In Re: Pampappa Ballalrao Desai

Amberson Marten, J.—On or about December 9, 1925, Mr. Monteath, the District Magistrate of Dharwar, filed a complaint before Mr. Acott, the Sub-divisional Magistrate of Dharwar, against the present applicant, Pampappa Ballalrao Desai, requesting that Pampappa be tried for an offence u/s 211 or 182 of the Indian Penal Code or such other offence as the inquiry may disclose during the trial. Pampappa presented an appeal to Mr. Ferrers, the Sessions Judge, praying that this complaint might be directed to be withdrawn. On January 11, 1926, the Sessions Judge . dismissed that appeal. Pampappa has now presented two applications to this Court, viz., No. 9 of 1926, for a transfer of the proceedings, and No. 16 of 1926, praying that the complaint may be directed to be withdrawn. I will deal with the latter application first, as it is the only one which has so far been argued before us.

The facts leading up to the above complaint are shortly as follows:-Pampappa, the applicant, appears to be the Chairman of the Taluka Development Association, and a share-holder in the Mango Joint Cultivation Society of Aminbhav, Taluka Dharwar. He is also a Rao Saheb. On May 9, 19i''5, a large number of mango grafts on the lands of the Society were destroyed. The next day, viz., Sunday, May 10, action was takeil by the Secretary of the Society, and also by the Rao Saheb. The Secretary lodged a formal complaint before the Patil which was sent the same day to the Subordinate Magistrate, and was subsequently transferred to the file of the District Magistrate. The applicant himself interviewed the District Magistrate the same day at the latter''s bungalow accompanied by his Pleader. It is stated that the Rao Saheb only knows Kanarese, and that he did not Know exactly what his Pleader stated to the Magistrate. Admittedly, however, the Magistrate''s intervention was requested in respect of the destruction of these mango grafts.

The applicant states that he never intended that this should constitute a "charge" by him, or amount to the institution of any criminal proceedings within the meaning of Section 211 of the Indian Penal Code. The District Magistrate on the other hand took the view, as appears from the above complaint, that the applicant was making a formal charge of destruction, and that the person accused of that destruction was the Sub Inspector of Police, Mr. Sumant. It is, however, clear, that the District Magistrat did not examine the applicant on oath, nor did he take down the applicant''s statement in writing as he should have done u/s 200 of the Cr. P.C What the District Magistrate did do was to cause an enquiry" to be made into the matter by the District Superintendent of Police. But there again, the learned Migistrate does not appear to have recorded his reasons for postponing the issue of process and making that enquiry a3 he should have done u/s 202 if the case was treated as being a formal complaint under the Code.

What happened next was that the formal complaint filed by the Secretary of that Association was proceeded with, and eventually it was dismissed on or about August 20. Then next, on October 19, the applicant was called on by the District Magistrate to show cause why he should-not be proceeded with u/s 211 or 182 of the Indian Penal Code. He made his answer, but after that he had been heard the District Magistrate sent in the above complaint on December 9.

The papers before us introduce many matters which, to my mind, are irrelevant or inadmissible, and I think it is essential for the Court to confine its attention to the precise points before it, and not to wander oil into the allegations and counter-allegations which have been made by the applicant against the Sub-Inspector of Police and vice versa as to matters prior to the date of the destruction of the mango grafts. The argument of the applicant amounts in effect to this-On the Magistrate''s own showing the applicant was making a "charge" within the meaning of Section 211. That being so, the complaint could only be laid u/s 211 and not u/s 182 [see Apaya Tatoba, Munde v. Emperor 20 Ind. Cas. 747 : 15 Bom. L. R. 574 : 14 Cr. L.J. 491 But it was not legitimate for the prosecution to institute proceedings u/s 211 for making a false charge before the proceedings in which that charge was actually made had been finally and properly determined according to law. Accordingly, it was not open to the District Magistrate to direct an enquiry in the way which he did, and to disregard the provisions of the Cr. P. C., namely, not to examine the applicant on Coath, nor to take down his statement in writing, nor to give the Magistrate''s reasons for the enquiry by the District Superintendent of Police. It was further argued that Section 211 is the main charge laid in the Magistrate''s complaint, and that though Section L8J is mentioned it has really no more weight than the other sections referred to in general words by the Magistrate. In substance the charge was one u/s 211.

As regards the decisions of this Court it has been held in Apiya Tatoba Munde v. Emperor 20 Ind. Cas. 747 : 15 Bom. L. R. 574 : 14 Cr. L.J. 491 that if a case comes clearly u/s 211, the procedure to be followed should be under that section and not u/s 182. Thus, as regards the lodging of a complaint for making a false charge before the original proceedings have been properly determined there is a recent decision of the Chief Justice and Mr. Justice Shah reported as In re Ningappa Rayappa Ghotadlei 81 Ind. Cas. 608 : 26 Bom. L.R. 183 : 48 B. 360 : AIR 1924 Bom. 321 : 25 Cr. L.J. 960. There, a Magistrate without examining a complainant as he was bound to do, u/s 200 of the Cr. P.C., dismissed a complaint, and then called upon, the complainant to show cause why he should not be prosecuted u/s 211 or. 182. The Court held that this could not be, done as the original complaint had never been properly dismissed according to law.

And if one considers the underlying principles, then surelyss. 200 and 203 of the Cr. P. C. are perfectly intelligible. They merely lay down the elementary principle that before you decide against a litigant you shall first hear him. If, on the other hand, the Magistrate merely reads a complaint, and then proceeds to dismiss it without hearing what the complainant may have to say, then that may be said to be in general a denial of elementary justice.

We recognise that in In re Ningappa Rayappa Ghotadki 81 Ind. Cas. 608 : 26 Bom. L.R. 183 : 48 B. 360 : AIR 1924 Bom. 321 : 25 Cr. L.J. 960 another authority in Imperatrix v. Jijibhai Govind 22 B. 596 : 11 Ind. Dec 979 does not appear to have been cited to the Court. But there, as pointed out by Sir Thomas Strangman, the case had been finally decided, and the accused heard and convicted. Consequently, different considerations would then arise, and mere irregularities in the earlier procedure would not necessarily result in the conviction being set aside, unless the Court came to the conclusion u/s 537 of the Cr. P. C., that they had occasioned a failure of justice.

The Advocate-General was really unable to dispute the argument that if the Magistrate was correct in thinking that a "charge" had been laid before him, then the procedure actually adopted by the Magistrate for dealing with that complaint was irregular. Accordingly, in our judgment, the contention of the applicant, so far as it refers to Section 211, is correct, and consequently it was not open to the District Magistrate to lodge a complaint for making a false charge until he had first investigated according to law the original complaint, which the applicant had made. I should here mention that, as a preliminary point, the Advocate-General argued that no appeal would lie to us from Mr. Ferrer''s order as regards either Section 211 or 182. It was pointed out that the old Section 125 (6) of the Cr. P. C. has been omitted in the amended Code, and that there is now anew Section 476B which gives a direct right to appeal to a superior Court from either admission or the rejection of a complaint in an inferior Court. It is further, pointed out that in the sections giving this High Court certain powers in revision-I refer to Section 439(1)--the old Section 195 has been omitted. It is further argued that although this Court is by Section 439 given all the powers conferred on a''Court of Appeal by Section 423 (amongst other sections) yet Section 423 would not enable this Court to alter or vary Mr. Ferrer''s order. But, after listening to an interesting argument we think that there is jurisdiction u/s 423 (c) to treat the present application as an appeal from Mr. Ferrer''s order, and in the words of that section "to '' alter or reverse such order," and further that we have power under Sub-section (d) to make "any incidental order that may be just and proper." As we read the decision of the Chief Justice and Mr. Justice Shah as Somabhai Vallav-bkai v. Aditbhai Parshottam 81 Ind. Cas. 947 : 26 Bom. L.R. 289 : 48 B. 401 : AIR 1924 Bom. 347 : 25 Cr. L.J. 1123 they agree that the jurisdiction exists although it has to be sparingly exercised.

Further, there is a news. 561A which provides that nothing in the Code is "to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It may, therefore, be argued that if the original complaint by the accused was dealt with in a wholly irregular way by the judicial officer before whom it was laid, then we ought to have power to prevent any further proceedings being taken until that complaint has been regularly disposed of. But, speaking from myself, I am always rather chary of invoking the inherent powers of the Court, and nonetheless so when we have had no opportunity of reconsidering the Supreme Court Charter of 1823, which may have some bearing on the powers we possess as successors of the Supreme Court. But, as regard the form of the order asked for, viz., to direct the withdrawal of the complaint, Sir Thomas Strangman has pointed out that these very words are to be found in Section 476B as seing one of the powers conferred on an Appellate Court.

Turning next from Section 211 to Section 182, the real crux of the argument before us has been, whether the prosecution are entitled to rely in the alternative on. Section 182, Now, I can quite see that on a certain view of this case the facts might, fall within 8. 182 and not within Section 211, viz, if the applicant only gave certain information to a public servant within the meaning of Section 182 but did not in any way institute a charge u/s 211. If that were so, then it would be necessary for the prosecution to show that the information �0 given was false, and further that it was given with the intention of causing such public servant to do or omit certain matters mentioned in Sub-section (a) of Section 182, or alternatively to use his lawful powers to the injury or annoyance of some person under Sub-Section 1(6). Further, the Magistrate has referred in his complaint to Section 182 specifically and it-may be that it would be possible to confine the complaint by amendment or otherwise to Section 182. But here we have a different question of jurisdiction, because we have not on that hypothesis a complaint similar to that for which a direct appeal is given by Section 476B to the Appellate Court. Section 476(1) only applies to offences referred to in Section 195(1)(b) or (c), and though an office u/s 211, Indian Penal Code, is within sub Section (6), an offence u/s 182, Indian Penal Code, is referred to in Sub-section (a).

Apart from that we feel the force of the argument for the applicant that in substance this-complaint by the District Magistrate is founded on the view that there was a definite ''''charge" made by the applicant, and that the Magistrate has proceeded on that basis On the whole, then we think it bettter to treat the complaint on the lines which the Magistrate himself has stated, viz., that in his view there was a charge. Consequently, under the decision in Apaya Patoba Munde v. Emperor 20 Ind. Cas. 747 : 15 Bom. L. R. 574 : 14 Cr. L.J. 491, the proper course to take would be to treat the case as one u/s 211 and not u/s 182. That being so, we think the better course is to direct the whole of this complaint to be withdrawn. Then, if the Magistrate so thinks fit, he will be at liberty by soma, separate document to institute, a fresh complaint u/s 182, and to found it, on such. facts as in his view, if at all, support a charge u/s .182 At present the Magistrate has really not applied his mind to the ex-ict facts of the case so as to bring it precisely within Section 182. In this particular case then and more especially as it is a criminal one, we think it safer on the whole to order that the present complaint be withdrawn in preference to it being amended, s. that when any complaint comes eventually to be heard it will be directed specifically to the particular section under which the applicant can (if at all) be legitimately charged.

I wish to add this. In my opinion the District Magistrate would be well advised if, when he is making applications or complaints to judicial officers, he confines his statements strictly to matters which are relevant and which are admissible in evidence. There is a great distinction between, for instance what one Police Officer may say to another about a case and what a judicial officer may say. Necessarily much information that pisses between Police Officers is of a character that is inadmissible in Courts of law and similar observations my apply to Executive Officers. But when we come to the Courts of law, then it 13 essential that the accused should not be prejudiced by matters being introduced which it would be wholly inadmissible to tender in evidence, and in our judgment this applies no lass to statements furnished to Subordinate Magistrate than to statements furnished to the High Court. Speaking for myself, I hive left a strong objection to the way in which the two applications to thi3 High Court for withdrawal and for transfer have been overburdened with a large amount of heterogeneous material which has little or no bearing on the dispute which we actually have to decide, viz., whether we should allow this present complaint to go forward, and if so whether we should direct a transfer. Counsel, however, in their excellent arguments have confined their attention to the relevant points at issue.

In the result we order that the complaint in question which has been made by the District Magistrate be directed to be withdrawn, aid that the order of the Sessions Judge be discharged.

Coyajee, J.

I am of the same opinion. The reasons for the order which we are now making have been so fully ex pi lined in the judgment now delivered by my learned brother that I Kiva nothing to add. But I desire to associate myself in the observations made by my learned brother regarding the advisability of confiding the statements, in applications and complaints made to judicial officers and in petitions made to this Court, strictly to matters which are relevant and which are admissible in evidence.