1. for Opposite Party. Order. -- This rule has been obtained by the petitioner who has been convicted by Sri R. C. Sen, Magistrate, First Class, Howrah, of having committed an offence punishable under Section 500, Penal Code and sentenced to pay a fine of Rs. 200, in default, to undergo rigorous imprisonment for three months. An appeal was taken to the Sessions Judge and it was dismissed. There-after this rule has been obtained.
2. The facts briefly are as follows: The accused Bishan Singh went to a Grain Shop on a bicycle and leaving the bicycle outside he entered the Grain Shop. He borrowed the bicycle from one Mahadeo. When he came out be found the bicycle missing and was informed by some persons that a carpenter named Ram Nagina had taken the bicycle. Upon this in-formation being received, he went to his superior officer, B. N. Railway, at Shalimar, and inform-ed him of the incident. A document was written out and signed by Bishan Singh and it was taken to the Government Railway Police where it was treated as a first information report. The Police investigated the case and returned a charge sheet against Ram Nagina. He was tried and acquitted. Thereafter Ram Nagina filed a petition of complaint before the Sub-Divisional Magistrate, Howrah, in the following terms :
'The humble petition of complaint of Ram Nagina Singh most respectfully sheweth : (1) That a false and malicious case under Section 379, Penal Code was started by the Shalimar G. R. P. (2) That as a result of the false and malicious statements made in the F. I. R. and those before the Court of Mr. S. K. Das Gupta, Magistrate, 1st Class, Howrah, the complainant has suffered loss of reputation. (3) That the said case has ended in acquittal on 22nd April 1948.'
Thereafter there was a prayer that the Magistrate should issue process against Bishan Singh under Section 500, Penal Code. Bishan Singh was tried. The prosecution examined five witnesses, the defence examined none. I think it necessary in this case to set out the charge which was framed against the accused. It is in the following terms:
'That you, on or about 21st October 1947 at Shalimar G. R. P. defamed Ram Nagina by making a. certain imputation concerning Ram Nagina namely describing him as a thief of a cycle by lodging an information at thana to that effect in consequence of which Ram Nagina was tried for theft and acquitted, having reason to believe that such imputation would lower the reputation of the said Ram Nagina and thereby committed an offence punishable under Section 500, Penal Code and within my cognizance, etc.'
It is quite clear, therefore, that the defamatory statement with which the accused was charged wag not any statement made to any one other than the statement made to the Inspector of the G. R. P., B. N. Railway at Shalimar which statement was treated as the First Information Report.
3. The defence taken was that the accused acted bona fide when he made his report to the police and that his case came within Exception 8 of Section 499, Penal Code. It was also argued that the Ninth Exception operated because the statement was made in good faith for the protection of the interests of the person making it. The lower Courts have held that the allegation was not made in good faith and convicted the accused. The order of the Court below is attacked on two grounds. First, it was contended that the whole proceedings were without jurisdiction inasmuch as there was no complaint made against the accused with respect to this offence in accordance with the provisions of Section 195(1)(b) read with Section 476, Criminal P. C. and the second line of defence was that the Court below had erred in holding that the accused was not protected by Excps. 8 and 9 of Section 499, Penal Code, and also that the Court below has erred in taking into consideration many facts which were not evidence in the case.
4. I shall consider the first contention. Learned advocate points out that if it be held that the accused made a false-complaint at the thana knowing that there was no just or lawful ground for making such complaint, then the offence committed by him would be one punishable under Section 211, Penal Code and that as the offence had been committed in or in relation to a proceeding in Court no Court had jurisdiction to take cognizance of such offence except on the complaint in writing of the Court in which those proceedings had been held or of some other Court to which such Court was subordinate. Now, there can be no doubt that if it is held that the accused falsely charged Ram Nagina with theft knowing that there was no just or lawful ground for making such charge he would be guilty of an offence punishable under Section 211, Penal Code. There can also be no doubt that if he is guilty of an offence punishable under Section 211, Penal Code, he would also be guilty of having committed an offence punishable under Section 500, Penal Code as there would be no ground for holding that he acted bona fide. I should like it to be clearly understood that I am not suggesting that the accused is guilty of an offence punishable under Section 211, Penal Code. I am acting on the assumption that he has committed such an offence. Now, if such an offence has been committed, it was committed in relation to or in connection with proceedings in Court because the matter went up for trial and Ram Nagina was acquitted. No Court could take cognizance of such an offence unless the Court in which the trial was held or a Court to which such Court was subordinate complained. Here, admittedly no complaint was lodged by any such Court but Ram Nagina adopted the device of filing a complaint charging the accused not with the offence punishable under Section 211, Penal Code, but with the offence of defamation. It was argued on behalf of the complainant, Ram Nagina, that with respect to the offence of defamation punishable under Section 800, Penal Code, the Court could take cognizance of it without any complaint being made in accordance with the provisions of Section 195(1)(b), 476, Criminal P. C. and therefore there was no defect of jurisdiction in the present case which was a case of defamation. For this proposition, reliance was placed on a decision of a Special Bench of this Court in the case of Satish Chandra v. Ram Dayal, 24 C. W. N. 982:(A.I.R. (8) 1921 cal. 1 : 22 or. L. J. 81 S. B.). On behalf of the petitioner, it was argued that if the offence committed be one punishable under Section 211, Penal Code, the Court cannot exercise jurisdiction and take cognizance of such offence by whittling it down and treating it as an offence punishable under Section 500, Penal Code and for this purpose reliance was placed upon the case of Prafulla Kumar Ghose v. Harendra Nath, 44 cal. 970 : (A. I. R. (4) 1917 Cal. 708 : 18 Cr. L. J. 377) and the case of Ibrahim v. Emperor, 29 Cr. L. J. 849 : (111 I. C. 433 Cal.), where both the previous mentioned cases were considered. In my opinion the point for decision in the Special Bench case was whether a person making a false statement in Court could claim an absolute privilege. The point under discussion was not directly in issue but there were certain dicta which taken out of their context may lend support to the contention urged on behalf of the complainant Ram Nagina. There is a passage however at p. 1000 of that case, Satish Chandra v. Ram Dayal, 24 C.W.N. 982:(A. I. R. (8) 1921 Cal. 1:22 Cr. L. J. 31 (S.B.) which is to this effect :
'Now, the maker of single statement may be guilty of two distinct offences, one under Section 211 (which is an offence against public justice) and the other, an offence under Section 499, wherein the personal element largely predominates. The Legislature has provided, in the Criminal Procedure Code, that the sanction of the Court where the offence is committed, is essential in the former case for the institution of criminal proceedings. In the latter case, the Legislature has omitted to make a similar provision.'
Then the learned Judge goes on to say that in such latter case no sanction was necessary, I may mention that the first two cases mentioned above were decided prior to the amendment of the Code of Criminal Procedure whereby sanctions have been removed and in their place com-plaints in writing by the Court concerned have been introduced. In my opinion this passage indicates that where the offence substantially is one punishable under Section 211, Penal Code, sanction, should be taken and that where offence complained of constituted a mere personal attack more than anything else, then no sanction is necessary. Rankin C. J. distinguished that case in the following terms :
'It is said that in a Full Bench case reported as Satish Chandra v. Ram Dayal, 24 C. W. N. 982 : (A. I. R. (8) 1921 Cal. 1:22 Cr. L. J. 31), the contrary of this doctrine was laid down. In that case, however, the view taken was that the offences defined in Sections 211 and 499 were fundamentally distinct in nature.'
Having regard to this decision, I am of opinion that the decision of the Special Bench is really not applicable having regard to the facts of the present case. I respectfully agree with the view of Sanderson C. J. and Richardson J., that if the contentions made by learned Advocate for the opposite party were to prevail, then the pro-visions of Section 195, Criminal P. C., may just as well be wiped out. It is worthy of note that these remarks were made both by Sanderson C. J. and Richardson J., separately and that Richardson J., was one of the Judges in the Special Bench case. If he held the view that what he had said before was not correct, one would have expected a learned Judge of his eminence to say so in the decision of the Special Bench, but he did not resile from the view taken in the earlier decision when he decided the later decision as one of the Judges of the Special Bench. In my opinion in a case of this description the Court could not take cognizance of the offence except upon a complaint being made by the Court which tried Ram Nagina. That being so, the entire proceedings are without jurisdiction, and they must be set aside and the accused must be discharged.
5. Having regard to this decision it is not necessary for me to deal in detail with the trial and judgment of the Courts below. I would point out however that the charge framed against the accused related solely to the statement made in the First Information Report. The statement is in the following terms :
'That I took the cycle from one of my carpenters named Mohadeb T. No. 401 to call my carpenter from the Grain Shop No. II who was taking rations today 20th October 1947. I kept the cycle near the gate of No. II Grain Shop Shalimar and entered into the Grain Shop to have a look as because I did not find my man outside.
After coming out from there I did not find the cycle there, I asked Gararam and Appanna Khalasi of Carriage Department who were waiting near the cycle for drawing their rations. Being asked they told me that one of your carpenters, blackish, bearded, named Ram-nagina to look (sic) has taken away the cycle without asking anybody. They may be asked to identify the man if required.
The cycle bearing Registered No. 660 and the cycle No. 23885 and the holder of the same is Mohadeb Manna Carpenter T. N. 401 of Marine Workshop, Shalimar. The cycle is a Phillips one and the colour is black.
Will you be kind enough to investigate the matter and do the needful to get back the cycle ?
Thanking you in anticipation.'
The statement by itself shows that the accused was acting in good faith. He was not charging Ram Nagina with theft. He merely stated that some persons told him that Ram Nagina had taken away the bicycle and he asked the police to do the needful to get back the cycle. There is no specific charge of theft against the accused in the statement. The Courts below, however, have come to the conclusion that there was a charge of theft and they arrived at this conclusion by referring to certain statements made by witnesses at the former trial. These statements are inadmissible in evidence except for the purposes of corroborating or contradicting the statements of the witnesses in the pre-sent case. The Court, however, dealt with all the evidence in the former case and also with the reasons given in the judgment of the former case and then came to the conclusion that the offence punishable under Section 500, Penal Code, had been committed. Now, the reasons of the judgment given in the former theft case are irrelevant and inadmissible in evidence. The trial by the Court below has been full of irregularities. In this connection, I would also mention that the lower appellate Court came to a definite finding that the accused believed in the statements 'made by two persons that Ram Nagina had taken away his bicycle. If that be so, I cannot see how the Court could hold that the accused was not acting bona fide when he lodged the First Information at the thana. On that finding alone he would be entitled to the benefit of the Exceptions 8 and 9 of Section 499, Penal Code.
6. I set aside the order of conviction and sentence and direct the accused to be discharged. The fine, if paid, shall be refunded.