Lachmi Singh vs Emperor

Kulwant Sahay, J.—This case was heard in part on the 25th March, 1924, when time was granted on the application of Mr. Varma who appeared for the Assistant Government Advocate in order to enable him to ascertain whether a complaint in writing was filed by the writer Head Constable as contemplated by Section 195 of the Criminal Procedure Code. Mr. Varma now intimates that enquiries were made from the Sub-Deputy Magistrate of Barh who tried the case and that the said Sub-Deputy Magistrate had written to say that so far as he and the Court Sub-Inspector of Barh recollect a petition of complaint in writing was filed by the writer Head Constable who was examined at the time of filing the complaint in writing. Any such complaint, however, is not found on the record but no objection appears to have been taken either in the Trial Court or in the Court of Appeal below or even in the application for revision filed in this Court as regards the absence of the complaint in writing. In paragraph 7 of the application for revision filed in this Court, the petitioner states that on the 25th of September, 1923, the complaint was filed by Nand-kishore Singh, writer Head Constable, u/s 182 and that the petitioner was summoned under that section. The absence of the written complaint was discovered for the first time when the argument was going on before me.

Having regard to the circumstances of the case, I am not prepared to say that the conviction is bad in law simply because no complaint in writing is found on the record. The probabilities are that a regular complaint in writing was filed, otherwise objection would have been taken at one stage or other on this point. In the second, place, assuming that there was no complaint in writing, to my mind this would not make the conviction illegal. The provision as regards the complaint in writing u/s 195 was introduced in the Act by Section 47 of the Code of Criminal Procedure (Amendment) Act XVIII of 1923. The section, as it stood before the amendment provided that "no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code except with the previous sanction, or on the complaint, of the public servant concerned or of some public servant to whom he is subordinate." By the amendment, the provision as regards previous sanction has been removed and the words " in writing " have been added after the word "complaint." Section 200 of the Code has also been amended by the same amending Act and a new Clause (aa) has been added therein which provides that "when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties." It, therefore, appears that the object of introducing the words "in writing" after the word "complaint" in Section 195 and adding Clause (aa) to Section 200 was to remove the inconvenience which might be felt if it was made incumbent on the Magistrate to examine the complainant when taking cognizance of an offence. As the provision as regards sanction was removed from Section 195 and as it was made obligatory for the public servant concerned to make a complaint instead of giving a sanction in order to prosecute a person for offences referred to in Section 195 of the Criminal Procedure Code, it was perhaps thought necessary that it would cause a good deal of inconvenience if such public servant had to attend the Court and to appear before the Magistrate in order to lodge the complaint. In the present case, the complainant, namely, the writer Head Constable, was examined on oath by the Magistrate when cognizance was taken of the offence. Section 537 of the Code provides that "subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the complaint". To my mind the absence of a complaint in writing, at the most, would only amount to an error, omission or irregularity as contemplated by Section 537 of the Code. Moreover, the explanation attached to Section 537 provides that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. As I have noted, no objection was ever taken by the accused on the ground of the absence of a complaint in writing, and nothing has been shown that such irregularity has occasioned a failure of justice in the present case. I, there fore, hold that even if there was no complaint in writing filed in this case the conviction is not bad in law on this account only. It may be noted that in the Court below an objection was taken, that the proper person to make the complaint was the Sub-Inspector before whom the information was given by the accused and who had recorded the same, and not the writer Head Constable who had only made an enquiry in the matter. This objection has not been pressed before me and I find there is no substance in it.

As regards the merits, I am of opinion that upon the findings arrived at both by the Trying Magistrate and the Additional District Magistrate, there can be no doubt that the conviction u/s 182 of the Indian Penal Code was legal and proper. It has been found that the information lodged by the accused in his capacity as chaukidar of the village relating to the death of a woman on account of an assault committed by her husband was deliberately and maliciously false. There was no reasonable ground for the petitioner giving information to the Sub-Inspector. It has been proved that the petitioner was in the village at the time the woman was taken to Barh for treatment about two weeks before her death, that he was present at the time she was brought back to the village from Barh, and that he was also present in the village at the time the woman died and her body was removed for cremation. It is unlikely that he would have no personal knowledge of the cause of the death and that he would rush to the thana and lodge information of a mere rumour which he had heard from a woman without making any enquiry as regards the truth of the rumour. It has been found that litigations are going on in the village and that the nephew and the brother of the accused are implicated in a rioting case, and that Mangar, the husband of the woman, was a party of a faction in the village which was opposed by another faction with which the accused and his nephew and brother seem to be associated. There is a clear finding upon the evidence that the accused knew that the information given by him was false and that he gave the information maliciously with the deliberate object of putting Mangar to trouble and disgrace. It has been contended by the learned Vakil for the petitioner that the accused as a chaukidar was bound to give information to the Police u/s 45 of the Criminal Procedure Code. Section 45 makes it incumbent on every village watchman and other persons named therein to forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest Police Station any information which he may possess respecting, among others, occurrence in such village of any sudden or unnatural death or of any death under suspicious circumstances. This section does not make it incumbent on the village chaukidar to communicate to the officer in charge of the Police Station any rumour of any occurrence prevailing in- the village. It is only an information which he may himself possess that is to be community cated to the office in charge of the Police Station. It is noteworthy that the amending Act XVIII of 1923 has substituted the word "possess" in place of the Word "obtain" in Section 45, making thereby only such information which the informant may possess to his own knowledge fit to be communicated to the officer in charge of the Police Station. I am of opinion that Section 45 of the Criminal Procedure Code affords no justification for the action taken by the accused in the present case.

As regards the sentence, the learned Trying Magistrate has awarded what he calls "an exemplary punishment." Having regard to the circumstances of the case, however, I am of opinion that a sentence of one month''s rigorous imprisonment will meet the ends of justice.

The result is that the conviction is upheld, but the sentence is reduced to one month''s rigorous imprisonment and a fine of Rs. 25, in default one month''s further rigorous imprisonment.