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 (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.) It is not disputed here that the petitioner's complaint before the Police Patil of Shirdi and that before the Resident Magistrate at Belapur Road related to the same incident and the identical offence. In both he charged Amolak Khushal with dishonestly receiving wheat stolen from his house knowing or having reason to believe that it was stolen property. The Police found the complaint to be false and the complaint before the Magistrate ended in the discharge of Amolak. Can Bayaji be prosecuted by the Police under Section 211 of the Indian Indian Penal Code in respect of the information given to the Police Patil, in the absence of a complaint from the Magistrate? According to Allahabad High Court he can be, but according to other High Courts he cannot be. No decided case of this High Court exactly bearing on this point is brought to our notice. In Tayebulla V/s. Emperor (1916) I.L.R. 43 Cal. 1152 and Brown v. Ananda Lal Mullick (1916) I.L.R. 44 Cal. 650 the Calcutta High Court held that where an information to the Police was followed by a complaint to the Court, based on the same allegations and on the same charge, and such complaint was investigated by the Court, the sanction or complaint of the Court itself was necessary for a prosecution of the informant, under Section 211 of the Indian Penal Code, even in respect of the false charge made to the police. After the amendment of the Criminal Procedure Code in 1923 instead of the sanction of the Court a complaint in writing by the Court or some Court to which it is subordinate is required. So in Sheikh Samir V/s. Sajidar Rahman (1926) I.L.R. 53 Cal. 824 it was held that where a complaint to the Police was followed by a complaint to the Court, the person who made the complaint could not be prosecuted under Section 211 of the Indian Penal Code except on a complaint of the Court. The Madras High Court has taken the same view in Re Parmeshwaran Nambudri (1915) I.L.R. 39 Mad. 677 and Dholliah V/s. King-Emperor (1931) I.L.R.54 Mad. 1018. The Patna High Court has gone even a step further and has laid down in Sheikh Muhammad Yassin V/s. King-Emperor (1924) I.L.R. 4 Pat.323 that in respect of a false charge made to the police, which alone is the subject-matter of the complaint under Section 211 of the Indian Penal Code, the complaint of the Court itself would be necessary for taking cognisance of it if a complaint was preferred to a Magistrate for a judicial investigation, even though that Magistrate did not in fact investigate the complaint. This was followed in Daroga Gope V/s. King-Emperor (1925) I.L.R. 5 Pat. 33 and Subhag Ahir V/s. King-Emperor (1931) I.L.R. 11 Pat. 155. A similar view has been taken in Sarup Singh V/s. Emperor [1939] A.I.R. Nag. 226, Rambrose V/s. King-Emperor (1928) I.L.R. 6 Ran. 578, and Chuhermal V/s. Emperor [1929] A.I.R. Sind 132. The Allahabad High Court has taken a contrary view in Emperor V/s. Kashi Ram (1924) I.L.R 46 All. 906, and Emperor V/s. Prag Datt (1928) I.L.R. 51 All. 382. In the former case it was held that an offence under Section 211 of the Indian Penal Code was complete when the charge was made, that is when a particular person was charged, before the police and that the mere fact that subsequent proceedings were taken against the person who was originally charged could not affect what was done when the original charge was made. That case was first heard by Boys J., who disagreed with the view of the other High Courts and thought that a false report or a false charge made outside Court, i.e. an offence under Section 211 of the Indian Penal Code committed outside the Court, could not be held to have been committed "in relation to a proceeding in a Court," if subsequently the case went into Court. He, therefore, referred the case to a bench of two Judges who fully agreed with the view expressed by him. That case was followed by Dalai J. (sitting singly) in Emperor V/s. Prag Datt. The learned Sessions Judge in this case seems to prefer the view of the Allahabad High Court.