BHOLU Vs. PUNAJI

JUDGEMENT

(1.) THE non-applicant in this Court, Punaji, filed a complaint in the Court of the Sub-Divisional Magistrate, Chhindwara, against the present applicant, Bholu, under Section 211, I.P.C. The complaint against Bholu was that he had specifically reported to the police that the present non-applicant Punaji and another man had committed arson in respect of burning of the house of one (sic) waji in the village concerned. The complainant, before the Sub-Divisional Magistrate, alleged that the police, on enquiry, found no evidence against the present non-applicant and took no action on the ground that the report was a false and malicious one. The Sub-Divisional Magistrate held that, although the facts of the case might constitute an offence under Section 211, I.P.C., they nevertheless, equally constituted an offence under Section 182, I.P.C., and that, this being so, the complaint in writing of the public servant - in this case, the police officer who took report - was necessary under Section 195(1)(a), Criminal P.C., and that, as this was not forthcoming, he could not entertain the complaint.

(2.) THE complainant Punaji applied in revision to the Sesssions Judge, Chhindwara, for the reversing of the Sub-Divisional Magistrate's order in question. His application succeeded and the learned Sessions Judge held that no sanction was necessary in the circumstances of the present case and directed the Sub-Divisional Magistrate to make further enquiry into the complaint. The applicant (accused) has now come up on revision to this Court against the said order of the learned Sessions Judge.

(3.) THE decision in Emperor v. Hardwar Pal [1912] 34 All. 522 is, no doubt, in favour of the contention of the present applicant, but with all deference, I am unable to agree with the learned Judge who decided that case. I am humbly of opinion that the reasoning contained therein contains a fallacy, for it is assumed that, if, in the circumstances of a particular case, an offence under Section 211 is equally an offence under Section 182, I.P.C., previous sanction, or now a complaint, is necessary to the prosecution, even although no such sanction would be necessary under Section 195, Criminal P.C., if the offence were considered as solely falling under Section 211, I.P.C. The correctness of the decision in Emperor v. Hardwar Pal [1912] 34 All. 522 quoted above was doubted by Walsh, Ag. C J., and Ryves, J., in Emperor v. Kashi Ram A.I.R. 1924 All. 779, but doubt was only expressed on another question with which I am not directly concerned in the present case. The decision, however, contains what is, in my opinion, a valuable and sound definition of what, may be held to amount to making a charge within the meaning of Section 211, I.P.C. The definition is as follows: If the complainant confines himself to reporting what he knows of the facts, stating his suspicions, and leaving the matter to be further investigated by the police, or leaving the police to take such course as they think right in the performance of their duty, he may be making a report, but he is not making a charge. But if he takes the further step, without waiting for any official investigation, of definitely alleging his belief in the guilt of a specified person, and his desire that the specified person be proceeded against in Court,-that act of his, whether verbal or written, if made to any officer of the law authorized to initiate proceedings based upon the complement?s statement, whether amounting to an expression of the complainant's belief in the (sic) of the specified person, or his desire that Court proceedings be taken against him, amounts to making a charge.