MALLAPPA Vs. VEERABASAPPA

JUDGEMENT

(1.) This revision is directed against the order of the Additional Munsiff and J.M.F.C.Haveri in C.C.No.208/76, passed under S.358 of the Code of Criminal Procedure holding that the complainant caused the arrest of the accused though there were no sufficient grounds for causing such arrest, and hence awarding the compensation

(2.) The case emerged out of a police complaint filed by Mallappa against several accused including the respondents 1 to 6. The complainant's case related to a parcel of land stated to be in possession of Mallappa and over such land the respondents 1 to 6 along with several other accused were stated to have trespassed. As such, the accused were charge-sheeted for the offence punishable under S.447 read with S.109 IPC. It is manifest that the offence under S.447 was a cognizable one, and since the information regarding the accused was given by Mallappa in his complaint, investigation was conducted under S.157 Cr.P.C. leading to the arrest of the respondents 1 to 6. Subsequently, the said accused were put up for trial, but they were acquitted. The learned trial Magistrate found that although there was a dispute regarding possession, yet, it could be held to be of a civil nature. According to him, the respondents 1 to 6 were not present when the incident was alleged to have taken place. It was the seventh respondent who was found at that time present at the spot as he claimed to be a watchman of cotton crop which was ready for plucking. It was also referred to by the learned trial Magistrate that there was a bona fide dispute of title and some proceeding was pending before the Land Tribunal. He also observed that at the previous occasion similar complaints were filed at the instance of the complainant or his fatner. With these observations, the finding was given that the dispute was of a civil nature, and as such, no such offence was formulated and the seven accused were acquitted. While making the order of acquittal, however, the learned trial Magistrate considered that the complainant Mallappa caused the respondents 1 to 6 to be arrested and since there was no sufficient ground for causing their arrest, he is liable to pay the compensation. Dissatisfied with that order, the complainant Mallappa has filed the present revision petition.

(3.) Sri B.V.Deshpande, the learned Counsel for the petitioner-complainant, strenuously contended that the very application of S.358 at the instance of the learned trial Magistrate was wrong, inasmuch as the complainant could not be stated tc have caused the arrest of the respondents. In that connection, the learned Counsel referred to S.358 which according to him pointed out two stages, which were to be covered by the Magistrate before he could award compensation. The first stage was when the learned Magistrate had to give a finding that the complainant caused the accused to be arrested and the second stage was when the Magistrate had to give a finding as to whether there was sufficient ground or not for causing such arrest. Unless both the stages were covered, the learned Magistrate could not award compensation. The argument further proceeded, that in the instant case the complainant merely instituted the police complaint in which he named the accused. The investigation was conducted by the P.S.I, under S.157 who went to the spot and arrested the accused. According to the learned Counsel, it could not be stated that the complainant caused the arrest of the accused. It was rather the police officer who caused the arrest in furtherance of his public duties. In reply to that argument, Sri Suresh S. Joshi, the learned Counsel for the respondents, however, contended that the mere fact, that the complainant set the machinery of law in motion and named the accused for committing the offence, was sufficient to hold him responsible for the arrest. According to the learned Counsel it was due to the complainant that the investigation followed and the arrests were made. If the expression "caused the police officer to arrest" is given a liberal construction and could be held to include howsoever far-fetched nexus, is established between the complainant and the arrest, the result may be somewhat starting, because almost in every case the complainant will be held to have caused the arrest. In most of the cases information is received by the police from some one for the commission of a cognizable offence. For that a police complaint is instituted and if it is a cognizable offence, a rests can be made without warrant under Sec.41 CrlPC. The process of the investigation starts under S.157 and since the police officer can arrest without warrant, he goes to the spot and if sufficient grounds are found that a cognizable offence is committed, he effects the arrest of accused. It is also provided us.157(1) (b)that if it appears to the police officer that there is no sufficient ground for entering on an investigation he may not investigate the case. In other words, it is for the police officer to decide if there are sufficient grounds to investigate. If according to his decision a cognizable offence is committed, he will effect the arrest. Therefore, it is the police officer who investigates and makes the arrest and the complainant, if at all can be considered to have a nexus with the arrest, it is rattier Indirect and remote. In my opinion, some direct and proximate nexus between the complainant and the arrest is contemplated for applying Sec.358. It is not difficult to visualise a case where under proviso(b) of S.157(1) the police officer does not propose to hold the investigation. The complainant is not estopped from filing objections before the police officer or even before the Magistrate. He can ask for investigation leading to the at rest of the accused. Perhaps in that case, it may not be difficult to argue that it was the complainant who caused the arrest as the police officer initially did not arrest because, according to his information the case was not fit for investigation. Therefore, something more is needed than the mere information sent to the police officer in order to hold that the person who filed the police complaint caused the arrest within the meaning of S.358. In other words, the test should be that but for the efforts of the complainant the arrest could not have been effected. Hence, it could not be stated in the present case that it was the complainant who caused the arrest of these accused.