In Re: Vishwanath M. Hegde

Rajadhyaksha, J.—This is an appln. in revision against an order passed by the Presidency Mag., 5th Ct. Dadar, Bombay, discharging a notice in respect of a complaint made to him by the present appct. on a charge u/s 500, I. P. C. The appct. in this case was a servant of the opponent one Vasu Shetty. The appct. intended to quit the service of the opponent on Dec. 18, & on 17th went to him to ask for his wages. He was told to come on the following day. But, on the following day, the opponent Shetty filed a complaint against the appot. to the effect that the appct. bad committed a theft of Rs. 1,926 on the previous night. The police of the Dadar Police Station investigated into the case, but eventually discharged the present appct. as there was no evidence that he had committed any such theft. Thereafter the appct. filed a complaint against the opponent Shetty on a charge u/s 500, I. P. C. The learned Mag. took the view that as the facts alleged also constituted an offence u/s 211 & as the appct. had not asked for sanction to prosecute the opponent u/s 195, Cr. P. C., he would not be justified in divorcing the offence u/s 211 from an offence u/s 500 & grant a process under the latter section alone. He accordingly discharged the notice. Against that order the appct. has come in revision.

The only point that we need consider in this appln. is when" a particular set of facts constitutes an offence u/s 211 & also u/s 500, I. P. C., whether it is open to the complainant to prosecute for an offence u/s 500, I. P. C., without at the same time asking for sanction u/s 195. Or. P. C., to prosecute for an offence u/s 211, I. P. C. On that point we have two decisions of the Full Benches of two H. Cs. which are clear on the point that it is not necessary to ask for sanction u/s 195, Cr. P. C., for an offence u/s 211, I. P. C., & that it is open to the complainant to proceed against the accused for an offence u/s 500, I. P. C. The first decision is that of the Calcutta H. C. in Satish Chandra v. Ram Dayal De 48 Cal. 388 : A. I. R. 1921 Cal. 1 : 22 CrI. L. J. 31 In that case an appln. for sanction u/s 195, Cr. P. C., to prosecute for an offence u/s 211, I. P. C., was rejected. Even so, it was held that the refusal of an appln. for sanction to prosecute a party to a judicial proceeding, u/s 182 & 193, I. P. C., was not a bar to his prosecution for defamation. At pp. 423 & 434 the point before us has been specifically considered, & the learned C. J. observes as follows :

"... the maker of a single statement may be guilty of two distinct offences, one u/s 211 (which is an offence against public justice) & the other an offence u/s 499, wherein the personal element largely predominates. The Legislature has provided, in the Cr. P. C., that the sanction of the Ct. where the offence is committed, is essential in the former case for the institution of Cr. Proceedings. In the latter case the Legislature has omitted to make a similar provision. This diversity, for aught we know, may have been deliberate, & plainly affords no reason why the Ct. should struggle to hold that the statement does not fall within the mischief of the rule embodied in Section 499. The two offences are fundamentally distinct in nature, as is patent from the fact that the former is made non-compoundable while the latter remains compoundable; in the former case, for the initiation of the proceedings, the Legislature requires the sanction of the Ct. u/s 195, Cr. P. C.; in the latter case, cognisance can be taken of the offence only upon a complaint made by the person aggrieved u/s 198, Cr. P. C. Whether every statement made by an advocate, by a party to a judicial proceeding, or by a witness therein should be excluded from the category of defamation, or, if included therein, should be made punishable in a proceeding instituted only with the sanction of the Ct. where the statement was made, are manifestly questions of policy which can be settled appropriately only by the Legislature."

A similar view was taken by the F. B. of the Rangoon H. C. in U Aung Pe v. The King A. I. R. 1938 Ran. 232 : 39 CrI. L. J. 663 . It was held in that case that

"There is no exception to Section 409 saying that when the defamation is made in a statement to a public servant or in a Ct. proceedings, by virtue of which the offence was punishable u/s 182 or Section 211, Penal Code, or some other section, then no prosecution u/s 500 would lie. Hence a complaint u/s 500 cannot be dismissed even if the same facts constitute also an offence u/s 182 & sanction required by Section 195, Cr. P. C., is not obtained."

With respect we are in agreement with the view taken in these two decisions of the Calcutta & the Rangoon H. Cs. It is, therefore, clear that the view of the learned Mag. That he could not proceed with the complaint u/s 500 because no sanction had been asked for for prosecution u/s 182, I. P. C. is not correct.

It was also argued by Mr. Patwardhan for the opponent that although the decided cases were against him, this was a trifling matter in which the Ct. should not interfere, particularly for the reason that the complaint did not disclose an offence u/s 500, I. P. C. We do no wish to express any opinion as to the merits of the complaint, because, having set aside the order of the learned Mag. the proceedings must go back to the learned Mag. for being proceeded with in accordance with law. In that view, it is not necessary for us to consider whether the allegations made constitute an offence u/s 500, I. P. C., and if they do, whether the act of the opponent is covered by any of the exceptions.

We therefore set aside the order of the learned Mag. & direct him to take the case back on his file & to dispose of it in accordance with law.