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Dhirendra Nath Bera Vs. Nurul Huda and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case Number Full Bench Reference No. 4 of 1951 in Criminal Revn. No. 769 of 1950
Judge
Reported inAIR1951Cal133,56CWN1
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 190, 195, 195(1), 196, 196A, 197 and 199; ;Indian Penal Code (IPC) - Sections 182 and 500
AppellantDhirendra Nath Bera
RespondentNurul Huda and ors.
Appellant AdvocateSudhansu Sekhar Mukherji and ;Arun Kumar Dutt and ;Kishore Prosad Mukherji, Advs.
Respondent AdvocateAjit Kumar Dutta and ;Amal Kumar Basu, Advs.
Cases ReferredSatis Chandra v. Ram Dayal De
Excerpt:
- .....at uluberia charging the accused opposite parties with offences under sections 297 & 500, penal code. the accused were tried by the learned magistrate & were found guilty on both charges. each was convicted under section 297, penal code, & sentenced to rigorous imprisonment for three months. each was also convicted under section 500, penal code & sentenced to pay a fine of rs. 100 & in default of payment, to suffer simple imprisonment for two months. out of the fines, if realised, the sum of rs. 300 was to be paid to the complainant dhirendra nath bera as compensation.4. the convicted persons appealed to the court of the learned ses. j. of howrah & in that court it was argued on their behalf that the accused could not be convicted of either of the offences because the provisions.....
Judgment:

Harries, C.J.

1. This is a reference made to a Full Bench by a Division Bench in a criminal matter.

2. One Mokshoda Dassi, mother of Dhirendra Nath Bera, who was the complainant, had been ill for sometime & while their son was away from home on 3-9-1949 she died. On his return home late in the evening Dhirendra Nath Bera found that his mother had died & with the aid of his friends & neighbours he took the dead body to the Panshilla Hindu cremation ground & placed the body on a funeral pyre which was then lighted. It appears that the accused Nurul Huda had lodged an information at the Shyampore Police Station in which it was alleged that the petitioner had beaten or throttled his mother to death. The accused opposite parties Nurul Huda, Basiral Huq, Sanwaral Huq, Jahet Rahaman, & Dr. Niamutulla--accompanied by a Sub-Inspector of the Shyampore Police Station--hurried to the cremation ground & found that the funeral pyre had been lighted. A complaint was again made to the Sub-Inspector that the deceased had been done to death & at the instance of the accused opposite parties the body was removed from the funeral pyre & taken to the morgue. A postmortem examination, however, revealed that there were no signs of injury on the body & that the deceased died a natural death. Later the final report of the police was to the effect that the information lodged was false.

3. The petitioner filed a complaint in the Court of a Magistrate at Uluberia charging the accused opposite parties with offences under Sections 297 & 500, Penal Code. The accused were tried by the learned Magistrate & were found guilty on both charges. Each was convicted under Section 297, Penal Code, & sentenced to rigorous imprisonment for three months. Each was also convicted under Section 500, Penal Code & sentenced to pay a fine of Rs. 100 & in default of payment, to suffer simple imprisonment for two months. Out of the fines, if realised, the sum of Rs. 300 was to be paid to the complainant Dhirendra Nath Bera as compensation.

4. The convicted persons appealed to the Court of the learned Ses. J. of Howrah & in that Court it was argued on their behalf that the accused could not be convicted of either of the offences because the provisions of Section 195, Criminal P. C., had not been complied with. It was contended that the complaint filed by the complainant disclosed an offence under Section 182, Penal Code & possibly under Section 211 of the Code. That being so it was urged that no prosecution could be instituted except on the complaint in writing of a public servant or except on the complaint of the Court concerned as required by Section 195 (1) (a) & (b). The learned Ses. J. relied on a recent case of this Court & upheld the contention put forward on behalf of the accused persons. He accordingly allowed the appeal, set aside their convictions & sentences & acquitted them.

5. The complainant then preferred a petition in revision to this Court & the petition in due course came before a Division Bench. The Bench were of opinion that the accused could properly be tried on both the charges without a complaint being made by a public officer or a Court. However, the Bench found that there were conflicting authorities of this Court & therefore they had no alternative but to refer the case to a Full Bench. The question which the Bench formulated for the answer of the Full Bench was in these terms :

'If the facts alleged in a petition of complaint, or in a report from the police or in an information received by the Magistrate, on which a Magistrate can ordinarily take cognizance of an offence under Section 190, Criminal P. C., disclose an offence of which cognizance cannot be taken by the Magistrate because of the special provisions of Section 195 or 196 or 196A or 197 or 199, Criminal P. C., is the Magistrate also debarred because of this from taking cognizance of other offences disclosed by the facts alleged, which are not in any way affected by the provisions of Section 195 or 196 or 196A or 197 or 199, Criminal P. C.?'

6. Under the Rules of this Court the whole case together with the question propounded was referred to a Full Bench for decision.

7. Section 195 deals with prosecutions for contempt of lawful authority of public servants, prosecutions for certain offences against public justice, & prosecutions for certain offences relating to documents given in evidence. The section provides that no prosecution for contempt of the lawful authority of a public servant can be instituted except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. The section further provides that no prosecution for the other two classes of offences can be instituted except on a complaint in writing of the Court concerned or of some other Court to which the Court is subordinate.

8. Section 196 deals with prosecutions for certain offences against the State & provides that no prosecution can be instituted for such offences unless upon complaint made by order of, or under authority from the Provincial Govt. or some officer empowered by the Provincial Govt. in that behalf.

9. Section 196A deals with prosecutions for certain classes of criminal conspiracy & provides that prosecutions cannot be instituted except upon complaint made by order or under authority from the Provincial Govt. or certain officers empowered by the Provincial Govt.

10. Section 197 deals with prosecutions of Judges & public servants & such prosecutions can only be instituted with the previous sanction of either the Governor-General or the Governor of a Province.

11. Section 199 of the Code deals with prosecutions for adultery or enticing a married woman & provides that a prosecution cannot be instituted for either of these offences except upon a complaint made by the injured spouse or in her absence by some person who had care of such woman on behalf of the other spouse, at the time when the alleged offence was said to have been committed.

12. On behalf of the complainant petitioner, it was argued that these sections of the Criminal P. C. only required complaints to be made by public servants or Magistrates or judicial officers or only required previous sanction for the specific offences mentioned in the sections. If the facts, though they might disclose offences under those particular sections, disclosed offences under other sections not referred to in Sections 195 to 199, Criminal P. C., prosecutions in respect of such offences could be instituted without observing the formalities required by those sections of the Criminal Procedure Code.

13. On behalf of the accused, however, it was contended that if prosecutions for offences other than those mentioned in Ss. 195 to 199, Criminal P. C. could be instituted without the formalities prescribed by those sections of the Code then the provisions of those sections of the Code could be circumvented & defeated. It was, therefore, necessary, it was said, to insist that if the facts disclosed any of the offences mentioned in Sections 195 to 199, Criminal P. C., then the formalities required by those sections would have to be observed & the requirements of those sections strictly fulfilled.

14. In support of the contentions raised by the accused a number of cases of this Court were relied upon. In the case of Profulla Kumar v. Harendra Nath, 21 C. W. N. 253, the petitioners had instituted criminal proceedings under Section 409, Penal Code, against the opposite parties who were discharged as the learned Magistrate found that the petitioners had no lawful or reasonable ground for the action that they had taken & that their complaint was not made in good faith. The opposite party then applied to the Magistrate for sanction under Section 195, Criminal P. C., to prosecute the petitioners under Section 211, Penal Code, & in the alternative asked for process under Section 500, Penal Code. The learned Magistrate refused sanction to prosecute for an offence under Section 211, Penal Code, but granted process under Section 500, Penal Code. A Bench of this Court held that on the facts the offence, if any, was clearly under Section 211, Penal Code, & the application for sanction to prosecute for that offence having been rejected the petitioners could not be proceeded against under Section 500 or Sections 500/109, Penal Code, on the same facts.

15. In Ibrahim v. Emperor, 111 I. C. 433 (Cal.), another Bench of this Court held that where the offence committed is really one under Section 471, Penal Code, it is illegal to reduce the charge to one under Section 474, Penal Code, & prosecute the accused without a complaint under Section 476, Criminal P. C. In this case the case which I have referred to earlier Profulla Kumar v. Harendra Nath, 21 C. W. N. 253 was cited with approval & followed.

16. A similar view was taken by Henderson J., in the case of Ranibala v. Radharani Dasi, 48 Cr. L. J. 660 (Cal.) & by Sen J. in the recent case of Osman Mistry v. Atul Krishna, A. I. R. (36) 1949 cal. 632. The same view was again taken by Sen & Chunder JJ. in an unreported case Benoy Kumar v. The State, criminal Revn. No. 59 of 1950.

17. The petitioner also relied on a number of authorities of this Court & of other High Courts in India. In Satis Chandra v. Ram Dayal De, 24 C. W. N. 982, a Bench of five Judges held that the dismissal of an application by a party to a judicial proceeding for sanction to prosecute the opposite party under Ss. 181 & 193, Penal Code, for statements made by the latter on oath was no bar to a prosecution for the same statements under Section 500, Penal Code, the prosecution having been started prior to the application for sanction, & its dismissal further not attracting the operation of Section 403, Criminal P. C.

18. This decision of five learned Judges has been referred to in other cases as a decision of a Full Bench. Bat it is quite clear from the records of this Court that it was a decision of a Special Bench &, therefore, though five learned Judges constituted the Special Bench the case only has the authority of a decision of a Division Bench. If this case could be regarded as the decision of a Full Bench the matter would have been concluded. But it cannot be so regarded. Sir Aautosh Mokerjee A. C. J. who delivered the judgment of the Special Bench observed at p. 1000 :

'The Court is bound to administer the law as enunciated by the legislature & neither to enlarge nor to restrict the sphere of its application. As Baron Parke said in Egerton v. Brownlow, (1853) 4 H. L. C. 1, 'It is the province of the Judge to expound the law only; the written from the statutes; the unwritten or Common Law from the decisions of our predecessors & of our existing Courts, from text-writers of acknowledged authority & upon the principles to be clearly deduced from them by sound reason & just inference'. Now, the maker of a single statement may be guilty of two distinct offences, one under Section 211 (which is an offence against public justice) & the other, an offence under Section 499, wherein the personal element largely predominates. The legislature has provided, in the Criminal P. C., 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. This diversity, for aught we know, may have been deliberate, & plainly affords no reason why the Court should straggle to hold that the statement does not fall within the mischief of the rule embodied in Section 499. The two offences are fundamentally distinct in nature, as is patent from the fact that the former is made non-compoundable while the latter remains compoundable; in the former case, for the initiation of the proceedings the legislature requires the sanction of the Court under Section 195, Criminal P. C. in the latter case cognizance can be taken of the offence, only upon a complaint made by the person aggrieved, under Section 198, Criminal P. C. Whether every statement made by an Advocate, by a party to a judicial proceeding, by a witness therein should be excluded from the category of defamation or, if included therein, should be made punishable in a proceeding instituted only with the sanction of the Court where the statement was made, are manifestly questions of policy which can be settled appropriately only by the legislature. If for reasons of public policy, the Legislature thinks fit to adopt the first alternative, as it is unquestionably competent to do, & to confer on advocates, parties & witnesses, not merely a qualified privilege as at present, but an absolute privilege as in the case of Judges, a new exception framed in suitable terms should be inserted in Section 499, Penal Code. If, on the other hand, the second alternative commends itself to the legislature as more expedient, Section 600, Penal Code, may well be included in the list of sections contained in Section 195 (1) (b), Criminal P. C. It is, after all, the province of the statesman, & not of a Judicial Tribunal to discuss, & of the legislature to determine, what is the best for the public good & to provide for it by proper enactments. But, till the law has been amended, in one or other of the modes just indicated, or, possibly in some other manner, it is incumbent upon us, if we are to avoid the greatest uncertainty & confusion to interpret the clear & unambiguous provisions of the statute in the plain, natural sense, & not allow ourselves to be led into speculations as to their reasonableness or unreasonableness by reference to the ever captivating but often misleading ideals of public policy.'

19. The view of the Special Bench was accepted & followed by a Bench of this Court in Superintendent & Remembrancer of Legal Affairs, Bengal v. Biswambhar, 56 Cal. 1041, in which it was held that no complaint by a Court is necessary for the prosecution of an offence under Section 471, Penal Code, where, subsequent to the complaint being preferred & cognizance being taken thereon, a suit was instituted in the Court on the document in question. Graham J. in his judgment expressly held that where, upon the facts, the commission of several offences is disclosed, some of which require sanction & others do not, it is open to the complainant, if he so wishes, to proceed in respect of those only which do not require sanction.

20. In a later case Guru Prosad Ram v. Rameswar, 42 C. W. N. 674, another Bench of this Court held that a prosecution of the complainant in a criminal case under Section 500, Penal Code, at the instance of the accused on the ground that the former had brought a false charge of theft against the latter of which he had been acquitted could not be refused or quashed on the ground that it had the intention or effect of avoiding Section 195, Criminal P. C. when no sanction was asked for or refused.

21. The same view has been taken by other High Courts. See Yeok Kuk v. Emperor, A. I. R. (15) 1928 Rang. 252; Mohammad Isa v. Nasim Husain, : AIR1940All246 ; Chanan Singh v. Tarak Singh, A. I. R. (29) 1942 Lah. 76; Sheo Ahir v. Emperor, A. I. R. (25) 1938 Pat. 548; In re Vishwanath M. Hedge, 53 Bom. L. R. 55 & Narayana Ayyar v. Veerappa Pillai, : AIR1951Mad34 , which is a decision of a Full Bench.

22. In my judgment the Special Bench decision in Satis Chandra v. Ram Dayal De, 24 C. W. N. 982, correctly states the law on the subject. Sections 195 to 199, Criminal P. C. deal with the requisites for the prosecution of certain specified offences & it appears to me that the provisions of those sections must be limited to prosecutions for the offence actually indicated. If it was the intention of the legislature to make sanctions or complaints a certain form necessary for the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in Sections 195 to 199, Criminal P. C. the legislature could have said so. But it did not. It only made complaints in a particular form or previous sanctions necessary for the prosecution of particular offences & it appears to me that to hold that these sections of the Criminal P. C. apply to all prosecutions based on certain facts is clearly erroneous. As pointed out by Sir Asutosh Mukerjee A. C. J. in the Special Bench case to which I have made reference, it is the duty of the Court to construe these sections & to construe them according to the language used. It is not for a Court to speculate as to what the legislature should or might have said. Regard can only be had to what the legislature has said. It has been suggested in the cases which take the contrary view that to allow a prosecution for some other offence without a particular form of complaint, where the facts disclose an offence requiring a particular form of complaint, would be to defeat the provision in the Code requiring that particular form of complaint. It seems to me, however, that the legislature clearly intended a particular form of complaint or a previous sanction for the prosecution of certain offences only & there is nothing in these sections to suggest that prosecutions in respect of other offences based on the same facts could not be instituted except by observing the provisions of Sections 195 to 199, Criminal P. C. To accept the view of the learned Ses. J. in this case would amount to reading into these sections of the Criminal P. C. something which does not appear in those sections. The view of the Special Bench appears to me to be unassailable & to hold otherwise would amount to legislating & adding very materially to the provisions of those sections in the Criminal P. C.

23. Further the view that no prosecution for defamation under Section 500, Criminal P. C., can be instituted in respect of false information given to a public servant with intent that the latter should act upon it, except upon the complaint of the public servant would lead to a somewhat startling result. That contention is based on the view that no prosecution should be instituted to defeat the provisions of Sections 195 to 199, Criminal P. C. To institute a prosecution for defamation would, it is said, defeat the necessity for a particular form of complaint as required by Section 195 (1) (a), Criminal P. C.

24. It must be remembered that by reason of Section 198, Criminal P. C., no Court can take cognizance of an offence under Section 500, Penal Code, which is in Chap. XXI of that Code, except upon a complaint made by the person aggrieved of such offence. That being so, where the facts disclose an offence under Section 500, Penal Code, a complaint by the person aggrieved is necessary & therefore it appears to me that if the facts also disclose an offence under Section 183, Penal Code, it will be impossible to prosecute either offence except possibly on the complaint of two persons. If a prosecution for the offence under Section 183, was instituted, it could be met with the contention that the facts disclosed an offence under Section 500 & cognizance could only be taken upon the complaint of the person aggrieved, & to allow cognizance of an offence under Section 182, Penal Code, upon the complaint of the public servant concerned would defeat the provisions of Section 198, Criminal P. C. Similarly to allow a prosecution for defamation on a complaint of the aggrieved person could be said to defeat the provisions of Section 195 (1)(a) of the Code if the defamatory statement appeared in a complaint made to a public officer, because a prosecution under Section 182 for making such a complaint to a public officer could only be instituted upon the complaint of that public officer. The result would be that no prosecution could be instituted as the prosecution for one offence could be said to defeat the mandatory provisions of law required for the prosecution of another offence arising out of the same facts.

25. No such difficulties however can arise if the view enunciated in the Special Bench Case to which I have made reference is accepted. If a particular form of complaint or a previous sanction is only necessary for the prosecution of the offences specifically indicated in Sections 195 to 199, Criminal P. C., then prosecutions for other offences not specified therein may be instituted without the particular forms of complaint or previous sanction required by those sections. The construction placed upon these sections of the Code of Criminal P. C. by the Special Bench is the right construction & I would accordingly answer the question submitted to this Full Bench in the negative.

26. In any event I fail to see how the learned Ses. J. could have held that a prosecution under Section 297, Penal Code, could not be instituted by reason of anything in Section 195 to Section 199, Criminal P. C. The offence under Section 297, Penal Code, is the offence of trespassing in any place of worship or in any place set apart for the performance of funeral rites, with the intention of wounding the feelings of any person or insulting the religion of such person or with knowledge that the feelings of such person would be likely to be wounded or that the religion of such person would be likely to be insulted thereby. The prosecution for this offence could in no way be said to arise out of the facts which would constitute an offence under Section 182 or Section 211, Penal Code. The prosecution would arise from an entirely different set of facts, namely, the trespass by the opposite parties in the burial ground & the removal of the corpse from the lighted funeral pyre. Nevertheless the learned Judge held that no prosecution could be instituted for this offence because no complaint had been made by the public officer to whom false information had been given. Clearly there is nothing in Sections 195 to 199, Criminal P. C. which could possibly be said to prevent a prosecution for this offence.

27. With regard to the conviction under Section 500, Penal Code, it is true that the prosecution for defamation was based on the false information given to a public officer with intent that the latter should act on it; & that being so, a prosecution under Section 182 & Section 500, Penal Code, could be said to arise out of the same facts. For the reasons which I have already given there was in my view no ground whatsoever for the learned Ses. J. holding that the accused could not be prosecuted under Section 500, Penal Code, without the sanction of the public officer as required by Section 195 (1) (a) of the Code. The order of the learned Ses. J. therefore was clearly erroneous & must be set aside. The learned Ses. J. did not deal with the appeal on the merits, but allowed the appeal upon this preliminary point. It will therefore be necessary for the learned Ses. J. to consider the appeal on the merits & to come to a conclusion whether or not the offences under Sections 297 & 500, Penal Code, were established beyond reasonable doubt.

28. In the result therefore this petition must be allowed. The order of the learned Ses. J. is set aside & we direct that the appeal be reheard by the learned Ses. J. upon the merits. The Rule is accordingly made absolute.

Chakravartti, J.

29. I entirely agree with my Lord, the Chief Justice.

Das Gupta, J.

30. I entirely agree with my Lord, the Chief Justice.


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