K. Dholliah vs Sub-Inspector of Police, Wellington Station

Sundaram Chetty, J.—This is a Criminal Revision Petition filed by the accused against the conviction and sentence passed by the Sub-

divisional Magistrate, Coonoor, u/s 182, Indian Penal Code, imposing on him a fine of Rs. 25. The Sub-divisional 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, Coonoor, 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 Procedure

Code, 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, Indian Penal Code, 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, Indian Penal Code, 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, Indian Penal Code 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, Indian Penal Code, alleged to have been

committed in or in relation to a proceeding in a Court, and that being so, the learned Sub-divisional Magistrate had 410 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) of the Code

of Criminal Procedure. 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, Indian Penal Code) or making a false charge against some

persons before the Police (section 211, Indian Penal Code), 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 minor offence

alone and disposing of it accordingly. A similar question was considered by Curgenveri, J., in a recent case reported in Perianna Muthirian v.

Vengu Aiyar (1928) 56 M.L.J. 208, 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) of the Criminal Procedure Code for taking cognizance of

such a case cannot be evaded by electing to name the offence under another section which is more general and less grave. The course which the

learned Sub-divisional 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 Sub-divisional 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. Tayebulla v. Emperor ILR (1916) 43 C. 1152, Brown v.

Ananda Lal Mullick ILR (1916) 44 C. 650 and Sheikh Samir v. Sajidar Rahman ILR (1926) 53 C. 824. In the case decided by a Bench of the

Patna High Court in Shaikh Muhammad Yassin v. King-Emperor ILR (1924) 4 Pat. 323 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 in Daroga Gope v. King-Emperor ILR (1925) 5 Pat. 33 the principle of the

decision in Shaikh Muhammad Yassin v. King-Emperor ILR (1924) 4 Pat. 323, was upheld, if the prosecution be for an offence u/s 211, Indian

Penal Code, 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, Indian Penal Code, whereas a contrary view was taken in the case in

Rambrose v. King-Emperor ILR (1928) 6 Rang. 578, 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, Indian Penal Code. 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. King-Emperor ILR (1930) 8 Rang. 499. 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, be 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, Indian Penal Code, 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, Indian Penal Code, which can be tried on the complaint of the Police Officer himself. The view taken

in Emperor v. Prag Datt ILR (1928) 51 A. 382 and some other decisions of that High Court is in conformity with ''that expressed by the Rangoon

High Court in Ma Paw v. King-Emperor ILR (1930) 8 Rang. 499. 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) of the Criminal Procedure Code. The view

expressed in the Calcutta decisions has been followed by a learned Judge of this Court in the case in T.S. Swaminatha Aiyar and Others Vs. M.

Guruswami Mudaliar and Others, We are not now dealing with a complaint by a Police Officer u/s 182, Indian Penal Code. 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 Sub-divisional

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.