Bachu Singh vs Tribeni Sah

Rowland, J.—This was presented in the, form of an appeal but an appeal does not lie as held in Kesharinandan v. Emperor AIR (1938) Pat. 19. It will therefore be treated as an application in revision.

The petitioner lodged a complaint on 6th April 1938 against four persons. The substance of the information was that on the previous day, 5th April, he had come to. Katcheri at Chapra and left his mare tied in the Katcheri compound while he went elsewhere. On his return the mare was-missing. Pour persons told him that they had seen the accused taking the mare away,. also that the accused had told them they were taking the mare to the petitioner. The Magistrate referred the complaint to the police whom he directed to make a first-information report and investigate. The police reported the case to be false but did not recommend a prosecution. The Magistrate agreed with the police report and entered the case in his register as false. Thereafter one of the persons named in the complaint, namely Tribeni Kalwar, presented a petition to the Magistrate for prosecuting the present petitioner u/s 211. The Magistrate refused to take any action as the complainant had not spoken of his own knowledge as to the removal of the mare by the accused persons but had reported it as hearsay from certain witnesses of whom three, who had during the police investigation, confirmed that they made such statement to the complainant. The Sub-Divisional Officer observed that the complainant could not be prosecuted for he filed a complaint believing that statement though that statement may be untrue. Tribeni appealed to the Sessions Judge who has allowed the appeal and ordered prosecution.

In revision it is contended that this is not a case in which there should be a prosecution. The complaint being based on hearsay it is practically incapable of proof that the complainant did not believe the information he had received and it is said that the learned Sessions Judge has confused suspicion with evidence and directed a prosecution in a case in which the facts to be proved are facts of which evidence cannot be forthcoming. Undoubtedly it is necessary, in considering an application for an order to prosecute u/s 476, to bear in mind that whereas had the original complainant gone to trial the entire burden of proof would have lain on the complainant, the opposite party will have to carry the whole burden, should the complainant be prosecuted u/s 211 and the ingredients of Section 211, go a good deal further than the mere absence of proof of the guilt of the person said to have been falsely charged with an offence. The complainant must have falsely charged such person with having committed an offence, that is to say, the person must be innocent. The complainant must have known that there is no just or lawful ground for the proceeding or charge, that is to say, there is no penalty in this Section for incautious or negligible acceptance of information which the complainant might have learnt by enquiry to be unreliable. Thirdly, there must have been an intention to cause injury to the person.

The last can in some cases be inferred from the relation of the parties when the other two elements are established. As regards the other two ingredients, it is important to remember that there is a difference between suspicion and evidence. The prosecution will have to establish facts irreconcilable with the innocence of the accused. Now, the Sessions Judge in giving his reasons says first'' that a perusal of the record raises a strong suspicion that Bachu Singh must have been aware of the falsity of his case; for it is improbable that complainant''s witnesses would have believed Tribeni''s explanation of taking the mare to Bachu Singh. Then a reference is made to the deficiency of evidence on the side of the complainants that the mare had been brought to the Civil Court compound. Then there is absence of corroboration of Bachu Singh''s story by his-pleader. Then reference is made to the fact'' of which the police found there was evidence that Tribeni was in Siwan on 5th and 6th April 1938 and the fact that Jugal, referred to in the complaint as an eye witness, had not fully supported the case but said that it was merely suspected that the accused might have stolen the mare. The Sessions Judge then says that the Magistrate was not warranted by the record in believing that Bachu had merely acted on statements made by his witnesses. The Sessions Judge then states:

Even on this view of the case, it must be held that it is the duty of every complainant, who professes to act on hearsay, to verify the information received by him before instituting a case against innocent persons and he cannot escape responsibility if enquiry subsequently shows that the case instituted by him had no foundation in fact while. resulting in harassment and inconvenience to the opposite party.

I do not think the Sessions Judge could have said this if he had carefully read Section 211. Prosecutions under that Section are not to be undertaken so lightly as this. There is no finding by the Sessions Judge that a prosecution is necessary in the interest of justice and though it has been held that the absence of such a finding is not necessarily fatal, it is certainly desirable that Courts dealing with these matters should apply their minds directly to the question; and in doing so, they should consider whether an attempt to use the law in aid of a private grudge is being made and whether the Courts should allow themselves to become the instrument of a private grudge and also what facts can be proved and whether these facts are likely to be sufficient to support the conviction. In this case Tribeni, the petitioner for prosecution, was admittedly an avowed enemy of Bachu Singh. As regards the facts that can be proved, it is obvious that a conviction cannot be based merely on improbability or on what a particular officer suspects. The police report which I have read indicates two points on which Bachu''s complaint may have contained deliberately false averments of facts. One is as to his coming to Chapra on 5th April. It appears that the police were told by the Bench Clerk that on that date Harinarain had come to Court in Chapra but Bachu Singh had not. If it can be proved that Bachu had not come to Chapra that morning, the entire case instituted by him is false and cannot have been instituted in good faith.

Another point is that the police had some information that the mare was lost not from Chapra Court but from the field in Bachu''s village. If this can be proved, the complaint of Bachu cannot but be false and the matters which have been referred to in the Sessions Judge''s order as matters of suspicion will naturally go in as indications of malicious intention and so on. As there is apparently some possibility of these two facts being definitely established, and as this is not an appeal but a revision, I do not think I should interfere and stop the prosecution from going forward.

I should mention one more matter, namely the alibi of Tribeni on 5th April as having been in Siwan. If the complaint in its generality was bona fide, I would not regard the fact that one accused person had been wrongly identified as a ground for instituting a prosecution u/s 211. In the result the rule is discharged.