M.L. Sethi, Advocate vs R.P. Irapur, I.C.S. and Another

C.B. Capoor, J.—This application in revision by Sri M.L. Sethi is directed against an order of the learned Sessions Judge Saharanpur whereby an application in revision filed by the Petitioner against two orders of the learned A.D.M. (Judicial) dated 6.8.1965 and 5.10.1963 was dismissed.

In order to appreciate the contentions advanced on behalf of the contestants the following facts had better be narrated. At One time the Petitioner and the Respondent No. 1 were friends. In the year 1958 Smt. Kaushilya Devi, the mother of the Respondent No. 1 (hereinafter to be referred as the Respondent) executed a registered sale deed in favour of the wife of the Petitioner in respect of two thousand squads of land in village Mohammadpur, Muniika, New Delhi, for a consideration of Rs. 20,000/-. The consideration money was paid by two cheques dated 5.1.1958 and 5.3.1958. On 10.12.1958 the Petitioner lodged a report with the Inspector General of Police, Punjab at Chandigarh against the Respondent and his mother in law for offences Under Sections 420, 109, 114 and 120B, IPC. The main allegations made in the aforesaid report were that prior to the execution of the aforesaid sale deed the Respondent represented to the Petitioner that the aforesaid plot of land was purchased by the vendor at the same rate at which it was proposed to be sold and was actually sold by her to the wife of the Petitioner, that the Respondent also represented that a scheme had been approved by the Government whereunder the area was to be developed by Government in conformity with a planned lay out and that those persons who had already acquired plats in the area for bona fide construction of residence shall be allotted alternative plots in the same area when it had been properly laid out and developed. The aforesaid allegations according to the Petitioner were false to the knowledge of the Respondent. It was said that there was no such scheme as was alleged by the Respondent to have been approved by the Government, rather, the plot of land sold by the mother in law of the Respondent to the wife of the Petitioner had already been acquired by Government under the Land Acquisition Act and that Smt. Kaushilya Devi had purchased the aforesaid plot of land at Rs. 5/- per square yard and not at Rs. 10/- per square yard as represented. Investigation was taken into hand in puissance of the aforesaid report and the Respondent was arrested on 18.7.1959 and a charge sheet was submitted against him on 25th of July, 1959.

In respect of the vended land compensation under the Land Acquisition Act was awarded at the rate of Rs. 3/8/.- per square yard. It will have been noticed that the aforesaid plot of land was sold, for Rs. 20,000/-and the vendee suffered a loss of Rs. 13000/-. The Petitioner''s contention was that as false representations were made by the Respondent and his mother in law they were liable to reimburse the aforesaid loss. The Petitioner had gone to the house of the Respondent''s mother in law in order to recover the aforesaid loss and, according to the Respondent, had held out a threat that dire consequences will ensue and the Respondent will be got dismissed from, service if the aforesaid sum of Rs. 13000/- was not paid to him.

On 11.4.1959 a complaint was filed by the Respondent against the Petitioner in the court of Judicial Magistrate, First Class, Chandigarh for offences Under Sections 204, 211 and 383, IPC. The gravamen of the Respondent was that the report lodged by the Petitioner against him was false and had beep lodged with intent to injure his fair name and reputation and with a view to extort a sum of Rs. 13,000/-. It was alleged that even prior to the lodging of the aforesaid report the Petitioner had held out a threat as indicated in the earlier portion of this judgment. Another allegation made in the complaint was that the Petitioner had secreted five documents from the officer who was investigating into the report lodged by him. It was said that if those documents had been produced before the Investigating Officer the falsity of the report would have been exposed. The learned Judicial Magistrate took cognizance of the case, recorded the statement of the Respondent u/s 200, Code of Criminal Procedure and directed that process be issued to the Petitioner.

Applications were made to the learned Judicial Magistrate by the Petitioner that as the report already lodged by him with the police against the Respondent was under investigation, the process issued to him in pursuance of the complaint filed by the Respondent should be withdrawn. Those applications did not find favour with the court. By order of the Supreme Court the case which was initiated against the Respondent and the case which arose as a result of the complaint filed by the Respondent were transferred to Saharanpur in the State of UP in the year 1961. The former ease was transferred by, this Court to its own file and the charge framed against the Respondent has been quashed.

While the case in pursuance of the complaint filed by the Respondent was pending in the court of the learned Additional District Magistrate, Saharanpur an application dated 6.5.1963 was made by the Petitioner praying that the alleged offences Under Sections 204 and 385, IPC were intimately connected with the alleged offence u/s 211, IPC and that in view of Section 195, Code of Criminal Procedure the court was not competent to take cognizance of any one of the aforesaid offences, and as such the process issued against him should be withdrawn. This application was rejected on 6.8. 1963. On 16.8.1963 the Petitioner moved another application in the aforesaid court praying that the trial should not be proceeded with as the court was not competent to take cognizance of the case in view of the bar created by Section 195 of Code of Criminal Procedure. This application met with the same fate as the one dated 6.5.1963. It was against the aforesaid two orders that the Petitioner moved an application in revision in the court of the Sessions Judge Saharanpur and as the latter court declined to interfere, an application has been moved in this Court.

The main question that arises for consideration is as to whether by virtue of Section 195, Code of Criminal Procedure the court was precluded from taking cognizance of the offence u/s 211, IPC in pursuance of the complaint filed by the Respondent. The material portion of Section 195, Code of Criminal Procedure reads as below:

"(1) No court shall take cognizance

(a) of any offence punishable Under Sections 172 to 188 of IPC, except on the complaint in writing of the public servant concerned".

(b) of any offence punishable under any of the following sections of the same Code, namely Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.

The material portion of Section 211, IPC runs as below:

Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing the there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

It has firstly been contended on behalf of the Petitioner that in lodging the report with the I.G. of Police, Punjab, the Petitioner did not charge the Respondent with having committed, an offence and that what he had done was merely to bring to the notice of the police the facts and had left it to the police to investigate into, the master and proceed against the Respondent: if the investigation of the case justified that course and as such Section 211 IPC was not attracted.

In the case of Kashi Ram and Others Vs. Emperor Through Miyan Jan, the dividing line between a mere report and a charge was stated in the following words:

If the complainant confines himself to reporting what he knows of the facts, stating his suspicions, and leaving the matter to be further investigated by the police, or leaving the police to take such course as they think right in the performance of their duty, he may be making a report, but he is not making a charge. But if he takes the further step, without waiting for any official investigation, of definitely alleging his belief in the guilt of a specified person, and his desire; that the specified person be proceeded against in Court; that act of his, whether verbal or written, if made to an officer of the law authorised to initiate proceedings based upon the complainant''s statement, whether amounting to an expression of the complainant''s belief in the guilt, of the specified person, or his desire that Court proceedings be taken against him, amounts to making a charge." A reference to the FIR lodged by the Petitioner would indicate that it had been definitely stated therein that the Respondent had made false representations to the Petitioner prior to the execution of the sale deed and that he had thereby committed the offence Under Sections 420, 109, 114 and 120B of IPC and put on the anvil of the test as formulated in the 1924 Allahabad case (Supra) there can be no doubt that the Petitioner had charged the Respondent with having committed an offence. Now if that charge is found to be false, the Petitioner would be guilty of the offence u/s 211 of IPC. The contention advanced on behalf of the Petitioner that a prima facie case u/s 211 of IPC was not made out on the allegations made in the complaint is barren of substance and has to be rejected.

The second contention advanced on behalf of the Petitioner is that the alleged offence u/s 211 of IPC was committed ''in relation to a proceeding in court'' within the meaning of the expression as used in Section 195(1) (b) of Code of Criminal Procedure and as such the court was not competent to take cognizance of the aforesaid offence in the absence of a complaint in writing of the court concerned. Stated differently, the contention is that as the Respondent was arrested and was remanded to custody by order of a Magistrate and a charge-sheet was submitted against him by the police, cognizance of which was taken by a competent court, the alleged offence u/s 211 of IPC was in relation to a proceeding in court. On behalf of the Respondent on the other hand, it has been contended that at the time when the complaint by him was filed and its cognizance was taken by the court of the Judicial Magistrate, Chandigarh, no proceeding in court in relation to the alleged offence was pending and the bar created by Section 195 (1) (b) of Code of Criminal Procedure did not and could not come into play.

On behalf of the Petitioner reliance has, in the main, been placed upon the following cases:

Emperor v. Hardwar Pal (2) (ILR 34 All. 522); Badri v. State (3) (1963 AWR 270); J.D. Boywalla v. Sorab Rustomji Engineer (4) (AIR 1941 Bom. 294); Emperor Vs. Bajaji Appaji Kote, ; Satkari Ghose Vs. Ram Lakshman Dutta, ;; Deb Narayan Ghakraborty v. The State (7) ( AIR 1957 Gal. 251); State v. Vipra Khimji Gangaram (8) (AIR 1952 Sau. 67); In Re: Eswardoss Kalidoss, ; Daulat Ram v. State of Punjab [10] [ AIR 1962 SG 1206: 1962 AWR 868].

There is a divergence of judicial opinion on the scope of the expression "in relation to a proceeding in court", but before I proceed to discuss the rulings referred to above and the cases in which a different opinion has been expressed, I would like to state that no ruling has been brought to my notice in which it has been held that a report, which is the basis of an offence u/s 211 of IPC, is related to a proceeding in court even though at the time when cognizance has been taken of an offence u/s 211 of IPC he other proceeding in court may be pending.

I will first advert to the cases decided by this Court. In the case Emperor v. Hardwar Pal (2), one H made a report at the police station against several persons including one S charging them with rioting and voluntarily causing hurt. The police made inquiry and sent up several persons for trial but not S. Some of these were convicted by the Magistrate but acquitted by the Sessions Judge. Thereupon S made a complaint to the Magistrate charging that H had made a false report in respect of himself to the police. The Magistrate took cognizance of the complaint. It was held that the Magistrate had no power to take cognizance of the complaint by reason of the absence of sanction which was required u/s 195 of Code of Criminal Procedure as it then stood. This view was dissented from in the case of Kashi Ram and Ors. v. K.E. through Mean Jan (1) where it was held that if a charge is made against several people but one of them is not proceeded against and is not charged in court, the fact that the others are charged in court does not make the charge against the former a charge in court. The last mentioned decision was followed in the case of Emperor v. Prag Dutt (11) (ILR 1951 All. 382) wherein it was held that if a false charge is made to the police an offence u/s 211 of IPC is complete and merely because a similar complaint is subsequently made in a court it cannot be said that the offence was committed in or in relation to any proceeding in court. In the case of Sheo Bilas and Anr. v. The State (12) (1958 AWR 665) A.P. Srivastava, J. held that where an offence punishable under Sections 193 and 196 is committed not while any proceedings are pending in any court, but while the case is still in the investigation stage, no complaint u/s 195(1) (b) is necessary by a court before cognizance can betaken of the offence.

In the case of Badri v. State (3) Badri made a report at a police station against the complainant Gyari and, his relations accusing them of committing the offence u/s 307 of IPC. The police investigated into the report And arrested the complainant and his relations who were produced before a Magistrate who remanded them to custody and an application moved by them for being enlarged on bail Was refused. After investigation the police submitted a report u/s 173 of Code of Criminal Procedure that on investigation the report made by Badri was found to be false. The complainant and his Deletions Were discharged. A complaint was thereafter filed against Badri accusing him of having committed the offence u/s of IPC. A question arose as to whether the complaint was barred u/s 195(1) (b) of Code of Criminal Procedure and the question was answered in the affirmative. The aforesaid case is clearly distinguishable inasmuch as prior to the filing of the complaint u/s 211 of IPC Gyari and others had been produced before a Magistrate and had been remanded to custody and an application moved by them for being enlarged on bail had also been refused. In the instant case, however, no such proceeding had taken place prior to the filing of the complaint by the Respondent against the Petitioner. The aforesaid decision is not an authority for the proposition that the mere lodging of a FIR of a cognizable offence at a police station is related to a proceeding in court.

In Emperor v. Ukha Mahado Barase (13) (29 Grl LJ 225) Ukha had made a complaint to the police which was found to be false. He was committed for trial to the sessions court for an offence u/s 211 of IPC. After the committal order had been made on the same day Ukha made a complaint to the Magistrate which was a repudiation of his report to the police. The Magistrate committed the accused mentioned by Ukha to the court of session and afterwards they were acquitted. When the case u/s 211 of IPC against Ukha was taken up by the Sessions Judge it was argued that no proceeding in regard to the alleged falsity of the first complaint could be taken without the sanction of the Magistrate Under Sub-section (1) (b) of Section 1P5 of Code of Criminal Procedure. Repelling the aforesaid contention it was held by the Bombay High Court that the committal order, When it was passed, was perfectly valid because there had been no complaint made to a Magistrate which could supersede the complaint to the police and that Section 195 of Code of Criminal Procedure at the time of that committal order would not require any complaint in writing by a court because the offence u/s 211 of IPC was not alleged to have been committed in or in relation to any proceeding in any court within the meaning of Clause (b)of Sub-section (1) of Section 195, Code of Criminal Procedure.

The facts of the case of J.D, Boyawalla (4) were as follows:

On the receipt of a complaint the police started investigation and arrested a person and released him on bail, and subsequently applied to the court to have the bail enlarged and order to that effect was made. The police then investigated further into the matter and eventually made a report to the magistrate saying that, as no evidence had been disclosed against the person, he be discharged and his bail bonds cancelled and the magistrate passed an order discharging him. It was held that the magistrate could act upon the report of a police officer without further inquiry and that the order of the magistrate was a judicial order. Therefore, the alleged false charge was made in or in relation to a proceeding in court and for proceeding against the complainant u/s 211 IPC a complaint by the magistrate was necessary.

In Bayaji Appaji Kate v. Emperor (5), which is the sheet-anchor of the Petitioner, the facts were these:

Bayaji Appaji gave information to the police that one A was in possession of wheat stolen from his house on investigation, this complaint was found to be false. Thereafter, the police seat a charge sheet against Bayaji u/s 211, IPC but before that the said Bayaji had filed a regular complaint on the same facts before a Resident Magistrate Belapur Road and that complaint eventually ended in the discharge of the accused. Thereafter the case against the aforesaid Bayaji u/s 211, IPC was taken up for trial. It was contended on behalf of Bayaji that the trial could not goon without a complaint from the magistrate as required by Section 195(1)(b) Code of Criminal Procedure. It was in the aforesaid setting of facts that the learned Judges of the Bombay High Court held that in view of Section 195(1)(b) Code of Criminal Procedure cognizance could not be taken of the offence u/s 211 IPC. It will have been noticed that prior to the receipt of the charge sheet from the police for the offence u/s 211, IPC a complaint had been filed in court and that fact distinguishes the Bombay case from the facts of the instant case. It is significant that the earlier decision of the Bombay High Court in Emperor v. Ukha Mahado Barase (13) was distinguished and not dissented from. At page 10 the learned Judges in the case of Bayaji Appaji (5) are reported to have observed as below:

We are, therefore, clearly of opinion that where an alleged false complaint is first made to the police and then to a Court a complaint u/s 211, IPC subsequently filed is a complaint of an offence alleged to have been committed in, or in relation to a proceeding in Court and cannot be taken cognizance of except on the complaint of the Court. This view does not in any way conflict with the decision in 29 Bom. LR 1590 (29 Cri. LJ 225) where the case against the informant u/s 211, IPC, had been committed to the sessions before he filed a complaint to the Court.

Thus on the strength of the 1946 Bom. Case (5) it cannot be successfully contended that an alleged offence u/s 211, IPC should be held to be in relation to a proceeding in court if a charge sheet is subsequently submitted by the police in pursuance of a false report.

The Calcutta cases relied upon on behalf of the Petitioner need not be noticed in detail for a Narazi petition was filed in those cases after the police had submitted a final report and the prosecution u/s 218/182, IPC was started after the Narazi petition had been enquired into and dismissed. Those decisions are clearly distinguish able from the instant case.

In State v. Vipra Khimji Gangaram (8) relied upon on behalf of the Petitioner, it was held that a Magistrate passing an order on a final report of the police sent after investigation u/s 173 of Code of Criminal Procedure should be deemed to be a court passing a judicial order disposing of the information given to the police and thus a complaint u/s 211 of IPC filed thereafter would not be taken cognizance of unless it be filed by the Magistrate. The question that arises in the instant case was not considered in the case of Daulat Ram v. State of Punjab (10) and that decision also need not be noticed in any detail.

The precise question that arises for consideration in the instant case is as to whether the alleged offence u/s 211 of IPC was committed in relation to a proceeding in court. From the narration of facts in the earlier portion of this judgment it will be abundantly clear that no such proceeding was pending. It is worthy of note than the Respondent was arrested and the remand orders were made after the filing of the complaint by the Respondent. The learned Sessions Judge, in my opinion, was quite right in holding that Section 195 (1) (b) of Code of Criminal Procedure did not operate as a bar to the taking of cognizance by the learned Judicial Magistrate, Chandigarh, of the offence u/s 211 of IPC.

It has also been contended on behalf of the Petitioner that even if Clause (b) of Section 195(1) did not operate as a bar, Clause (a) would. The contention is that if the FIR lodged by the Petitioner was false an offence u/s 182 would be made out and by virtue of Clause (1) referred to above, no court could have taken cognizance of that offence except on a complaint by the public servant concerned or by one to whom he was subordinate.

In support of the aforesaid contention reliance has been placed upon, the case of Dujai v. State and Anr. (14) (1961 AWR 286). In that case, A.N. Mulla, J. held that Section 211 of IPC contemplated that a complaint should be instituted before a court either by the accused himself or at his instigation and that where no complaint was filed before a court against a person even if the allegation made in a report earlier is completely false, Section 211 of IPC would not be applicable. He further held that where false allegations are made before a public servant then it is Clause (a) of Section 195(1) which is operative. If as a result of such false information a case is instituted in court or the accused himself takes the case to court on the basis of that false accusation it comes within the orbit of Clause (b) of Section 195(1).

The aforesaid view, if I may say so with respect, is not borne out by the language in which the section is couched. It is a well established canon of interpretation that in the absence of compelling reasons the language of statute should not be modified and no word should either be added to or subtracted from the language of the provision of law to be interpreted. There are observations in the ease of Haridas Das and Another Vs. State of West Bengal and Others, which throw a doubt on the correctness of the view expressed by Mulla, J. in the aforesaid case. The question that arose in the Supreme Court case referred to above was as to whether a proceeding of committal for contempt of court was a criminal proceeding or was it tent amount to falsely charging a person with having committed an offence as contemplated by Section 211 of IPC. Hidayatullah, J. was of the opinion that such a proceeding was a criminal proceeding. In the opinion of the other two learned Judges, it amounted to falsely charging a person with having committed an offence. During the course of his judgment, Mudhotkar, J. made the following observations:

Does the section mean that a false charge made before any person is punishable thereunder or is it restricted to such charge being made to a person holding a particular position? It seems to me that since making of a false charge before any person, whosoever he may be, is covered by Section 499, IPC it would be appropriate to construe this section as being applicable only to a case where a false charge is made by the accused persons against another before a person who is competent to enquire into it and either take proceedings himself or cause proceedings to be initiated. I do not however, think that it is, limited to false charges made to a person who also has the power to try the accused or commit him for trial by another court. Such an interpretation is sufficient to prevent any overlapping of the provision of this Section (211) with those of Section 500 and it is not necessary to go further than this." And further on:

In my judgment it would" not be right to read the words "or falsify charges" as being in any way restricted by the words "institutes or causes to be instituted any criminal proceedings." The Legislature has clearly provided for two kinds of acts one the institution of proceedings and the other of making a false charge and I see no compelling reason for reading the section as if u is limited to the institution of a complaint upon a false charge. I, therefore, agree with the view taken by the Full Bench in Karim Buksh''s case, (ILR 17 Cal. 574) to which Jardine, J. had referred.

An offence u/s 211 of IPC is graver than the offence u/s 182 of that Code. The distinction between a report and a false charge has been noticed in the earlier portion of this judgment. It has also been found that if the allegations made in the complaint were true a false charge was laid against the Respondent by the Petitioner. Section 182 of IPC and, exhypothesi, Clause (a) of Section 195, Code of Criminal Procedure has no application either. The contention advanced on behalf of the Petitioner is barren of substance.

In view of the aforesaid findings it is not necessary to go into the question as to whether the offences Under Sections 204 and 385 of IPC were so connected with the offence u/s 211 of IPC that their cognizance also could not be taken of. I am, however, of the opinion that even if it be held that it was not within the competence of the learned Judicial Magistrate of Chandigarh to take cognizance of the offence u/s 211 of IPC on the complaint filed by the Respondent. The offences Under Sections 204 and 385 of IPC were distinct from the offence u/s 211 and, in view of the decision of the Supreme Court in the case of Basir-ul-huq and Others Vs. The State of West Bengal, on the complaint of Dhirendra Nath Bega, the bar created by Section 195 (1) (b) would not apply to the offences Under Sections 204 and 385 of that Code. So far as Section 385 of IPC is concerned, it may, with advantage, be mentioned at this stage that even prior to the lodging of the FIR by the Petitioner to get him dismissed from service is alleged to have been held put by the Petitioner. It could not, therefore, be said that the alleged offence of Section 3S5, IPC was so mixed up with the offence u/s 211 of IPC that it the bar of Section 195(1)(b), Code of Criminal Procedure were to operate vis a vis Section 211 of IPC it must also operate vis a vis the offence u/s 385 of IPC.

There is a dispute between the parties on some of the facts on which the decision of the question, as to whether the offences Under Sections 385 and 204 of IPC are made out hinges and, at this stage, it would not be proper to go into those disputed questions of fact.

In conclusion, the application in revision lacks merits and it is, accordingly, dismissed.