaint of such an offence to him would make the offender liable to conviction under Section 211, Indian Penal Code. Is this statement (Exhibit D) before us a complaint or statement given for the purpose of investigation or is it only a statement made by a witness to a Police Officer in the course of his investigation? The first information given to a Police Officer may be oral or in writing. If given orally, it must be reduced to writing, read over to the informant and signed by him (section 154). A Police Officer on receiving information shall proceed to investigate the offence (section 157) except in the cases referred to in Clause (a) of that section. He may require the attendance of witnesses. The witness shall be bound to answer' all questions, except those referred to in Section 161, put to him relating to the accused and the statement so made shall not be signed by the witness nor used as evidence. There is no obligation on his part to answer truly and it has been held that he cannot be convicted for making any false statement. Thus it is clear that the only statement which a Police Officer can ask an informant or a witness to sign is the one made by the first informant under Section 154. In the case before us the Village Magistrate and not the accused was the first informant of the Station House Officer. That information was in writing (Exhibit C). There was, therefore, nothing to be reduced to writing under Section 154. If the information is to be taken as given orally, then the statement should be taken from the Village Magistrate, the informant. I am unable, therefore, to regard the statement taken from the accused as one legally made under Section 154. It is also clear to me that it was really made under Sections 161 and 162. After receiving the information (Exhibit C.) from the Village Magistrate, the Police Officer was bound to investigate this offence under Section 157 and the examination of the accused and any other persons who may have been examined must be taken to have been made under Sections 161 and 162. To hold that this is a statement under Section 154 would be to deny the protection afforded by law to a person making a statement to the Police under Sections 161 and 162. Again, a complaint or the institution of a criminal proceeding is a person's voluntary act. He might state what he likes and no more, whereas under Section 161 a person is bound to answer questions and may have to undergo, as in this case, a searching cross-examination. It is difficult to hold Exhibit D. which contains statements, against the truth of the complainant's case to be a complaint. If the learned Judges in Emperor v. Jonnalagadda Venkatrayudu 28 M.k 505, take the contrary view, then I think they are wrong. In the case of Mallappa Reddi v. Emperor 27 M. 127 the original information was given to the Station House Officer by the accused of what the judgment treated--as the reference to Section 154 shows--as a cognizable offence.

10. Does the statement Exhibit A made to the Village Magistrate come within the scope of Section 211? The decided cases are clearly in support of our view maintained in Chinna Ramana Gowd v. Emperor 31 M.k 506 that it does not. In the matter of the Petition of Jamoona 6 C.b 620; which was the case of a complaint before a Staff Officer, found to be false after enquiry by the Military authorities the learned Judges said 'the Station Staff Officer having neither magisterial nor police powers... it seems to us that Section 211 will not apply. We do not think it is unduly refining the words of the section to say that the false charge must be made to a Court or to an Officer who has powers to investigate and send up for trial.' This case was followed and applied to the case of a complaint before a Village Munsif by Benson and Bhashyam Iyengar, JJ. in Criminal Appeal No. 30 of 1903. That was an appeal against an acquittal. The lower Court held in that case.... In the matter of the Petition of Jamoona 6 C.k 620 lays down that the false charge must be made to a Court or to an Officer who has powers to investigate. Now the Village Magistrate has no magisterial powers except in regard to petty offences. He is not a Court in respect to this offence. The charge under Section 211, cannot be sustained.' The accused though it was found he made a false charge to a Village Munsif was accordingly acquitted. On appeal the High Court held we are disposed to agree with the Head Assistant Magistrate that the facts alleged do not amount to an offence under Section 211, Indian Penal Code.' But they directed a trial for an offence under Section 182(a). This case is directly in point and was decided on appeal by the local Government against an acquittal.

11. See also the judgment in Criminal Revision Case No. 515 of 1902.

12. To the same effect is the decision of Mr. Justice Abdur Rahim and myself in Criminal Appeal No. 231 of 1908, Chinna Ramana Gowd v. Emperor 31 M.k 506.

13. I see no reason to differ from these decisions. In the words of Mr. Mayne, paragraph 376, commenting on Section 211 'a false charge made to a person who has no magisterial or police authority, does not come within Section 211.' The statement before the Village Magistrate is not the first step n a proceeding which, in the ordinary course, will lead to the conviction of the accused, if found guilty. The Village Magistrate cannot enquire into the allegations himself, cannot examine witnesses, cannot place the accused before a Magistrate for trial, cannot do anything to the prejudice of the accused on that statement. It was argued that the power conferred by Section 45, Criminal Procedure Code, on the Village Magistrate on receiving the statement to submit a report to the Police or the Magistrate shows that the statement must be treated as the institution of a criminal proceeding or making a charge. This power, it will be noticed, is conferred on him in common with any 'owner or occupier of land and agent of such owner and occupier.' It, therefore, follows that if the statement before the Village Magistrate which of course need not be in writing is the institution of a criminal proceeding, so is any similar statement made before any occupier of land or his agent. A criminal proceeding can be instituted only in the King's Court or before any person appointed by the King for that purpose and I find it difficult to believe that the persons above-named have been constituted authorities, before whom criminal proceedings may be instituted for the sole reason that they have to communicate any information they might receive about the offence. I need hardly state that the information given to the Village Magistrate is different in every respect from the criminal information' known to English law which is a statement informing the Magistrate of the offence for which a summons or warrant is required. This information is not oven a complaint or an accusation. Further the persons referred to in Section 45 including the Village Munsif need not report in bailable cases with a few exceptions and to the information in such cases, therefore, this argument will not apply. How can it be a proceeding in some cases and not in others? Above all, if the Village Magistrate or the other persons referred to, do not act under Section 45 neither the person aggrieved nor any officer has any power under law to compel him to submit the report though he may be punished under the Indian Penal Code. If it were a criminal proceeding, the informant would be entitled to have his statement enquired into and disposed of: and to treat it as a step forward taken for the conviction of the accused, if his guilt is proved. The statement itself need not be transmitted under Section 45. It is only the information that has to be communicated.

For the above reasons I am of opinion that the accused cannot be charged for any offence under Section 211 on account of the statements made before the Village Magistrate and the Station House Officer. I would, therefore, quash the commitment.


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