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Emperor vs Sobarati Sain

Patna High Court · Decided on 28 January 1929 · Citation: AIR 1929 Patna 650

HON’BLE JUDGES
Chatterji, J · Adami, J
ACTS & SECTIONS REFERRED
Penal Code, 1860 (IPC) — Section 211, 380, 457
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Judgment

7 paragraphs · 365 words

Chatterji, J.—One Sobarati Sain lodged a first information at the thana making a complaint against certain persons of offences under Sections 457 and 380, I.P.C. The police, after inquiry, made a report to the Magistrate that the case brought by the complainant was maliciously false and that the complainant might be prosecuted u/s 211. The complainant was prosecuted with the result that he was found guilty and convicted by the Sub-Divisional Magistrate.

2.

In appeal the Sessions Judge set aside the conviction on the ground that no opportunity had been given to the appellant to prove his case before his prosecution u/s 211, I.P.C. was started. In support of his judgment we are referred to the case of Nandi Manjhi Vs. Dwarka Nath Dubey, .

3.

This ruling has absolutely no application to the facts of the present case. There the police report was challenged and the complainant made a petition to the Court. It is obviously the duty of the Court, if such a complaint be made to it, to take cognizance of it u/s 190, Criminal P.C. before taking action on the police report and prosecuting the man. No authority has been cited to support the contention that a Magistrate is bound to issue notice to the person against whom a complaint is made by the police and ask him to show cause why he should not be prosecuted.

4.

Reference was made on behalf the accused to the cases of Government v. Karimdad [1881] 6 Cal. 496 and Queen Empress v. Sham Lall [1887] 14 Cal. 707. In both these cases the accused appeared before the Magistrate and asked that his case might be investigated; and it was held that he should be given an opportunity to prove his case before being prosecuted on the police report. No such thing happened in this case.

5.

In my opinion the position taken up by the learned Sessions Judge cannot be justified in law. It appears that he has not considered the merits of the case as he disposed of the appeal on this technical ground. He should now consider the merits of the case and rehear the appeal.

Adami, J.

6.

I agree.