EMPEROR Vs. BAJAJI APPAJI KOTE

JUDGEMENT

(1.) IN this revision application the petitioner, Bayaji Appaji, asks us to quash the proceedings under Section 211 of the INdian (Penal Code pending against him before the Sub-Divisional Magistrate, N. D. , Ahmednagar. On October 13, 1942, he gave information to the Police Patil of Shirdi that one Amolak Khushal was in possession of wheat stolen from his house. This complaint was investigated by the police and found to be false. So on a report made under Section 173 of the Criminal Procedure Code the Sub-Divisional Magistrate granted a "b" summary and the police then sent a charge sheet against the petitioner under Section 211 of the INdian Penal Code. But before that the petitioner had filed a regular complaint on the same facts before the Resident Magistrate, Belapur Road, and that complaint eventually ended in the discharge of the accused. The case against the petitioner under Section 211 of the INdian Penal Code which had been sent up by the police, but had been kept pending till then, was taken up for trial and the petitioner contended that the trial could not go on without a complaint from the Resident Magistrate, Belapur Road, under Section 195 (1) (b) of the Criminal Procedure Code. That contention was disallowed, and the trial was proceeded with. The learned Sessions Judge of Ahmednagar having declined to interfere, the petitioner has now made this application for revision.

(2.) WHERE information of an offence given to the police is followed by a complaint to a Magistrate's Court based on the same allegations, there is a conflict of judicial opinion as to whether the complaint of the Court itself is necessary under Section 195 (1) (b) for taking cognisance of an offence punishable under Section 211 of the Indian Penal Code in respect of the false charge made to the police. In the present case the learned Magistrate avoided the difficulty by holding that the theft about which the petitioner gave information to the police was different from the theft about which he lodged his complaint before the Magistrate. He says that in the complaint to the police Bayaji charged his own son and Amolak Khushal with a theft which had taken place fourteen days before October 13, 1942, whereas in his complaint before the Magistrate he alleged that the property was stolen on October 13, 1942. The learned Sessions Judge has rightly pointed out that in fact both the complaints related to the same theft. What was stated in substance in both the complaints was that the stolen wheat was discovered in Amolak's hut on October 13, 1942, and it had been stolen fourteen days previously. The Sessions Judge, however, says that Bayaji's complaint to the Police Patil related to the dishonest possession of wheat stolen from his own house and also from the house of Nanibai, while the subsequent complaint was only with regard to the wheat which had been stolen from his own house. He, therefore, thought that no complaint from the Magistrate was necessary under Section 195 (1) (b) of the Criminal Procedure Code for taking cognisance of the offence under Section 211 of the Indian Penal Code in respect of the dishonest possession of wheat stolen from Nanibai's house. The reference to that theft was made in his complaint only to explain how ,'he came to discover in Amolak's house wheat stolen from his own house. He never wanted the police to investigate the theft of wheat from Nanibai's house. He mentioned that theft only in the course of his narrative regarding the finding of his stolen wheat.

(3.) THIS is in consonance with the preponderance of judicial opinion. Two other reasons are given for that view. According to the Calcutta High Court the complaint before the police becomes merged in the subsequent complaint in Court. According to Ross J. in Shaikh Muhammad Yasin v. King-Emperor, by making a complaint to the Court the. informant has withdrawn the information from the category of mere police proceedings and has raised it to the category of a proceeding in Court. Both these reasons are practically the same and show! the necessity of a complaint by the Court if the informant is to be proceeded against.