ALBERT Vs. STATE OF KERALA

JUDGEMENT

(1.) THE question we have to answer for deciding this case is, in the words of the referring order, "does setting the criminal law in motion by making a charge to the police of a cognizable offence against a person amount to the institution of criminal proceedings against that person within the meaning of S. 211 of the Indian Penal code?". It is a question with regard to which there seems to be considerable conflict of authority.

(2.) THE two accused persons in this case, it is alleged, gave information to the police charging four named persons with the offence of robbery punishable under S. 394 of the Indian Penal Code. THE police investigated the charge and referred it as false. THE accused did not take the matter any farther by instituting a complaint in court, and they were prosecuted for an offence under the second part of S. 211 of the Indian Penal code. A preliminary inquiry was held under Chapter XVIII of the Criminal procedure Code and the accused were committed to Sessions on the finding that there was a prima facie case against them for an offence falling under the third paragraph of the entry in respect of S. 211 of the Indian Penal Code in schedule II of the Criminal Procedure Code and therefore an offence exclusively triable by a Court of Session. When the case came on for trial before the assistant Sessions Judge, to whom it had been made over by the Sessions Judge, a preliminary objection was taken on behalf of the accused that the offence alleged against them fell only within the first part and not within the second part of S. 211 of the Indian Penal Code. THErefore, the case was triable only by a magistrate of the first class and not by the Court of Session. THE learned assistant Sessions Judge took the view that there was some substance in this contention, but he nevertheless decided to proceed with the trial because he had neither the power to quash the commitment nor the power to make a report to the High Court under S. 438 of the Criminal Procedure Code. However, he wrote a very long order in the matter and sent a copy of it to the Sessions judge who has made a report which has been numbered as Criminal Reference No. 50 of 1964. THE 1st accused in the case has come up in revision - his petition is Criminal revision Petition No. 408 of 1964 - and has prayed that the order of commitment be quashed.

(3.) NEITHER the word, "proceeding" nor the phrase, "criminal proceeding" is defined in the Indian Penal Code but we think that the word, "proceeding" is used in S. 211 in the ordinary sense of a prescribed mode of action for prosecuting a right or redressing a wrong and not in the technical sense of a proceeding taken in a court of law -even the expression "legal proceeding" appearing in S. 446 of the Companies act has been construed to include proceedings taken by Income-tax authorities for recovery of arrears of income-tax. (See G. G. Council v. S. S. Mills (AIR. 1946 F. C. 16 ). A criminal proceeding, it seems to us, is, as that phrase is defined by Black in the second edition of his Law Dictionary, page 301, a proceeding "instituted and conducted for the purpose either of preventing the commission of crime or for fixing the guilt of a crime already committed and punishing the offender". The definition of, "investigation" in S. 4 (1) (1) of the Criminal Procedure Code as including "all the proceedings under this Code for the collection of evidence conducted by a police officer", makes it clear that an investigation under Chapter XIV of that Code is a proceeding and the definition of, "judicial proceeding" in S. 4 (1) (m) as including "any proceeding in the course of which evidence is or may be legally taken on oath" shows that the word, "proceeding" is not necessarily confined to something done in a court of law. If an investigation under Chapter XIV is a proceeding we think, it necessarily follows that it is a criminal proceeding and the very fact that the expression, "criminal proceeding" in S. 211 of the Indian Penal Code is not qualified by the word, "judicial" or by anything else to show that it is confined to a proceeding before a court of law or other tribunal, makes it clear that it is wide enough to include a proceeding under Chapter XIV of the Criminal Procedure Code. With great respect we are unable to accept the assumption made in Empress of India v. Pitam Rai (ILR. 5 Allahabad 215), empress v. Parabu (ILR. 5 Allahabad 598), Queen Empress v. Bisheshar (ILR. 16 allahabad 124), or the view expressly stated in Sultan Ahmed v. Emperor (AIR. 1931 Nagpur 134) (F. B.), The King v. Ma Ban Gyi (AIR. 1938 Rangoon 397) and in emperor v. Karsan Jesang (AIR. 1941 Bombay 414) that the phrase, "criminal proceeding" in S. 211 of the Indian Penal Code refers only to a criminal proceeding in court and we respectfully agree with the view taken in the leading cases in Karim Buksh v. Queen Empress (ILR. 17 Calcutta 574), a decision by a bench of five judges, and Queen Empress v. Nanjunda Rao (ILR. 20 madras 79) that, when a man sets the criminal law in motion against a person by giving information to the police that that person has committed a cognizable offence, he institutes a criminal proceeding against that person within the meaning of S. 211 of the Indian Penal Code. For, as we have said, the police are bound by law to investigate the accusation against that person whether they believe it or not and make a final report under S. 173 of the Criminal Procedure code. That that final report may be against some other person or against none at all cannot alter the fact that a criminal proceeding was instituted against the person accused. Nor does the circumstance that a police investigation need not necessarily be directed against a definite person (though in the vast majority of cases it is) alter the fact that it is a proceeding against a person when it is so directed.