Government Advocate vs Kumar Singh

Dhavle, J.—Kumar Singh or Kumar Singh Lai who described himself as "by profession mukhtar, practising as mukhtar in Chamber, at Purnea", filed a plaint claiming damages for defamation from Babu Durga Prasad, a senior member of the Purnea Bar, together with an application for permission to sue as a pauper. The application was opposed by the opposite party and also by Government, and was dismissed by Mr. S.A. Fatb, Subordinate Judge of Purnea, to whom it fell to dispose of it. Kumar Singh thereupon made a petition to the Governor in Council, through the District and Sessions Judge, Purnea, praying for sanction u/s 197, Criminal P.C. to prosecute the Subordinate Judge u/s 196, I.P.C., for corruptly using the evidence of Bam; Khelawan Mistry (a witness for the upon site party in the pauper proceedings) as true, knowing it to be false.

The petition was sent by post in an envelope addressed.1 to the then District and Sessions Judge by name. Mr. P.C. Chaudhuri, the District Judge, noticed this and called upon Kumar Singh to appear and state the facts fully and swear an affidavit in support of them, Kumar Singh appeared and stated that he had addressed the envelope personally to Mr. Chaudhuri as the petition was of a confidential nature and that the petition was really meant for the Court of the District Judge. He also offered to make a statement in support of the charges made by him against the Subordinate Judge in; the petition, and Mr. Chaudhuri accordingly recorded his statement. Kumar Singh also swore an affidavit before the Sheristadar of the District Judge in support of his allegations, but Mr. Chaudhuri required an affidavit sworn before a First) Class Magistrate. Kumar Singh did not supply this, nor did he appear again before Mr. Chaudhuri.

After looking into the papers, Mr. Chaudhuri decided, that Kumar Singh''s application be forwarded to Government for orders, with a copy of his orders in which he had arrived at the conclusions that there was no reasonable ground whatever for attributing a corrupt intention to the Subordinate Judge in dismissing Kumar Singh''s pauper application, that Kumar Singh ought to be prosecuted u/s 211, I.P.C., and that Mr. Chaudhuri would have had no hesitation in filing a complaint under that section but for the fact that the petition was really addressed to the Governor in Council.

The petition together with Mr. Chaudhuri''s order was aotually forwarded to Government by Mr. Chaudhuri''s successor, Mr. A.P. Mukherjee. The Governor in Council declined to sanction the prosecution of Mr. S.A. Fath u/s 196, Penal Code or under any other section of the Penal Code, and further directed the Public Prosecutor of Purnea to move the District and Sessions Judge to make a complaint against Kumar Singh u/s 211, I.P.C., acting u/s 195(1)(b), Criminal P.C. If the District Judge should decide that no such complaint was necessary on the ground that the charge against the Subordinate Judge was not made in relation to a proceeding in Court, and if he should also decline to make a complaint in his capacity of a public servant concerned in a false charge against his subordinate, the Public Prosecutor was ordered himself to file "a complaint by direction of Government in the Magistrate''s Court". The Public Prosecutor accordingly moved .Mr. A.P. Mukharji, the District Judge, who made a written complaint to District Magistrate of Purnea for Kumar Singh''s prosecution u/s 211, I.P.C. The District Magistrate took cognizance and transferred the case for disposal to a Deputy Magistrate, from whose file it was later on transferred to the file of another Deputy Magistrate. Maulavi Shah Wali-ur-Rahman, a Deputy Magistrate of the First Class, thus tried the case. He found that the Subordinate Judge had not corruptly used the evidence of Ram Khelawan Mistry as true knowing that it was false, and that Kumar Singh had falsely charged him with intent to cause injury to him.

After overruling the contentions of law that were advanced before him, he held that Kumar Singh could "very well be convicted u/s 211, I.P.C. or even u/s 182, I.P.C. The charge as framed was however one u/s 211, I.P.C., and on this charge the Magistrate found Kumar Singh guilty, awarding a sentence of eighteen months'' rigorous imprisonment.

Kumar Singh appealed, and Mr. Mukharji who heard the appeal came to the same conclusion on the facts as the trying Magistrate. He however held that the complaint of the District Judge was not legal as Section 476, Criminal P.C. was inapplicable, that there was no offence committed u/s 211 because the false charge of an offence u/s 196, I.P.C. was made to Mr. Chaudhuri who had no statutory standing in the matter Banti Pande Vs. Emperor, and that Section 182; I.P.C. was also inapplicable because the complaint was made not by Mr. Chaudhuri but by his successor in office Kantir Missir Vs. Emperor, and also because the District Judge had no lawful power which he could use to the injury or annoyance of the Subordinate Judge under him. He accordingly allowed the appeal and set aside the conviction and sentence passed upon Kumar Singh. Against this acquittal, Government have filed the present appeal u/s 417, Criminal P.C.

There is no dispute that Kumar Singh sent the petition (Ex. 17) to the Governor in council through the District and Sessions Judge of Purnea, in which sanction u/s 197, Criminal P.C. is prayed for to prosecute Mr. Fath, the Subordinate Judge, for corruptly using (in the proceedings upon Kumar Singh''s pauper application) the evidence of Bam Khelawan Mistry as true, knowing it to be false. Both the lower Courts have come to the conclusion on the facts that the accusation was groundless and false and that an offence u/s 211 was made out against Kumar Singh. This is not accepted by Kumar, Singh who has urged that at any rate he reasonably believed that Mr. Fath had corruptly used Bam Khelawan''s evidence as true. I propose however first to deal with the law points in the case. The charge framed against Kumar Singh was:

That you on or about 1st August 1936, at Purnea with intent to cause injury to Mr. S.A. Fath, Subordinate Judge at Furnea, falsely charged the said Mr. S.A. Fath in your petition dated 29th July 1935 to His Excellency the Governor of Bihar and Orissa in council through the District and Sessions Judge of Purnea, with having committed an offenoe u/s 196, I.P.C., to wit, having corruptly used as the evidence the evidence of witness Bam Khelawan Mistry in Misc. Pauper Case No. 45 of 1931 Kumar Singh v. Babu Durga Prasad in the Court of the Subordinate Judge of Furnea which he (Mr. S.A. Fath) knew to be false, knowing at the time that there was no just or lawful ground for such charge against the said Mr. S.A. Fath, and thereby committed an offence punishable u/s 211....

Now Section 211 deals in the first part with two alternatives: (1) instituting or causing to be instituted any criminal proceedings against a person, and (2) falsely charging any person, while the second and graver part of the section deals with a case in which

such criminal proceeding is instituted on a false, charge of an offence punishable with...imprisonment for seven years....

It may be noticed in passing that the charge u/s 196, I.P.C. against Mr. Fath. If made out, would have been punishable with imprisonment for seven years. u/s 197, Criminal P.C., however, no Court could, except with the previous sanction of the Local Government, have taken cognizance of any offence alleged to have been committed by the Subordinate judge while acting in the discharge of his efficial duty. The Governor in Council having refused sanction, there could be no cognizance taken and no criminal proceedings instituted against Mr. Fath in respect of the accusation made by Kumar Singh. But this was not the only apparent bar to Kumar Singh�s instifution of criminal proceedings against the Subordinate Judge.

His allegation was that Mr. Fath had committed an offence u/s 196, I.P.C., in the pauper proceeding in his Court, and this section is among those mentioned in Section 195(1)(b), Criminal P.C. No Court could thus have taken cognizance of the offence alleged except on the complaint in writing of the Court of the Subordinate Judge (which would obviously have been out of question in this case) or of some other Court to which such Court was subordinate. Had Government come to the conclusion that the prosecution ought to be sanctioned, they could under Sub-section (2) of Section 197 have determined the person by whom the offence or offences for which the prosecution of the Subordinate Judge was to be conducted and could also have specified the Court before which the trial was to be held; but in view of the particular bar arising in the case from Section 195(1)(b), action would also have had to be taken to move the District Judge as presiding in a Court to which the Court of the Subordinate Judge as presiding in a Court to which the Court of the Subordinate Judge was subordinate to make a complaint of the offence in writing. If this aspect of the matter had been borne in mind, it may be doubted whether the learned Sessions Judge would have applied to this case the observations made in Banti Pande Vs. Emperor, and other cases in which no question of sanction or complaint by a Court or public servant arose, and whether he would have held that the District Judge had no statutory standing in the matter of the charge or accusation made by Kumar Singh Mr. Fath.

Although Section 211 I.P.C. speaks of falsely charging any person with having committed on offence neither the penal code nor the criminal procedure code difines what constitutes the making of a charge of an offence. It is at the same time settled law that the expression falsely charges must be construed along with the words which speak of the institution of proceedings in the earlier part of the section so that the test is

whether the person who made to a person who has which is alleged to constitute the chargedid so with the entention and object of setting the criminal law in motion against the person against whom the statement is direted is directed see Zorawar Singh v. Emperor (1911) I.C. 617.

An accusation made to a person who has nothing to do under the law with setting the criminal law in motion would thus not amount to a charge within the section. In Empress v. Jamoona (1881) 6 Cal. 620 where the question was whether there could be a conviction under the section in respect of a false charge or allegation of rape made against a noncommissioned officer mitter and Maclean, JJ. Held that the section had no application as the Station Staff Officer had neither magisterial nor police powers. The learned Judges went on to observe:

We do not think it is unduly refining the words of the section to say that the false charge must be made to a court or to an officer who has powers to investigate and send up for trial.

The language goes further than was probably meant as Mr. Mayne commented : See his Criminal Law of India para 376 End. 3. In Karim Buksh v. Queen Empress (1890) 17 Cal. 574 a case which has been repeatedly followed in this and other High Courts, a Full Bench of the Calcutta High Court held that by lodging at the police station a false information of mischief by fire u/s 436 I.P.C. the appellant had committed and offence falling within the second part of Section 211 I.P.C. between instituting proceedings on a false charge After referring to proceedings under Sections 107 and 109, Criminal P.C as apparently criminal proceedings which did not necessarily involve a charge of any offence the learned judge said.

On the other hand, a charge to the police of a non-cognizable offence may very possibly be a charge Within the meaning of the action, but could hardly be called the institution of criminal proceedings. So a charge made to the Judge of a civil Court, or to put it officers of other kinds, in order to obtain sanction to prosecute, may well be a charge, but is not the institution of criminal proceedings.

The latter half of this passage is relied on by the Government Pleader. It was also pointed out in this case that there is no mode by which a private accuser can institute criminal proceedings except by making a charge; and reference was made to two modes of patting the criminal law in Motion--giving information of a cognizable offence to the proper officer pf police and making a complaint to a (competent) Magistrate.

The reference was not altogether exhaustive as the Code of 1882 then in force provided for complaints by Courts on lines more or less similar to those now found in Sections 195(1)(b) and (c) and 476, and private parties could move the Courts to make such complaints and thus bring about the institution of criminal proceedings. The proposition that a false charge must be made to an officer who has power to investigate and send it up for trial was accepted as perfectly sound in Amanat Ali Vs. Emperor, another ease relied on by Kumar Singh This was done on the authority in Empress v. Jamoona (1881) 6 Cal. 620 but the actual point decided merely was that the breach of trust alleged against the Sub-Deputy Collector not being so related to his official capacity as to attract the operation of Section 197, Criminal P.C. the contention could not be accepted that this section was a bar to the trying Magistrate taking cognizance.

Another case relied on for Kumar Singh is Sessions Judge of Tinnevelly v. Sivan Chetti (1909) 32 Mad. 258 in which the majority of jibe Full Bench held that a complaint of dacoit made to a village Magistrate (the village headman of Section 45, Criminal P.C.) amounts to a "charge" and is also an ''institution of criminal proceedings within Section 211, Penal Code. This case was cited in Banti Pande Vs. Emperor, and is the basis of the rule formulated in the latter case that a false charge within the meaning of Section 211, Penal Code, must be made to a competent Magistrate or other person with a statutory standing in the matter. But this was said in a case where a dying declaration, which did not amount to a plaint was recorded by a Second Class" Magistrate who had no power to take cognizance. No question arose in that case regarding the effect of allegations of an offence made to a public servant or a Court without whose complaint in writing cognizance cannot be taken by any Court of the offences specified in the three clauses of Section 195(1), Criminal P.C.

But it may be pointed out that the words ''Used "a competent Magistrate or other person with a statutory standing In the matter" are comprehensive enough to include the public servant or Court referred to in Section 195(1), Criminal P.C. vis-a-vis private persons or parties aggrieved. Before the amendments of this Code in 1923 it was open to Civil and Revenue as well as Criminal Courts, when the offences specified in Section 195(1)(b)--to take only one clause out of the three by way Of example--were committed in or in relation to any proceedings in such Courts or in some Subordinate Court, not only to set the criminal law in motion themselves by making a complaint, as they can do even now (by a written complaint), but also to grant sanction to prosecute and thus leave the institution of a criminal proceeding in the hands of an applicant. But the applicant would have to allege an offence before he could be given sanction to prosecute, and I cannot conceive how it could have been said in such a case that no Charge was made Within the meaning of Section 211 merely because the Court in giving sanction exercised neither magisterial nor police powers including the power to Send? for trial.

The authority to give such sanction is moved wit h the object of setting the criminal law in motion and acts in furtherance of that object when it sees fit to do so. Allegations of an offence made to such an authority for the purpose of Obtaining sanction to prosecute would not amount to the institution of criminal proceedings/but would certainly, as 1 regard the matter, amount to the making of a charge within the meaning of Section 211:

Under the present Code of Criminal Procedure, the Court of the District Judge could not be asked to sanction nor sanction the prosecution of the Subordinate Judge for the alleged offence u/s 196, I.P.C. It could only Kecked by way of complaint, but no Court could have taken cognizance of the offence'' on such a complaint except with the sanction of the Local Government. This however does not affect the question whether Kumar Singh''s allegations to the District Judge that Mr. Fath had committed an offence u/s 196, I.P.C. did or did not amount to the making of a charge within the meaning of Section 211, I.P.C. Kumar Singh''s object in making the allegations (if any) to the District Judge was to set the criminal law in motion, and the District Judge had statutory power to further that object, though the sanction of the Local Government was also necessary before any Criminal Court could take cognizance of the offence.

It has been contended that the allegations in Kumar Singh''s petition of 29th July 1935 were addressed to the Local Government and not to the District Judge and that therefore the charge on which he has been tried and which gives as the date of his offence, 1st August 1935, the day on which the petition was placed before the District Judge, is not made out, as no accusation against the Subordinate Judge was, so it is argued, made to the District Judge. This argument seems to have impressed the learned Sessions Judge, though he preferred to rest his decision on the ground that even if Kumar Singh made any allegations to the District Judge, they could not amount to charging the Subordinate Judge with an offence because the District Judge had no statutory standing in the matter. I have already indicated how the District Judge did have a statutory standing in the matter; he would plainly have been guilty of a grave dereliction of duty if he had not in due course inquired into those allegations and proceeded (if the facts warranted it) to make the complaint required u/s 195(1)(b) after obtaining the sanction of Government even if Kumar Singh had not asked for it. The petition to the Local Government was deliberately addressed "through the District and Sessions Judge", and Kumar Singh told Mr. Chaudhuri (as the latter noted in his order-sheet on the 5th August) that the petition was really meant for the Court of the District Judge. Para. 7 of the petition also read:

An inquiry into the truth of the allegations by the District Judge, Purnea, is prayed before sanction u/s 197...is given to the petitioner.

The learned Sessions Judge was apparently inclined to accept the contention that this only meant a prayer that the Governor in Council might, if he so pleased, order an inquiry by the District Judge; but this view would completely ignore Kumar Singh''s own statement that the petition was really meant for the Court of the District Judge. It is plain that he did not intend to ask the District Judge merely to forward the petition like a post office. The conclusion is therefore irresistible that the petition conveyed, and was intended to convey, allegations against Mr. Fath to the District Judge no less than to the Local Government. The District Judge was deliberately brought into the chain of correspondence in order that the Subordinate Judge might be prosecuted, and the ''intention and object'' of Kumar Singh in making those allegations was to set the criminal law in motion against Mr. Fath. It follows that Kumar Singh did charge Mr. Fath before the District Judge with an offence-under Section 196, I.P.C. within the meaning of Section 211, I.P.C.

In this view it is unnecessary to deal in detail with the question whether Kumar Singh''s allegations to the District Judge were rightly regarded by the learned Sessions Judge as affording to Mr. Mukharji himself as District Judge no ground for proceeding u/s 182, I.P.C. Belying on Kantir Missir Vs. Emperor, the learned Sessions Judge holds, in the first place, that a District Judge cannot proceed u/s 195(1)(a) Criminal P.C. in respect of information given to his predecessor in office. But what was ruled in that case was that as information had been given to Sub-Inspector D. Mukharji, the officer in charge of the police station, junior Sub-Inspector Barn Singh who had investigated the case had no power to make a complaint u/s 182, I.P.C. as he was not a public servant to whom the information had been given.

The complaint prescribed in Section 195(1)(a) is a public duty and responsibility, and must not be mistaken for a personal privilege; and there is nothing in the ruling Kantir Missir Vs. Emperor, against a successor in office of the public servant to whom information was given making the complaint u/s 182, I.P.C.: see also Section 18, General Clauses Act (10 of 1897), and Section 559(1), Criminal P.C. The only; other reason given by the learned Sessions Judge for his view was that it cannot be said that the District Judge has lawful power which he can use to the injury or annoyance of a Subordinate Judge under him. As an example of the power he meant, the learned Sessions Judge referred to the power of a police officer to arrest, make a house search and send up a person for trial. But he overlooked the fact that u/s 24, Civil P.C. and Section 22(2) of the Bengal, Assam, etc. Civil Courts Act (12 of 1887), the District Judge has, power of his own motion to transfer suits and appeals pending in the file of a Subordinate Judge to some other competent Court, and the exercise of such a power by the District Judge on receiving information about corruption on the part of a Subordinate Judge would manifestly be to the annoyance, if not also to the injury, of the Subordinate Judge. I do not propose to take notice of other contentions raised before us regarding the applicability of Section 182, I.P.C. in the circumstances of this case for after all Kumar Singh was charged with and convicted of an offence u/s 211, I.P.C. and this is the conviction which has been set aside by the lower Appellate Court.

The next question is whether the District Judge was competent to complain of an offence u/s 211. It will be noticed that this section is also mentioned (like Section 196, I.P.C.) in Section 195 (1)(b) Criminal P.C. No Court could therefore have taken cognizance of the offence without the complaint of the District Judge, if the offence had been committed in or in relation to a proceeding in his Court; and the complaint would in that case have had to be made in accordance with Section 476, Criminal P.C. The District Judge could also have complained u/s 476-A, Criminal P.C., if the offence u/s 211, I.P.C. had been committed in or in relation to a proceeding in the Court of the Subordinate Judge. Now it would appear that no offence u/s 211 could be said to have been committed in or in relation to the only proceeding before the Subordinate Judge, namely the proceeding on Kumar Singh''s pauper application, for otherwise a prosecution would have been possible on a complaint by the Subordinate Judge, even though the offence u/s 211 arose out of the petition to the Local Government through the District Judge which, though it related to the pauper proceeding, never came before the Subordinate Judge at all. As to the District Judge, the offence u/s 211 was constituted by the allegations in the petition of 29th July 1935, and was repeated in Kumar Singh''s voluntary statements to the District Judge on 5th August 1935. The, charge as framed sets out the former. Mr. Chaudhuri, though informed by Kumar Singh that a petition was "really meant" for the Court of a District Judge does note seem to have started a judicial proceeding on it but dealt with it as an administrative matter, the reason apparently being that Kumar Singh had only applied for the sanction of the Local Government and had not asked the Court of the District Judge to make a complaint of the offence u/s 196 with which he bad charged Mr. Fath.

The proceeding contemplated in Section 195)(1)(b), Criminal P.C. seems to be a judicial proceeding, see Daroga Gope v. Emperor A.I.R.1925. Pat. 717 and the refusal of the Local Government to sanction the prosecution of Mr. Fath for an offence u/s 196 or under any other section of the Indian Penal Code put it out of the question for any District Judge of Purnea in future to start a judicial pro. ceding on Kumar Singh''s allegations against Mr. Fath and make a complaint u/s 476, Criminal P.C. when no Criminal Court could even take "cognizance of the offence. The learned Sessions Judge has shown how when he himself was asked to complain and did complain, the matter was dealt with as if Section 476, Criminal P.C. was applicable; and he holds that

as a matter of fact the section was not applicable because the offence (under Section 196, I.P.C.), was not committed in an; proceeding or in relation to any proceeding in Court.

In this he was dearly right. But it is difficult to say what exactly he took to be the effect of this finding. If the offence was not committed in or in relation to any proceeding in Court, the bar of Section 195(1)(b) did not apply, and Kumar Singh could be prosecuted u/s 211 in any of the ordinary modes of prosecution. The complaint forwarded by Mr. Mukharji as District Judge to the District Magistrate u/s 476, Criminal P.C. of course ceased to be a valid complaint under the special procedure applicable to such an offence when committed in or in relation to a proceeding in Court. But there was nothing to prevent the District Magistrate from proceeding under Clause (C) of Sub-section (1) of Section 190, Criminal P.C. as on "information; received from any person other than a police officer or of his own knowledge or suspicion" that an offence u/s 211 had been committed. The point of the decision in Cheta Mahto v. Emperor A.I.R.1924. Pat. 128 to which the learned Sessions Judge has referred, was that a District Magistrate who had received a complaint u/s 476, Criminal P.C. in circumstances where, Section 476 was not available was not incompetent to take cognizance u/s 190(1)(c) and transfer the case to a Subordinate Magistrate. The learned Sessions Judge says that "as Section 476, Criminal P.C., was inapplicable, the complaint was not a legal one. But he does not say: that the trying Magistrate; had no jurisdiction to try the case, and I hate no doubt that the trial of Kumar Singh was not without jurisdiction.

Having disposed of the law points on which the lower Appellate Court set aside the conviction of Kumar Singh, I now turn to the facts. Kumar Singh''s complaint (if I may use the word in a non-technical sense) in his petition of 29th July 1935 was that in the pauper proceeding Mr. Fsrth had corruptly used the evidence of Bam Khelawan Mistri as true knowing it to be false. (After discussing evidence the judgment proceeded further.) But it is certain that on the materials before him and even on the further matedais since produced by Kumar Singh, Ram Khelawan''s evidence was not substantially false. Had Mr. Path been put on his trial, he would clearly have been entitled on the merits to an Hon curable acquittal.

It was apparently not realized in the lower Courts that the use of evidence contemplated in Section 196 I.P.C., is use by a party or with ness and not use by the Court. When we referred to this during the arguments, it was urged on behalf by Kumar Singh that there could be no conviction u/s 211, I.P.C. in respect of an impossible offence with which Kumar Singh had charged Mr. Path. That the offence was impossible does not however do away with the fact that Kumar Singh with his practice as "Mukhtear in Chamber" chose to charge Mr. Fath with it Section 196 may have beep inapplicable, but corrupt orders by judicial officers are not outside the Penal Code (see Section 219 for instance), which no doubt was the reason why the Local Government refused to sanction Mr. Fath''s prosecution not only u/s 196 but also under any other section of the penal Code.

It was also urged on behalf of Kumar Singh that even if Mr. Fath did not corruptly use Ram Khelawan''s .evidence to be true knowing it to be false, Kumar Singh had, in the facts and circumstance of the pauper proceeding, good reason honestly'' to foliate that Mr. Fath had done so. (After discussing evidence the judgment proceeded further.) Taking all the; circumstances relied on by Kumar Singh together, it is impossible to hold that he had any just or lawful ground for the charge he made against Mr. Fath u/s 196. It was of obese for the prosecution to show that he had no such ground, and the onus was discharged by placing before the Court what Mr. Fath had done in the pauper proceedings and; why. What I am now dueling with is Kumar Singh''s contention in apple this appeal that be had reason to believe that Mr. Fath had acted corruptly, and I consider that the contention must be overruled; The intent to cause injury to Mr. Fath is also clearly made out.

I would accordingly allow this appeal, set aside the appellate order of acquittal and restore the conviction and sentence passed by the trying Magistrate.

James, J.

I agree.