NARAYANA AYYAR Vs. G VEERAPPA PILLAI

JUDGEMENT

(1.) We think that the point of law involved in this case on which there is a conflict of opinion should be decided by a Full Bench. The decision of Leach C. J. and Chandrasekhara Aiyar J. in Nallappa Goundan v. Chinnammal, I. L. R. 1942 Mad. 158 (A. I. R. (29) 1942 Mad. 19 : 43 Cr. L. J. 44l) runs counter to four earlier decisions, Shanmugasundaram Pillai v. Manicka Mudaliar, 1939 M. W. N. 192 : (A. I. R. (26) 1939 Mad. 368 : 40 Cr. L. J. 542) and Ammanna Sastri v. Sitaramayya, 1939 M. W. N. 336 and Gurubasayya v. Siddalingappa, 1940 M. W. N. 392 : (A. I. R. (27) 1940 Mad. 677 : 41 Cr. L. J. 906) and Ramaswami Konar v. Nachiar Ammal, 1940 M.W.N. 867. Recently one of us considered the point in Cri. R. C. No. 1524 of 1949 and distinguished the case in Nallappa Goundan v. Chinnammal, I. L. R. 1942 Mad. 158 : (A. I. R. (29) 1942 Mad. 19 : 43 Cr. L. J. 441). The same case was considered in Chinnayya Goundan v. Emperor, 1948 M. W. N. 357 : (A. I. R. (35) 1948 Mad. 474 : 49 Cr. L. J. 737). Sen J. of the Calcutta High Court in Bishan Singh v. Bam Nagina Singh, expresses the opinion that where an offence of defamation is committed by a person during the course of a proceeding in Court, no complaint under Section 500 can be made against that person, except under a complaint filed by the Court or the officer concerned under Section 195, Criminal P. C. The ratio decidendi of quite a large body of case-law, namely, Manjayya v. Sesha Shetti, 11 Mad. 477 : (1 Weir 586), Perianna Muthirian v. Vengu Ayyar, 1929 M. W. N. 196 : (A. I. R. (16) 1929 Mad. 21), In re Ravanappa Reddi, 65 Mad. 343 : (A. I. R. (19) 1932 Mad. 253 : 33 Or. L. J. S6i) and Dholliah v. Sub- Inspector of Police, Wellington Station, 1931 M. W. N. Cr. 97 : (A. I. R. (18) 1931 Mad. 702 : 32 Cr. L. J. 1215) is to the effect that in similar circumstances, where the facts constitute two offences for one of which a complaint by the Court is necessary and for the other no such complaint is necessary, it is not possible to circumvent the provision of Section 195, Criminal P. C., by filing a complaint for an offence for which a previous complaint under Section 195 is not necessary. Chandra Reddi J, who referred the case to a Bench, was also of the view that there is a conflict. We, therefore, are of the opinion that the entire case may be posted before a Full Bench for resolving the conflict on the point of law involved. Opinion of the Full Bench. Govinda Menon, J. 1a. The petitioner was the accused in c. c. No. 2 of 1950 on the file of the Court of the Joint Magistrate of Kumbakonam and he seeks to revise the order of the Joint Magistrate overruling a preliminary objection raised, that without a complaint from the Court under Section 195 (1) (b), Criminal P. C., the proceedings now pending in C. C. No. 2 of 1950 cannot be enquired into.

(2.) The petitioner is the managing director of Messrs. Eaman and Eaman Limited, a joint stock company running a fleet of motor buses in the Tanjore District. O. S. No. 37 of 1944 in the Court of the Subordinate Judge of Kumbakonam was a suit for a declaration that a sale by defendant 3 therein to defendant l (present petitioner) was void and inoperative and for recovery of possession of a number of buses which formed the subject-matter of the suit. The plaintiff in that suit is the present respondent and his claim was that he purchased the buses from defendant 3, but that after having sold the same to the plaintiff, defendant 3 again purported to sell them to defendant 1 firm which sale had no authority or justification. O. S. No. 37 of 1944 filed on 8-10-1944 was on the ground that the plaintiff purchased the buses on 10-4-1944. The contentions of defendant l, the present petitioner, among others were that the sale to the plaintiff by defendant 3 was a collusive transaction made with the object of resiling from the earlier sale to him. While the suit was pending, the plaintiff applied for the appointment of a receiver and he was appointed receiver on 7-8-1945. As receiver, the plaintiff got possession of the buses and was running the same. There was a decree as prayed for in O. S. No. 87 of 1944 and the plaintiff who functioned as a receiver till then applied to continue in possession in his own right and this was ordered on 18-9-1946. Thereupon, defendant l filed an appeal to this Court against the decree of the Subordinate Judge and the same came up for hearing before the Hon'ble Chief Justice and Mack J. By their judgment dated 2-9-1949, they allowed the appeal and dismissed the plaintiff's suit with costs. Thereafter, the present petitioner, as defendant 1, applied by B, A. No. 883 of 1949 in E. P. No. 183 of 1949 to the Subordinate Judge, Kumbakonam, for restitution of the buses taken away from his possession. In that application it was claimed that damages amounting to a lakh of rupees should be ascertained and also that before the amount was ascertained the buses in the possession of the plaintiff-respondent should be attached. The affidavit in support of the application states that the attachment of all the properties of the plaintiff described in the schedule to the application filed along with the affidavit should be ordered under Order 21, Rule 42, Civil P. C., and that the plaintiff should be called upon to give security for Rs. 84,000 due as damages and Rs. 31,000 being the value of the buses and if the plaintiff failed to give adequate security to the satisfaction of the Court, the order of attachment should be made absolute. The third prayer was for the appointment of a receiver. E. A. No. 389 of 1949 supported by the affidavit was filed in Court on 26-10-1949 praying for the reliefs mentioned above. In addition to the affidavit dated 26-10-1949, another affidavit was also filed in support of the application.

(3.) Thereafter, the plaintiff-respondent filed a complaint on 5-1-1950 before the Joint Magistrate of Kumbakonam alleging that in the affidavit filed by the defendant-petitioner in support of his restitution application, there are statements which are false and also defamatory of the plaintiff-respondent. He, therefore, prayed that as defendant l has committed an offence under Section 500, Penal Code, the matter should be enquired into and the defendant punished. In the sworn statement of the same date the complainant alleged that the accused filed an affidavit containing false imputation in order to defame him and that all the defamatory statements are set out in the complaint. After summons was issued to the accused, he filed an application on 10-2-1950 raising a preliminary objection that the complaint cannot be proceeded with in the absence of a complaint by the Court under Section 195 (1) (b), Criminal P. C. The reasons alleged are that the subject-matter of the complaint relates to the statements made by the accused in an affidavit filed before the Subordinate Judge of Kumbakonam in support of the prayer for attachment of the complainant's properties and the appointment of a receiver and since, according to the complainant, the statements were false, they constitute an offence under Section 193, Penal Code, for taking cognizance of which a complaint by Court is a necessary pre-requisite and in the absence of a complaint from the Subordinate Judge as provided for under Section 195 (1) (b), Criminal P. C., the Joint Magistrate has no jurisdiction to entertain the complaint and proceed with the enquiry. The learned Joint, Magistrate overruled the preliminary objection on the ground that Section 195, Criminal P. C., did not apply to a case of defamation. He distinguished an unreported decision of this Court and found that a complaint by the Court was not necessary for taking action for an offence of defamation under Section 500, Penal Code. As stated already, it is against the order of the Joint Magistrate overruling the preliminary objection that this revision petition has been filed. The entire case has been posted before this Full Bench on account of a conflict of decisions in this Court and with the object of resolving this conflict.