K. Dholiah vs Sub-Inspector of Police

Sundaram Chetty, J.—This is a criminal revision petition filed by the accused against the conviction and sentence passed by the

Subdivisional Magistrate,. Coonoor, u/s 182, I. P. C, imposing. on him a fine of Rs. 25. The Subdivisional Magistrate took cognizance of this case

on a complaint filed by the Sub-Inspector of Police against the accused,. In that complaint it is alleged that the accused gave false information to

the Sub-Inspector of Police, Wellington, that three persons, namely, P. Ws. 3, 4 and 5, had broken the seal and lock of a temple in Karteri and

entered into the temple. After some investigation, the police reported to the Stationary Sub-Magistrate that the case was false. Thereupon, the.

present accused pressed the same complaint before the Stationary Sub-Magistrate, Coonor, requesting the Court to make a judicial investigation

of the charge. Subsequently the Magistrate discharged the accused persons in that case u/s 253 (2), Criminal P. C, finding the charge against them

to be groundless. Embodying these facts in the present complaint and alleging that by reason of these circumstances the accused has committed an

offence u/s 211, I. P. C, the present prosecution was launched by the Sub-Inspector of Police against the accused.

A preliminary objection was taken on behalf of the defence before the Magistrate that in the face of the facts alleged in the complaint, the

offence is one u/s 211, I. P. C, committed in or in relation to a proceeding in Court and therefore the Magistrate could not take cognizance of the

offence in the absence of a complaint in writing of the Stationary Sub-Magistrate, Coonoor. Overruling this objection, the learned Magistrate

considered that the case should be tried u/s 182, I. P. C., and accordingly tried the case which resulted in the conviction of the accused.

It is argued before us that the facts as set forth in the complaint clearly bring the offence u/s 211, I. P. C., alleged to have been committed in or

in relation to a proceeding in a Court, and that being so, the learned Subdivisional Magistrate had no jurisdiction to take cognizance of this case in

the absence of a complaint in writing of the Sub-Magistrate of Coonoor as required by Section 195 (1) (b), Criminal P. C. In the first place, it

must be observed that, if regard be had to the facts disclosed in the present complaint, the charge against the accused is not simply for giving false

information to the police (Section 182, I. P. C), or making a false charge against some parsons before the police (Section 211, I. P. C.), but it is

also distinctly stated that the false information to the police was followed by a complaint to the Stationary Sub-Magistrate who took cognizance of

the case and eventually discharged the accused holding the charge against them to be groundless. When a complaint sets forth certain facts

disclosing a minor offence and also a graver offence, the prosecution should ordinarily be for the graver offence. If in entertaining such a complaint

there is a legal bar to taking cognizance of the graver offence by reason of the want of a complaint by the Magistrate, the legal consequence should

not be allowed to be evaded by confining the case to the miner offence alone and disposing of it accordingly.

A similar question was considered by Curgenven, J. in a recent case reported in Perianna Muthirian v. Vengu Ayyar AIR 1929 Mad, and after

a review of the case law on the point that learned Judge has held, that if a graver offence is disclosed from the facts stated in a complaint, the

condition fixed in Section 195 (1) (b), Criminal P. C., for taking cognizance of such a case cannot be evaded by electing to name the offence under

another section which is more general and leas grave. The course which the learned Subdivisional Magistrate seems to have adopted in the present

case is open to the objection pointed out by Curgenven, J. in the above case.

A number of decisions have been brought to our notice, and there is doubtless a conflict of opinion; but in the present case, the question on

which there is; a conflict of judicial opinion does not, in. our opinion, necessarily arise for determination. If in the present case the complaint made

by the Sub-Inspector of Police against the accused was confined solely to the false information alleged to have been given to the police or the false;

charge made by him before the police,, then a question will arise whether by reason of the fact that this information or charge made to the police

was followed up by a complaint to the Magistrate would preclude the Subdivisional. Magistrate from taking cognizance of this case without a

written complaint from the Sub-Magistrate of Coonoor. The view taken by the Calcutta High Court is that, in such a case, even in respect of the

false charge made to the police, it should be taken to be an offence u/s 211 committed in relation to a proceeding in Court and therefore the

complaint of the Court itself would be necessary for taking cognizance of such a charge: Tayabulla v. Emperor [1916]43 Cal.1152, Brown v.

Ananda Lal Mullick [1917]44 Cal.650, Sheikh Samir Vs. Sajidar Rahman, . In the case decided by a Bench of the Patna High Court in Shaikh

Muhammad Yassin Vs. Emperor, , the view taken by the Calcutta High Court has been followed. The view taken in that decision goes a step

further, because it is stated that, even in respect of the false charge made to the police which, alone is the subject-matter of the complaint, the

complaint of the Court itself would be necessary for taking cognizance of the case, if it is shown that after making a false charge a complaint was

also preferred to a Magistrate for judicial investigation, even though that Magistrate had not investigated the complaint.

In a later decision of that High Court, Dariga Gopi v. Emperor A.I.R.1925 Pat.717, the principle of the decision in Muhammad Yassin v.

Emperor was upheld, if the prosecution be for an offence u/s 211, I. P. C, in respect of a false charge made to the police, but it is observed that

the case can be proceeded with even without a complaint in writing by the Magistrate if the offence is treated to be one falling u/s 182, I.P.C.,

whereas a contrary view was taken in the case in Rambrose v. Emperor A.I.R.1928 Rang.254, decided by a single Judge who says that a

prosecution u/s 182 (a minor offence) should not be permitted and should be abandoned when the facts amount to a graver offence u/s 211, I.P.C.

The view taken by that learned Judge is that the conviction for the minor offence when a charge under the graver offence could not be taken

cognizance of without the complaint of the Magistrate would not be legal. But this view has been dissented from in a subsequent decision of the

Bench of that High Court in the case reported in Ma Paw v. Emperor A.I.R.1931 Rang.12. On p. 505 (of 8 Bang.) the learned Judges have

however observed as follows:

In the ordinary way, if a prosecution takes place, it should be for the more serious of the two offences committed. This may, no doubt, he a good

ground for quashing proceedings under the minor section in their early stages; but when there has been no prosecution for the more serious offence

and a person has been prosecuted and convicted for the minor offence and the whole case is complete, we see no reason for holding that the

conviction is illegal and must be set aside.

It is noteworthy that the facts in that case are clearly distinguishable from the facts of the present case. The prosecution in that case was solely in

respect of the alleged false information made to the police which would bring the charge u/s 182, I. P. C, and no reference was made in that

complaint to any false charge made before a Magistrate subsequent to the giving of information to the police. In fact the complaint subsequently

made to the Magistrate was not even disposed of by that time. It was therefore held that the offence disclosed in the complaint put in by the police

was a distinct offence u/s 182, I. P. C,1 which can be tried on the complaint of the police officer himself. The view taken in Prag Datt Tiwari Vs.

Emperor and some other decisions of that High Court is in conformity with that expressed by the Rangoon High Court in Ma Paw v. Emperor. The

present case relates to a complaint which disclosed not only a false charge made to the police but also a false charge subsequently made to the

Magistrate on the strength of the same facts. Such a case could not be taken cognizance of without a written complaint by the Magistrate as

required by Section 195 (1) (b), Criminal P. C. The view expressed in the Calcutta decisions has been followed by a learned Judge of this Court in

the case in Murugan v. Gutha Rami Naidu A.I.R.1927 Mad.851. We are not dealing with a complaint by a police officer u/s 182, I. P. C. In such

a case alone, it may be doubted, in view of the conflict of judicial opinion pointed out above, whether a complaint by the Magistrate also is

necessary; but much of the ground for conflict has been steered clear, inasmuch as the present complaint disclosed clearly an offence u/s 211

alleged to have been committed in or in relation to a proceeding in Court.

That being so, the want of a complaint in writing by the Magistrate is certainly a bar to taking cognizance of this case by the Subdivisional

Magistrate. In this view, the conviction and sentence passed by him should be quashed as illegal, and the fine, if levied, will be refunded to the

accused.

Beasley, C.J.

I agree.