BISHAN SINGH Vs. RAM NAGINA SINGH

JUDGEMENT

(1.) FOR Opposite Party. Order. - - This rule has been obtained by the petitioner who has been convicted by Sri R. C. Sen, Magistrate, First Class, Howrah, of having committed an offence punishable under Section 500, Penal Code and sentenced to pay a fine of Rs. 200, in default, to undergo rigorous imprisonment for three months. An appeal was taken to the Sessions Judge and it was dismissed. There -after this rule has been obtained.

(2.) THE facts briefly are as follows: The accused Bishan Singh went to a Grain Shop on a bicycle and leaving the bicycle outside he entered the Grain Shop. He borrowed the bicycle from one Mahadeo. When he came out be found the bicycle missing and was informed by some persons that a carpenter named Ram Nagina had taken the bicycle. Upon this in -formation being received, he went to his superior officer, B. N. Railway, at Shalimar, and inform -ed him of the incident. A document was written out and signed by Bishan Singh and it was taken to the Government Railway Police where it was treated as a first information report. The Police investigated the case and returned a charge sheet against Ram Nagina. He was tried and acquitted. Thereafter Ram Nagina filed a petition of complaint before the Sub -Divisional Magistrate, Howrah, in the following terms :

(3.) I shall consider the first contention. Learned advocate points out that if it be held that the accused made a false -complaint at the thana knowing that there was no just or lawful ground for making such complaint, then the offence committed by him would be one punishable under Section 211, Penal Code and that as the offence had been committed in or in relation to a proceeding in Court no Court had jurisdiction to take cognizance of such offence except on the complaint in writing of the Court in which those proceedings had been held or of some other Court to which such Court was subordinate. Now, there can be no doubt that if it is held that the accused falsely charged Ram Nagina with theft knowing that there was no just or lawful ground for making such charge he would be guilty of an offence punishable under Section 211, Penal Code. There can also be no doubt that if he is guilty of an offence punishable under Section 211, Penal Code, he would also be guilty of having committed an offence punishable under Section 500, Penal Code as there would be no ground for holding that he acted bona fide. I should like it to be clearly understood that I am not suggesting that the accused is guilty of an offence punishable under Section 211, Penal Code. I am acting on the assumption that he has committed such an offence. Now, if such an offence has been committed, it was committed in relation to or in connection with proceedings in Court because the matter went up for trial and Ram Nagina was acquitted. No Court could take cognizance of such an offence unless the Court in which the trial was held or a Court to which such Court was subordinate complained. Here, admittedly no complaint was lodged by any such Court but Ram Nagina adopted the device of filing a complaint charging the accused not with the offence punishable under Section 211, Penal Code, but with the offence of defamation. It was argued on behalf of the complainant, Ram Nagina, that with respect to the offence of defamation punishable under Section 800, Penal Code, the Court could take cognizance of it without any complaint being made in accordance with the provisions of Section 195(1)(b), 476, Criminal P. C. and therefore there was no defect of jurisdiction in the present case which was a case of defamation. For this proposition, reliance was placed on a decision of a Special Bench of this Court in the case of Satish Chandra v. Ram Dayal, 24 C. W. N. 982:(A.I.R. (8) 1921 cal. 1 : 22 or. L. J. 81 S. B.). On behalf of the petitioner, it was argued that if the offence committed be one punishable under Section 211, Penal Code, the Court cannot exercise jurisdiction and take cognizance of such offence by whittling it down and treating it as an offence punishable under Section 500, Penal Code and for this purpose reliance was placed upon the case of Prafulla Kumar Ghose v. Harendra Nath, 44 cal. 970 : (A. I. R. (4) 1917 Cal. 708 : 18 Cr. L. J. 377) and the case of Ibrahim v. Emperor, 29 Cr. L. J. 849 : (111 I. C. 433 Cal.), where both the previous mentioned cases were considered. In my opinion the point for decision in the Special Bench case was whether a person making a false statement in Court could claim an absolute privilege. The point under discussion was not directly in issue but there were certain dicta which taken out of their context may lend support to the contention urged on behalf of the complainant Ram Nagina. There is a passage however at p. 1000 of that case, Satish Chandra v. Ram Dayal, 24 C.W.N. 982:(A. I. R. (8) 1921 Cal. 1:22 Cr. L. J. 31 (S.B.) which is to this effect :