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Guru Prosad Ram Gupta and ors. Vs. Rameswar Marwari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1938Cal527
AppellantGuru Prosad Ram Gupta and ors.
RespondentRameswar Marwari
Cases ReferredIbrahim v. Emperor
Excerpt:
- .....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. this diversity, for ought we know, may have been deliberate and plainly affords no reason why the court should struggle 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.....
Judgment:
ORDER

1. In this ease, a rule was issued upon the District Magistrate Burdwan, and also upon the complainant to show cause why the proceedings under Section 500, I.P.C., against the petitioners should not be quashed or such other order made as to this Court may seem fit and proper. The petitioner Ramkissen lodged an information at the thana on 19th July 1936 that he went to the firm of Keshabram and demanded some money due to his master; that he was an employee of the firm of Kuarram Jharilal of Ranigunge, an altercation ensued and Rameswar Lal Marwari snatched away his cloth bag containing. Rs. 378.4-6 and assaulted him. An enquiry was made and all the accused were charged under Section 323, I.P.C. and Rameswar Marwari was, in addition to that section, charged under Section 379, I.P.C. The Magistrate found the four accused guilty and sentenced them to pay fines of Rs. 50 each under Section 323,I.P.C. and found Rameswar Marwari guilty under Section 379,I.P.C. On appeal, the Sessions Judge found that the story of theft had been falsely added to the charge of assault and therefore he set aside the conviction for assault. Then on 11th August, the complainant lodged a com. plaint before the Sub-Divisional Magistrate charging the petitioners with an offence under Section 500, I.P.C. on the ground that by reason of the allegations of theft made against him he had been lowered in public estimation and the business of his firm has suffered. The petitioners were accordingly summoned under Section 500, I.P.C. and it is in consequence of that that this application has been made. The ground on which this rule is urged is that as the present prosecution is designed to avoid the provisions of Section 195, Criminal P. C, the prosecution should not be allowed to proceed. For the petitioners, the case in Prafulla Kumar v. Harendra Nath (1917) 4 AIR Cal 708 has been referred to. In that case, the learned Judge has held (head-note):

Where an offence, though described as an offence under Section 500 of the Penal Code, still remains an offence 'punishable' under Section 211. Process should not issue under the former section on the application of a person discharged or acquitted, when the Court has refused sanction under the latter section.

2. The reason given by the learned Judge for this view of the law is that if, after sanction has been refused, prosecution under Section 500 was allowed, the provisions of B. 195, Criminal P.C., will be nugatory.

The case taken to protect 'complainants' from being harassed by prosecutions for instituting false cases is a clear indication that the Legislature never intended or contemplated that upon refusal of leave to prosecute under Section 211, a person who has been discharged or acquitted should be allowed to fall back upon Section 500.

3. This decision was referred to in a Full Bench decision in Satish Chandra v. Ram Dayal (1921) 8 AIR Cal 1. There the Acting Chief Justice has discussed the matter as follows:

The maker of a 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. This diversity, for ought we know, may have been deliberate and plainly affords no reason why the Court should struggle 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.

4. Then he goes on to say:

It is after all the province of the statesman and not of a Judicial Tribunal to discuss and of the Legislature to determine, what is the best for the public good and 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 and confusion, to interpret the clear and unambiguous provisions of the statute in their plain inatural sense, and not to 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.

5. This decision was followed unanimously by all the members of the Full Bench and although the main point for consideration of the Full Bench in that case was whether a defamatory statement by a party to a judicial proceeding was or was not absolutely privileged, the question, which is now before us, was discussed and considered at length in the course of the decision of the Full Bench and certainly it must be regarded as overruling the decision in Prafulla Kumar v. Harendra Nath (1917) 4 AIR Cal 708. Our attention however has been drawn to the case in Ibrahim v. Emperor (1928) 111 IC 433, in which Sir George Rankin has quoted the case in Prafulla Kumar v. Harendra Nath (1917) 4 AIR Cal 708 with approval and found that in a case where the offence committed was really one under Section 471, Penal Code, it was illegal to reduce the charge to one under Section 474, Penal Code, and prosecute the accused without a complaint under Section 476, Criminal P.C. The facts of that case were however quite different. There the learned Judge was satisfied that the offence was clear under Section 471, if any offence was made out at all, and that process having been sought and refused under Section 476, Criminal P.C., it would be wrong to permit the prosecution to take place in the manner which had been adopted. He discusses why Section 474,I.P.C. was not included in the sections which require action to be taken under Section 476, Criminal P.C. and says that prosecution under Section 474, I.P.C, was, in that case, escaping from the effect of Section 195, Criminal P.C. Both, the case in Prafulla Kumar v. Harendra Nath (1917) 4 AIR Cal 708 and the case in Ibrahim v. Emperor (1928) 111 IC 433, are distinguishable from the present case in that in both those cases sanction to prosecute coming under Section 195 had been refused. It seems clear that since the Legislature has not chosen to include Section 500 amongst these sections in which prosecution must be initiated by the Court in connexion with which the offence has been committed, there is no provision of the law by which the Court can refuse to permit a prosecution under Section 500 where the facts appear to justify such a prosecution. It would, therefore, not be right to quash the proceedings under Section 500, I.P.C. The guilt or innocence of the accused must be decided in accordance with the evidence in the case and provisions of Section 499 of the Code. This Rule is accordingly discharged.


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