NISHIKANTA CHATTERJI Vs. BEHARI KAHAR

JUDGEMENT

(1.) This is a Rule obtained by Nishikanta Chatterji, who has been convicted by a Presidency Magistrate under Section 182, I.P.C., and sentenced to a fine of Rs. 100. The first point taken is that, upon a police report that the petitioner's case was false, the Magistrate proceeded to try him under Section 182, I.P. C, without giving him an opportunity to substantiate his own case, although he had filed a narazi petition. The facts are these: On 29 April the petitioner Nishikanta Chatterji went to the police station and made a case that, on the previous night, there was a theft from his room at 50, Ramtanu Basu Lane, in respect of a sum of Rs. 480 odd, and that he Suspected his servant Behari Kahar, who had absconded. The police officer questioned Behari Kahar, who stated that the case against him was totally false, that he had been a servant of the petitioner, that he had no wages for five months and when he asked for his wages the petitioner refused to pay him and threatened to put him in trouble and that there was a quarrel after which he left the service. The police officer, after hearing both sides, came to the conclusion that the petitioner's complaint was false. The police report was submitted on 3 May requesting that the petitioner, Nishikanta Chatterji, might be summoned under Section 182, I.P.C. The summons was issued on 4 May, calling upon him to appear on 19 May. He actually appeared on 1 June, but he did not file his narazi petition until 10 June. The Magistrate postponed action on the narazi petition and proceeded with the trial of the case under Section 182, and, on 22nd August, convicted and sentenced him to a fine of Rs. 100.

(2.) It is urged, on the authority of the cases of Gunamony Sapui V/s. Empress (1899) 3 CWN 758 and Isser V/s. Emperor (1910) 6 IC 415 that the procedure adopted by the trial Magistrate was wrong, that he should have postponed the trial of the case under Section 182, I.P. C, and that he should have first proceeded to hear the narazi petition and given him an opportunity to prove the truth of his complaint. The learned advocate, who has appeared for the Crown, argues that it would have been the proper course if the Magistrate had given the petitioner an opportunity of proving the truth of his complaint in open Court. But the petitioner's grievance on account of the omission of the Magistrate to give him the necessary opportunity should have been ventilated in due time and not kept for ventilation after he had been convicted under Section 182, I.P.C. It is pointed out that, in all the reported cases, where the High Court stated that the petitioner ought to be given an opportunity to prove his case, the petitioner had moved the High Court before he was convicted on a charge under S, 182, I.P.C. In my opinion, the argument has much force. It is one thing to postpone a trial while an opportunity is given to the petitioner to prove the truth of his complaint and quite another thing to quash a conviction on the ground that the opportunity was not given to the petitioner. As pointed out by Churning, J., in the case of Emperor V/s. Baharali Biswas , there is no provision in the law that before a Magistrate can inquire into a case under Section 182, I.P.C., on the complaint of a police officer, he must give the accused party an opportunity of proving the truth of his case, and that if the accused person is convicted without any preliminary opportunity being given to prove the truth of his case the conviction is not illegal on that account. In this case, it would have been a better procedure if the Magistrate had given the petitioner an opportunity to prove the truth of his case. But the trial cannot be said to have been illegal. The evidence adduced by the police officer was taken and all the evidence on the side of the accused person was taken and the Magistrate has given his decision after hearing fully both sides.

(3.) The next point taken is that the Magistrate came to no finding that the accused gave the information knowingly and believing it to be false, that he overlooked the fact that the petitioner did not make a charge of theft against Behari Kahar, but merely suspected him, that the learned Magistrate wrongly placed the onus upon the accused person, that he ought to have held that the onus lay on the prosecution to prove that the information lodged by the petitioner was false and that he lodged it knowing and believing it to be false, and that the findings of the Magistrate are not sufficient for a conviction under Section 182, I.P.C. The record has been fully placed by the learned advocates on both sides. The learned Presidency Magistrate has written a judgment in which he has merely discussed the evidence of the defence witnesses. He has not stated the points which it is the duty of the prosecution to prove, nor has he stated his findings upon any of these points. After criticising the defence evidence he merely says: "I find the accused guilty under Section 182, I.P.C." The learned advocate for the Crown points out Section 370, Criminal P.C, which lays down that, instead of recording a judgment in manner provided in the preceding sections, a Presidency Magistrate shall record only certain particulars and in all cases in which he inflicts imprisonment or fine exceeding two hundred rupees, or both, a brief statement of the reasons for the conviction.