Banti Pande vs Emperor

Dhavle, J.—This is an application in revision against a conviction of an offence u/s 211, I.P.C. with a sentence of one year''s rigorous imprisonment. A rule was also issued by this Bench calling upon the petitioner to show cause why the sentence should not be enhanced.

The petitioner was sleeping in his verandah on the night of the 10th September last, when he received three injuries including a dangerous 10" cut across the face from near the right ala of the nose to the superior angle of the scapula on the right side. He was taken next morning to the Bettiah hospital, where his condition was found to be so precarious that a report was made to the Sub-divisional Magistrate with a request that the man''s dying declaration might be recorded immediately. The Sub-Divisional Magistrate sent Pandit Hriday Narayan, a Sub Deputy Magistrate with second class powers, to record the petitioner''s statement if any.

The petitioner was accordingly questioned by the Sub-Deputy Magistrate and stated that he had been attacked overnight by three persons, Kishundut Pande, Gorakh Pande and Subhnarain Upadhaya and had chased them upto a distance of ten or twelve kathas when he had to stop on account of loss of blood. He further stated that on the previous Saturday (that is to say, two days before the assault) he had overheard the Sub-Inspector of the thana asking Deonandan Ojha, Sheo-narain (Subhnarain?) Upadhaya and Kishundut Pande to kill him.

The prosecution case was that the petitioner''s accusation against the persons named in his statement to the Sub-Deputy Magistrate was false and malicious, that these persons had nothing to do with the assault on the petitioner, and that the petitioner himself had stated at the time that an unknown thief had attacked him. The defence was that the petitioner''s statement was true and that after the assault the petitioner became unconscious and made no statement at all.

The trying Magistrate and the Sessions Judge concurrently found that the petitioner''s statement was false, while the malice between the parties was really common ground.

Mr. Manohar Lal for the petitioner has endeavoured to show that the prosecution evidence ought not to be accepted. He has referred to the evidence of the Sub-Assistant Surgeon that the petitioner was in a "somewhat subconscious state" and would not be able to speak for twelve or thirteen hours from four or five minutes after receiving the injury on the face which was dangerous to life. There is however no dispute that the petitioner did in fact make a statement to the Sub-Deputy Magistrate in which he spoke not only of chasing his assailants for ten or twelve kathas, but also of what had happened on the previous Saturday. The Sub-Assistant Surgeon''s evidence is palpably over-coloured and goes the length of saying that the petitioner

probably could not run but could walk for ten, fifteen or twenty cubits or so

after the injury on the face contrary to what the petitioner himself stated. Mr. Manohar Lal has also taken us into the evidence of the six prosecution witnesses, Nos. 6, 7, 15, 8, 16 and 19, on whom the learned Sessions Judge specially relied in support of the prosecution story that the petitioner said at the time that he had been attacked by an unknown thief. It is true that Tilak-dhari Pande (P.W. 6) admits that he only heard the story not from the petitioner but from Phagu and Saudagar (P. Ws. 16 and 19), and true also that Harihardut Pande (P.W. 15) is not only a nephew of the petitioner''s but also a son of Nageswar (P.W. 13) upon whom (an uncle of Gorakh) the learned Sessions Judge was not disposed to place much reliance, while Bahori Chamar (P.W. 8) does not really seem to have been on good terms with the petitioner ; but even so there does not seem to be any sufficient reason to disbelieve the evidence of Bipat Chamar (P.W. 7), a servant of the petitioner, and Phagu and Saudagar, though these two witnesses have their houses on the land of Gorakh. As regards the conspiracy between the Sub-Inspector and Kishundut and others, Mr. Manohar Lal has referred to the admission of the Sub-Inspector that in walking back on the Saturday he passed some bushes, from behind which ha could have been overheard, but it is obvious that the does not go far to indicate the truth of the alleged conspiracy, and the incident is in itself so highly improbable that Mr. Manohar Lal himself has had to argue on the evidence not that the Sub-Inspector actually asked the man to kill the petitioner but that the petitioner may have been led by an over-heated imagination to think so. In my opinion the evidence leaves no doubt that there was in reality no conspiracy, that the petitioner did not in fact recognize in the dark any of his actual assailants as he next day claimed to have done, and that his accusation against Kishundut, the Sub-Inspector and others was both false and malicious.

The charge framed against the petitioner was that he:

on or about the 11th day of September 1998, at the King Edward Memorial Hospital, Bettiah, with intent to cause injury to Kishundut Pande, Leyakat Hussain, Sub-Inspector and others, caused to be instituted a criminal proceeding against them before the Sub-Deputy Magistrate of Bettiah, charging the said Kishundut Pande and others with having committed an offence, viz., attempt to murder, u/s 307, I. P.C., and the Sub-Inspector of Polios with abetment of such an attempt, knowing at the time that there was no just or lawful ground for such proceeding or charge, and thereby committed an offence punishable u/s 211, I.P.C.

If, as was apparently the prosecution case below, a criminal proceeding was actually instituted, a reference to Schedule 2, Criminal P.C., shows that the case u/s 211 should have been tried by the Court of Session alone, since the attempt to murder involved the causing of hurt and was accordingly punishable with transportation for life. The conviction of the petitioner by a First Class Magistrate would therefore be void: see Section 530 (p), Criminal P.C.

The charge speaks of causing a criminal proceeding to be instituted before the Sub-Deputy Magistrate of Bettiah. We are not concerned in this case with such modes of instituting criminal proceedings as lodging information of a cognizable offence with the police, Karim Buksh v. Queen-Empress [1890] 17 Cal. 574, or in the case of certain grave offences giving information to village headmen or others who are under a statutory obligation to communicate such information forthwith to the nearest Magistrate or to the officer in charge of the nearest police station: Sessions Judge Tinnevelly Division v. Sivan Chetti [1909] 32 Mad. 258. The petitioner could only have caused a criminal proceeding to be instituted before the Sub-Deputy Magistrate, if at all, by making a complaint to him. Now a complaint is defined in Section 4, Criminal P.C. as:

the allegation made, orally, or in writing, to a Magistrate, with a view to his taking action under this Code, that some person...has committed an offence.

This implies that the Magistrate to whom such an allegation is made must be duly empowered to take action on it, and Section 201 of the Code provides that if a complaint is made to a Magistrate who is not competent to take cognizance of the case, he shall direct the complainant to the proper Court and return the complaint, if made in writing, with a proper endorsement. Assuming for the present that the petitioner''s statement to the Sub-Deputy Magistrate amounted to a complaint, the Sub-Deputy Magistrate could only take cognizance of the case if specially empowered by the Local Government or the District Magistrate; but it has not been suggested on behalf of the Crown that the Sub-Deputy Magistrate had any such authority. It is true that according to Section 529(e), Criminal P.C. if a Magistrate not empowered by law to take cognizance of an offence u/s 190(1)(a) erroneously and in good faith does so, his proceedings shall not be set aside merely on the ground of his not being so empowered. But, as was expressly ruled in Bengali Gope Vs. King-Emperor,

this will not have the effect of making the complainant liable for prosecution for a false complaint by reason of the Magistrate''s having taken cognizance of it without power to do so.

The charge as framed must therefore fail on the ground that no criminal proceeding could have been instituted before the Sub-Deputy Magistrate so as to attract the operation of Section 211, I.P.C.

It has been urged on behalf of the Crown that if the Sub-Deputy Magistrate was incompetent to take cognizance, the petitioner was still guilty of an attempt to cause proceedings to be instituted before that Magistrate. This contention must obviously fail if even apart from the incompetency of the Sub-Deputy Magistrate to take cognizance on a complaint, the petitioner''s statement or dying declaration did not amount to a complaint Now, it is of the essence of a complaint that the accusation should have been made with a view to action being taken under the Criminal Procedure Code. The petitioner''s statement does not ask for any action to be taken, but an express request to that effect is unnecessary. Whether the statement was made with a view to action being taken upon it as upon complaint must be determined in the light of the circumstances. In an ordinary case the complainant goes of his own accord to the Magistrate and makes his accusation, and it is thus easy to infer that he does so with a view to action being taken under the Code. In the present case it was not the petitioner who went to the Magistrate but the Sub-Deputy Magistrate who came to the petitioner, as ordered by the Sub-Divisional Magistrate on the report from the hospital that the petitioner''s condition seemed to be very precarious and that his dying declaration might be recorded immediately. It was in this condition that the petitioner was approached by the Sub-Deputy Magistrate, who began, by explaining that he was Magistrate and had come to take down the petitioner''s statement The Sub-Deputy Magistrate further informed the petitioner that the statement made by him would be used when occasion arose, a curious warning to administer to a dying complainant, though appropriated the case of accused persons when their confessions are to be recorded u/s 164, Criminal P.C.

He did not, however, speak of having been sent by the Sub-Divisional Magistrate to record the petitioner''s "dying declaration" or of the possibility of any statement made by the petitioner being treated as a complaint. Can it be said in the circumstances that the petitioner understood that he was being invited to make his complaint, if any, or that he made his statement with a view to action being taken on it under the Criminal P.C.? It is significant that when eight days afterwards the Sub-Divisional Magistrate, in the course of his enquiry, questioned the petitioner in the hospital, he found the petitioner unwilling to make any statement, though according to the Sub-Divisional Magistrate the reason apparently was that the petitioner was very weak and wanted time. There is nothing in the circumstances to show that the statement made by the petitioner was intended by him as the complaint of an aggrieved party rather than, for example, as the statement of a witness. In my opinion the prosecution has not succeeded in establishing clearly that the petitioner''s statement amounted to a complaint in this regard, and it is therefore impossible to deal with the petitioner on the footing that be attempted to cause a criminal proceeding to be instituted before the Sub-Deputy Magistrate.

Besides the institution of a criminal proceeding, Section 211, I.P.C., also deals with falsely charging any person with having committed an offence. The charge actually framed against the petitioner also speaks of his charging Kishundut Pande and others with having committed the offence of attempt to murder and the Sub-Inspector of Police with abetment of such an attempt. Unlike a "complaint" "false charging" is not de-fined by statute, but it has been repeatedly held to mean a false accusation made to any authority bound by law to investigate it or to take any step in regard to it.

In the decision from Section J, Tinnevelly Division v. Siven Chetty [1909] 32 Mad. 258 to which I have already referred it is shown how such an accusation may be effectively made in certain cases to a person possessing no magisterial powers but bound by law to communicate it forthwith to the nearest Magistrate or the officer in charge of the nearest police station. The petitioner''s statement clearly contains a grave accusation against four or five persons, and it was made to an officer with the powers of a Second Class Magistrate who had actually been deputed by the Sub-Divisional Magaistrate to record it. But it was not recorded in the course of a police investigation and therefore does not come u/s 164(2), Criminal P. C. under which (if applicable) it would have been the duty of the Sub-Deputy Magistrate to forward it to the Sub-Divisional Magistrate. Mr. Agarwala who appears for the Crown has not been able to point to any statutory provision requiring the Sub-Deputy Magistrate in the circumstances of this case to forward the petitioner''s statement to the Sub-Divisional Magistrate. The statement was. recorded as a dying declaration," but the law does not require dying declarations to be recorded by Magistrates, and while an individual Magistrate who records a dying declaration may happen to be empowered to take cognizance, Mr. Agarwala has to concede that, apart from such powers of cognizance, an accusation contained in a dying declaration made to a Magistrate stands on no better footing than an accusation made to a private individual, such as the compounded in the hospital in the present case, without any statutory obligation to move in the matter at all. As was observed in Zorawar Singh v. Emperor [1911] CriLJ 433:

it has been held by the Calcutta, Madras and Bombay High Courts that the words "falsely charges" in Section 211, I.P.C., must be construed along with the words which speak of the institution of proceedings in the earlier part of the section, and further that the test is whether the person who made the statement which is allaged to constitute the charge did so with the intention and object of setting the criminal law in motion against the person against; whom the statement is directed: Karim Buksh v. Queen-Empess [1890] 17 Cal. 574, Jugobundoo Karmakar v. Emperor [1903] 30 Cal. 415, Queen-Empress v. Karigowda [1895] 19 Bom. 51 and Rayan Kutti v. Emperor [1903] 26 Mad. 640.

A false charge within the meaning of Section 211 must thus be made to a competent Magistrate or other person with a statutory standing in the matter and must further be made with the object of setting the criminal law in motion, the latter a requirement which I have considered when dealing with the question whether the dying declaration could, apart from the competency of the Sub-Deputy Magistrate, amount to a complaint. It follows that the petitioner did not by his statement to the Sub-Deputy Magistrate falsely charge any person within the meaning of Section 211, I.P.C.

It was observed in Daroga Gope v. Emperor AIR 1925 Pat. 717 that an offence u/s 211, I.P.C., must always include an offence u/s 182, I.P.C., and that some false accusations may come within Section 182 without constituting offences u/s 211. It is, however, an essential ingredient of an offence u/s 182 that the offender should intend to cause, or should know to be likely that the information given by him to the public servant will cause, the public servant

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person.

I have already referred to the circumstances in which the petitioner made his statement to the Sub-Deputy Magistrate, bow he was thought to be dying, and only spoke when questioned by the Sub-Deputy Magistrate, and did not ask for any action. It seems to me that these circumstances negative the intent or knowledge without which there can be no offence u/s 162, to say nothing of facts that the Sub-Deputy Magistrate, as a public servant, had no lawful power or authority in the matter at all, even though he chose to put the petitioner on oath, and that the petitioner''s statement would have been forwarded by him to the Sub-Divisional Magistrate irrespective of its truth or falsehood.

In dealing with the question of sentence the learned Sessions Judge has observed that:

it was a grave offence to make false statements of the kind before a Magistrate, knowing that such statements might ha used in evidence with all the sanctity attached to a dying declaration, and might possibly have led to innocent persons being convicted on a capital charge.

The mention of the possible use of the dying declaration as evidence leading to a conviction on a capital charge suggests an offence u/s 194, I.P.C., and it was in fact when the learned Assistant Government Advocate argued that the petitioner was guilty of an offence under this section that we issued the rule for enhancement of the sentence. Section 194 runs:

Whoever gives or fabricates falsa evidence, intending thereby to cause, or knowing it to be likaly that he will thereby cause, any persons to be convicted of an offence which is capital...shall be punished with transportation for life....

It is not suggested that the petitioner gave false evidence within the meaning of the section. Did he fabricate false evidence? Fabricating false evidence is defined in Section 192, and while a false dying declaration may well, in certain circumstances, go in as evidence, the intent that it may appear in evidence in a judicial proceeding and cause an erroneous opinion to be entertained touching a point material to the result of such a proceeding, which is an essential ingredient in the definition, cannot easily be inferred of a man who, like the petitioner, was thought to be dying at the time and did nothing by himself or by his friends to communicate with or seek any redress from the authorities. The intent or knowledge necessary u/s 194 presents an even greater difficulty in the application of that section, for it postulates a feeling in the mind of the petitioner that his recovery was impossible. There is nothing in the evidence to show that such was the mental condition of the petitioner at the time he made the statement to the Sub-Deputy Magistrate.

It seems hardly necessary to refer to other difficulties in the case. If a criminal proceeding was instituted or attempted before the Sub-Deputy Magistrate or if an offence u/s 194 was committed in or in relation to such a proceeding, cognizance of the offence could only have been taken on the complaint of the Sub-Deputy Magistrate or of some other Court to which his Court is subordinate. The subordination applicable is given in Sub-section (3), Section 195, and is different from that given in Section 17(2), Criminal P.C. For the purpose of a prosecution u/s 211, I.P.C. the complaint of the Sub-Divisional Magistrate was thus not a sufficient compliance with the law, and the evidence of the Sub-Divisional Magistrate, together with the complaint made by him, and his statement that he made his enquiry u/s 159, Criminal P.C. suggests a good deal of confusion about the actual position.

In my opinion the petitioner is not guilty of the offence charged or of any other offence that can properly be taken into consideration at present. I would reverse the conviction and sentence passed upon him, and discharge the rule for enhacement of the sentence.

Courtney-Terrell, C. J.

I agree.