Jadu Dhanuk vs Emperor

Bucknill, J.—This was an application in criminal revisional jurisdiction, made by one Jadu Dhanuk. The circumstances are somewhat peculiar. The applicant on the 29th June last lodged a first information at the Police Station of Barbigha which related to the disappearance of his step-sister. The gist of the story which he stated to the Police was that about 13 days before the date upon which he had appeared at the thana, his step-sister Sonitra Rajputin, who is the daughter of his father, Kali Singh, was missing from their house. The applicant searched for the girl with his father and eventually some suspicion was cast upon Loknath Singh who was then resident of a place called Nanhausi. The applicant says that he and his father went in search of Loknath and found him at his maternal uncle''s house. The applicant was making enquiries from this uncle of Loknath, whose name was Meghan Singh when suddenly his step-sister came out from Meghan''s house and clung to the applicant with affection. A woman from inside the house then shouted out to Loknath and Meghan not to let the girl go. The applicant then states as follows: "Then Meghan Singh, Bhaglu Singh and Loknath Singh beat me with slaps and fists and forcibly took away the girl.... My claim is on Meghan Singh, Bhaglu Singh and Loknath Singh for having stolen my sister. I cannot say why they have done so. From the house of Meghan a woman, whose address and name I do not know, told in a loud voice. Do not let the girl go. ''Whatever money will be spent I shall bear.'' At this being encouraged Meghan, Loknath and Bhaglu who were there beat me with fists and slaps and took away the girl". Now, on this First Information the Police apparently investigated the story. It would certainly appear that they directed their enquiries to the taking away of the girl from the house in which the applicant resided on the night when it was alleged she was missing. The final report which was submitted by the Police disclosed a somewhat curious state of affairs, namely, that it would seem that the father of the applicant went with his daughter and deliberately married her to the son of Meghan Singh. There seems no doubt that this was so. Loknath and. Meghan, therefore, would appear to have had a right to receive and keep this girl. It is not indicated whether the applicant was present at the wedding but it would seem that a price of Rs. 400 was claimed by the father for giving his daughter to Loknath. Only Rs. 200, however, seem to have been handed over by Meghan Singh to Kali Singh the former setting off the remaining Rs. 200 against some old debts which he (Meghan) claimed that Kali owed to him. The result of the Police investigation seems to have been that they thought that the story told by Jadu that the girl had been taken away wrongfully from their house on the night when he said that the occurrence had taken place was unjustifiably false. But the Police do not say anything at all as to the truth or falsity of the occurrence which is said to have taken place between the applicant and the three other persons whom he charged with beating him and with having taken away his step-sister from his protection at the village where Loknath and Meghan resided. So far as I can understand the First Information, although the applicant may have been complaining that some one, (whom he did not know), had taken away his step-sister from their residence, what he appeared to have charged the three accused with was with having beaten him and having taken his step-sister away forcibly from him when he had recovered her; whereas the Police, so far as I. can understand their report, appear to have come to the conclusion that the girl had never been abducted wrongfully from the house where the applicant lived at all. They, however, did not direct their attention to the occurrence which is said to have taken place when the applicant found his step-sister. I think that the First Information report and the final report of the Police do not really strictly deal with the same matter. It may well be that for some reason or other some such occurrence, as is alleged to have taken place by the applicant, did actually take place where Meghan and Loknath resided. There is no investigation as to this and no report by the Police as to this. It also may well be that the girl was in fact given or sold by her father to the persons whom the applicant charged with having assaulted him and in consequence it may be that the applicant''s allegation that the girl had been actually abducted or kidnapped was in fact incorrect. It also may be that he was aware of this and that whatever, if anything, took place on the date of the occurrence as alleged by him, was due to the dispute about the nonpayment of a portion of the bridal price. I think that in these circumstances it is rather difficult to see how a prosecution could, as matters stood, properly have been ordered, and I think that on that ground alone it is sufficient to justify this Court in coming to the conclusion that this was not a matter which, as the record stood, could have been followed well by a prosecution.

There is, however, one other point which has been put forward by the learned Counsel who has appeared for the applicant which is no doubt of some slight importance. When the report had been brought to the notice of the Sub-Divisional Officer the Sub-Inspector of Police at the same time filed a petition of complaint in the Sub-Divisional Officer''s Court asking that the Sub-Divisional Officer should take cognizance of the offence under the provisions of Section 190(6) of the Cr. P.C. As the Sub-Inspector had filed a petition of complaint as well as a report in writing, it would seem that he might more properly have asked, that cognizance should be taken by the Sub-Divisional Officer under the provisions of Section 190(a) of the Cr. P.C. However, that question is not very material. What has been argued is that when this had been done the Sub-Divisional Officer should not have ordered, as he did, the applicant then and there to be prosecuted u/s 211, Indian Penal Code. It is suggested that there is authority to the effect that where a Magistrate purports to act u/s 190 of the Cr. P.C. he should not, where the question is as to whether a false case has been brought by the person complained or reported against, prosecute him without offering him an opportunity to state clearly whether he no longer supports his charge or whether he wishes to have an opportunity of supporting it definitely. This argument is based upon a Full Bench case in the Calcutta High Court Queen Empress v. Sham Lal 14 C. 707 : 12 Ind. Jur. 56 : 7 Ind. Dec. (N.S.) 469. In that case, which was decided in 1887, it appears to have been laid down that a Magistrate may take cognizance, under what corresponded then to Section 190 of the Cr. P.C. of an offence brought to his notice by a Police report which affords ground for suspicion that an offence has been committed. But that, as a matter of sound judicial discretion, a Magistrate should not so proceed and direct that the person suspected should be tried until some person aggrieved has complained or until he has ''before him a Police report on the subject based on an investigation directed to the offence to be tried, (and this is, the more important part so far as is here material) in cases of an alleged false charge until it is clear that the original charge has been either heard and dismissed or abandoned; and it was further laid down that before an order to prosecute for the false charge is made, the person who is alleged to have made the false charge, should be offered by the Magistrate an opportunity of supporting it or abandoning it. The learned Assistant Government Advocate has pointed out that if this means that in every case under the provisions of Section 190, in which a false charge is the matter of complaint, an opportunity is to be offered by the Magistrate to the person against whom the charge is brought, of stating whether he abandons or substantiates his original charge, such decision would certainly appear to place some duty upon the Magistrate by way of exercise of judicial discretion which does not appear in the language of the section itself. I think that this is true. The learned Assistant Government-Advocate has endeavoured to argue that this decision only was intended to apply in cases in which the person, who was supposed to have made a false charge but after the Police had reported it to be false, appeared before a Magistrate and asked that his case might be investigated and his witnesses summoned, and that the decision was not intended to apply in cases in which the person who was suspected of making a false charge did not apply to the Magistrate that his statement should be taken and witnesses summoned, or to cases in which he only made such an application after the investigating Magistrate had ordered that he should be prosecuted for making a false charge. In the present case it was not until after the applicant had been ordered to be prosecuted and had actually gone before the Trying Magistrate for trial that he then requested that his story should be substantiated. Although it is true that in the case, which I have quoted, the person suspected of making a false charge did apply to the investigating Magistrate that his statement should be taken and his witnesses summoned (his application being refused) yet the decision in the case does not appear as I read it to place any such limitation as is suggested by the Assistant Government Advocate. On the contrary it seems to me to be wider and if the decision of the Calcutta High Court Full Bench is correct it certainly does appear to me to contemplate that in any case a Magistrate who is considering whether he, shall order an individual to be prosecuted upon a charge of bringing a false charge should definitely offer to the accused person an opportunity of saying whether he abandons his charge or whether he wishes to support it, and if he says the latter, shall give him an opportunity of putting forward what he wishes to say in support of his charge prior to ordering him to be prosecuted for having brought a false charge.

I think, however, that on the facts of the case, as I have dealt with the first point, this matter can clearly be decided. The whole affair of course is one considerably to be deprecated, and to try and put the Police into motion on an absolutely incorrect and misleading statement is an affair which may not be altogether passed over. At the same time there seems to have been no cohesion between the complaint of the applicant Jadu and the application on report of the Police for prosecution of the applicant, and in these circumstances I do not think a prosecution should have been ordered. In these circumstances all I think that is necessary in this case to do is to quash the order for prosecution of the applicant u/s 211 of the Indian Penal Code.

Ross, J.

I agree.