1. This Rule has been obtained by one Pashupati Banerjee praying that certain proceedings against him should be quashed.
2. The facts giving rise to this Rule may be briefly stated as follows : On 19th July 1948, the petitioner Pashupati Banerjee wrote a letter to the Chairman of the Kamarhati Municipality objecting to the inclusion of the name, Sri Sushil Kumar Mukherjee in the preliminary Electoral Roll. In his letter, the petitioner asserted that he had come to know after an informal enquiry that Sushil Kumar Mukherjee did not pay in-come-tax, that therefore he could not claim to be a voter and that his name should be struck off if it was found after necessary enquiry that he did not pay the income-tax. Copies of the letter to the Chairman were sent to various persons amongst whom was the Sub-Divisional Officer of Barrackpore. With the copy was sent the following observation:
'With a request to look into the matter seriously and call for from the Income-tax Officer necessary information in this connection. There should not be any shadow of doubt in the mind of the public that Sushil Babu being an ex-Commissioner of the Municipality is exercising his influence over the Registering Authority to include his name in the Electoral Roll in an illicit manner.'
Enquiries were made by the Sub-Divisional Officer and he found that Sushil Babu paid income-tax and that the allegation against him was false. Upon this the Sub-Divisional Magistrate asked the petitioner Pashupati Banerjee to show cause why legal action should not be taken against him for giving false information to the Sub-Divisional Officer with the intention to cause annoyance and injury to Sushil Kumar Mukherjee without any lawful ground. Cause was shown and thereafter the Sub-Divisional Officer filed a complaint before Sri B. N. Sen, Magistrate, First Class, alleging that Pashupati Banerjee had committed an offence punishable under Section 182, Penal Code. The Magistrate took cognizance of the complaint and issued summons against Pashupati Banerjee who has now obtained this Rule for a quashing of the proceedings.
3. The argument of learned Advocate appearing on behalf of the petitioner may be stated thus:
4. The allegations which were made by Pashupati Banerjee against Sushil Kumar Mukherjee were made to the Chairman of the Municipality for necessary action and the Chairman alone could act upon this letter. It is true that a copy was sent to the Sub-Divisional Officer with a certain request but it could not be said that any offence has been committed by this act on the part of the petitioner. If the statements made by Pashupati Banerjee against Sushil Kumar Mukherjee are false, then the only person who could file a complaint against Pashupati Banerjee would be the Chairman of the Municipality or some officer subordinate to the Chairman. The Sub-Divisional Officer was not an officer subordinate to the Chairman and therefore he had no right to complain. By virtue of the provisions of Section 195(1), Criminal P. C., the Court could take cognizance of the complaint only upon the complaint of the Chairman or his subordinate. The Court was wrong in taking cognizance of the complaint of the Sub-Divisional Officer.
5. Learned advocate appearing on behalf of the Crown contended that the complaint filed by the Sub-Divisional Officer was a valid complaint and that the Court before whom the complaint was filed had jurisdiction to entertain the complaint and issue process. His argument is that statements made by Pashupati were false and that he made these false statements in order to induce or knowing it likely he will induce the Sub-Divisional Officer to do certain things which he would not have done. His view is that the sending of a copy of the letter addressed to the Chairman together with the request amounted to giving the Sub-Divisional Officer information and asking him to do something which he ought not to do.
6. In order to decide this question one must first examine the words of Section 195(1)(a), Criminal P. C. It is in the following terms :
'No Court shall take cognizance of any offence punishable under Sections 172 to 188, Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.'
It is clear from this section that the person to make the complaint is the public servant concerned or his subordinate. The words ''public servant concerned', so far as an offence under Section 182, Penal Code, is concerned, would mean a public servant to whom a false information is given with the intention or knowledge that such public servant will do something which he ought not to do. Obviously if the Chairman of the Municipality had filed this complaint, there could be no objection. The information was given to him and he was asked to act upon it. If the informant knew that the information was false he would be guilty of an offence punishable under Section 182 Penal Code. Here, however, the complaint has not been filed by the Chairman but by the Sub-Divisional Officer. I quite agree with learned advocate appearing for the Crown that by sending a copy of the letter addressed to the Chair-man to the Sub-Divisional Officer the petitioner was giving information to the Sub-Divisional Officer. It is also true that in the memorandum accompanying the letter Sub-Divisional Officer is requested to do certain things. The question which arises for consideration is whether this amounts to an offence punishable under Section 182, Penal Code. For this purpose, we have to examine the wording of Section 182(a), Penal Code. It is in the following terms:
'Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or'
Reliance has not been placed by the learned advocate for the Crown on Sub-section (b) of Section 182, Penal Code, so, I leave it out of consideration. In order to establish an offence punishable under Section 182, Penal Code, it must be established that a person gave information which he knew or believed to be false to a public servant and that he intended thereby to cause such public servant to do something which such servant ought not to do or that he knew it to be likely that he would thereby cause such public servant to do some. thing which he ought not to do. Now, the words 'to do something' which such public servant ought not to do must mean, in my opinion, to do something which the public servant was enjoined to do in his official capacity as public servant. If a person gives false information to a public servant knowing it to be likely or intending that he would do something which had no connection with his office as a public servant then, in my opinion, the conduct of the person giving such information would not come within the purview of Section 182, Penal Code. For instance, if a person gave information to a public servant knowing it to be likely or intending that such public servant would go and beat up somebody, then it cannot be said that this offence has been committed because it is no part of the duty of a public servant to beat up people. Now, in the present case the Sub-Divisional Officer has nothing to do with the matter regarding the inclusion of Sushil Kumar Mukherjee in the Electoral Roll. He had no function to perform regarding these matters and it was no part of his duty as a public servant to make enquiries whether Sushil Kumar Mukherjee paid income-tax or not. Therefore, it is quite clear that the Sub-Divisional Officer was being asked to do something which did not constitute an act to be done in the exercise of his duties as a public servant. That being so, so far as the sending of the letter to the Sub-Divisional Officer together with memorandum is concerned, no offence under Section 182, Penal Code, has been committed and therefore the Sub-Divisional Officer had no right to file the complaint. The person who should have filed the complaint is the Chairman of the Municipality or some one sub-ordinate to him.
7. In these circumstances I must hold that the proceedings are bad ab initio and they must therefore be quashed.
8. I wish it to be understood that I am expressing no opinion whether in the circumstances of this case the Chairman of the Municipality should take steps or not. That is a matter for the Chairman to decide.
9. The rule is made absolute.