P M KAMATH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This is a revision filed against the order of the Stationary Sub Magistrate, Bhavani. The petitioner herein preferred two complaints against one N. Chidambaram Mudaliar, an inspector of Police before the Sub Divisional Magistrate, Gobichettipalayam, one complaint was made on 22-4-1950 and the other on 2-11-1950. Both were made before the same Sub Divisional Magistrate. In both the cases, Chidambaram Mudaliar, the Inspector of Police was discharged. The said Chidambaram Mudaliar thereafter moved the police to file a charge sheet against the petitioner herein under Section 47 of the Madras District Police Act a petition was, thereupon, filed in this court to quash those proceedings on the ground that complaint by the Sub Divisional Magistrate under Section 195 (I) (b) of the Criminal Procedure Code was necessary. The petition came on for hearing before Ramaswami J. who dismissed the petition but observed that that was not the stage when the High Court will interfere and the points taken must be taken before the trial court and the trial court should take into consideration these objections as and when they had to be considered and dispose of the case according to law. In an earlier decision reported in -- 'Innasia Pillai v. Perumal Chettiar', Ramaswami J. has referred to a certain Circular Order issued by this court in 1931. In that Circular order, it is mentioned that in warrant cases accused persons before they are charged and put on their defence anticipate their defence by petitions raising preliminary points upon which the court passed Judgment and those judgments are then brought up in revision to the High Court pending which the trial of the case is adjourned. By the Circular order this court desired to impress upon the lower courts that this procedure is unwarranted and makes for delay and extra work. It was further stated that an accused person has no right to raise a preliminary point before he is charged; he must wait to defend himself till he is charged and if he is convicted, his first remedy is in most casts by way of an appeal. So far as I am concerned, this is the first time I see this Circular order as quoted in the above decision. Speaking from personal experience, I think the practice in this High Court has been that where a preliminary objection to the very cognizance of the offence by the Magistrate could be taken, such point can be raised before the lower court itself and, in fact, it ought to be raised before the lower court and then the aggrieved party may come up in revision before this court; needless waste of time would be avoided when such preliminary objections are taken and are upheld. The decision of Lakshmana Rao J. in --'Parandhamayya v. Nagabhushanam', AIR 1939 Mad 579 (B), is authority for the position that when the objection raised goes to the root of the case it should not be reserved for consideration till the entire evidence is recorded. In cases where the court cannot take cognizance of certain offences unless on complaint by court or other authority and there is no complaint by court or the other authority, if the accused is not permitted to raise the preliminary objection he will be compelled to undergo the whole trial and if, on the merits, he is convicted, he must go to Jail and raise the point in appeal; though if raised as a preliminary objection, it may be allowed and the complaint itself would be dismissed. With great respect to Ramaswami J. I do not think that he intended that such a point should not be taken at all as a preliminary objection, nor could he have intended that if raised it should not be considered as a preliminary objection. He seems to have extracted the Circular order for the purpose of the case before him and I think the case itself reported in -' does not decide the point. On a wrong interpretation of the above decision, the lower court has refused to consider the objection raised and refused to decide it.

(2.) It is clear from the facts stated that the petitioner prosecuted the Inspector of Police before the Sub Divisional Magistrate in two cases and the Sub Divisional Magistrate disposed of the cases. It has been held in a series of decision that once a complaint goes to court and the accused is discharged, thereafter for any complaint by the discharged person in respect of the complaint made against him to the court, the complaint of the court is necessary for an offence under Section 211 of the Indian Penal Code. (Vide --'Dholiah v. Sub-Inspector of Police, Wellington Station', AIR 1931 Mad 702 (C) .) There are several other decisions in support of this view. There is no doubt about the fact that in this case the petitioner went to court and had the court's decision on his complaint. It clearly falls within Section 211. Section 195(1)(b), Criminal Procedure Code will apply to the facts of the case.

(3.) Assuming for a moment that it may fall under Section 182 of the Indian Penal Code or even Section 47 of the District Police Act, there is a series of decisions beginning with -- 'Perianna Muthiarian v. Vengu Aiyar', AIR 1929 Mad 21 (D) and ending with -- 'In re Chinnayya Goundan', AIR 1948 Mad 474 (E), in the latter of which all the earlier decisions have been collected and referred to and relied upon for the position that where the facts disclosed two offences; for one of which sanction is necessary and for the other sanction is not necessary or a complaint by the court is necessary for the one and a complaint by the court is not necessary for the other, the provisions relating to the sanction cannot be evaded. In this case it' will amount to clear evasion of the sanction if the petitioner is to be prosecuted for an offence under Section 47 of the District Police Act. This case falls within the scope of the decision in AIR 1948 Mad 474 (E). In the circumstances the complaint by the police cannot be taken cognizance of by the lower court and unless a complaint is filed by the Sub-Divisional Magistrate, the petitioner cannot be proceeded against either for an offence under Section 47 of the District Police Act or for an offence under Section 182 of the Indian Penal Code.