In Re: Eswardoss Kalidoss

Happell, J.—The petitioner presented a complaint to the Assistant Commissioner of Police, Crime, Madras, against a certain R.V. Bhat

alleging that he had committed an offence u/s 406 of the Penal Code in respect of a number of diamonds, valued at Rs. 20,000 entrusted to him by

the petitioner. The police filed a charge sheet on the basis of this complaint in the Court of the Chief Presidency Magistrate and the case resulted in

the discharge of the accused. In the course of the enquiry the petitioner gave evidence which, in the opinion of the prosecution, was irreconcilable

with certain of the statements made in the complaint; and the Assistant Commissioner thereupon filed a complaint against him for an offence u/s

211 of the Penal Code. This complaint was transferred to the file of the Third Presidency Magistrate and the preliminary objection was raked that

the Third Presidency Magistrate had no jurisdiction to try the case without a complaint from the Chief Presidency Magistrate in accordance with

the provisions of Section 195(1)(b) read with Section 476 of the Criminal Procedure Code. This objection was overruled by the Third Presidency

Magistrate, and the petition now under consideration is against his order.

2.Section 195(1)(b) of the Criminal Procedure Code enacts that:

No Court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections (here a

number of sections are enumerated of which Section 211 is one) when such offence is alleged to have been committed in, or in relation to any

proceeding in any Court except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.

The offence alleged in the present case was not of course committed in the proceeding in the Chief Presidency Magistrate''s Court which resulted

in the discharge of R.V. Bhat. The question for determination is whether the offence constituted by the alleged false complaint should be regarded

as an offence committed in relation to the proceedings in the Chief Presidency Magistrate''s Court.

Neither the learned Crown Prosecutor nor the learned Counsel for the petitioner has been able to refer me to any decision of this Court which is

directly in point. Earned Counsel for the petitioner relies on a decision of the Calcutta High Court in Nazir Ahmed Vs. Emperor, . In that case a

complaint of theft to the police was prosecuted by them and resulted in a trial in a Sessions Court. The accused was acquitted and the Sessions

Judge, holding that the charge was false, made a complaint u/s 476 of the Criminal Procedure Code of an offence u/s 211 of the Penal Code. The

learned Judges of the Calcutta High Court held that the false charge to the police, even though the offence was committed before the proceedings

began in the Sessions Court, must be regarded as a matter relating to the proceedings in the Sessions Court since it was the basis of those

proceedings. Nazir Ahmed Vs. Emperor, is not distinguishable from the present case. My attention, however, has been drawn to the case of

Emperor v. Prag Datt I.L.R.(1928)All 382 decided by Dalai, J, in which it is said a different view is taken. This is not quite correct. In Emperor v.

Prag Datt I.L.R.(1928)All 382, there had been a complaint to the police which resulted in no further proceedings, and then a complaint by the

same person on the same facts to a Magistrate. Dalai, J., held that a Magistrate could take cognizance of a complaint by the police in respect of

the complaint to them. It may be doubted whether this view could be taken in Madras; but it is unnecessary to decide the question as the fact that

there were two complaints and that the complaint to the police did not directly result in proceedings in any Court clearly distinguishes Emperor v.

Prag Datt I.L.R.(1928) All 382 from the present case.

As already stated there seems to be no decision of this Court which is directly in point; but the view expressed by the learned Judges of the

Calcutta High Court in Nazir Ahmed Vs. Emperor, is, in my opinion, in, accordance with the judgment of a Full Bench of this Court in Registrar,

High Court, Madras v. Kodangi (1930) 62 M.L.J. 425 : ILR 55 Mad. 611 . The question referred to the Full Bench in that case was:

When a charge is made by a complainant to the police against more than one individual and the police while charging before the Court one or more

of such individuals of the offence complained of, do not charge them all, is a complaint of the Court u/s 476 of the Code of Criminal Procedure

necessary to prosecute the complainant u/s 211, Indian Penal Code, in respect of the person or persons whom the police have not charged before

the Court?

The answer given by the Full Bench was that the Court had no jurisdiction to take action u/s 476 against the complainant in respect of the

individuals not charged. The question referred does not of course cover the present case; but it seems to me clear that the underlying assumption in

the order of reference and in the judgment of the Full Bench is that there would have been no difficulty if the question had been of the prosecution

of the complainant in respect of the person charged. In that case the answer would have been that a complaint by the Court was necessary.

Wallace, J., indeed observed in delivering the judgment of the Full Bench that:

In a case u/s 211, I.P.C., when the police or the complainant or any one else brings the charge, which is the subject-matter of the offence, to trial

in a Court, then it may be fairly contended that the offence has been committed in relation to a proceeding in the Court.

I have, therefore, no hesitation in following the decision in Nazir Ahmed Vs. Emperor, . In my opinion, the offence alleged to have been committed

by virtue of the complaint to the Assistant Commissioner of Police--Crime--was committed in relation to the proceedings in C.C. No. 2382 of

1944 in the Court of the Chief Presidency Magistrate; and, that being so, the Third Presidency Magistrate had no jurisdiction to take cognizance of

the case against the complainant without a complaint from the Chief Presidency Magistrate. The petition is accordingly allowed, and the

proceedings in C.C. No. 2945 of 1944 on the file of the Third Presidency Magistrate are quashed.