Mukti Narayan Gir vs Emperor

Manohar Lall, J.—This is an application on behalf of one Mukti Narayan Gir, who has been ordered to be prosecuted u/s 211, I.P.C., as the result of a proceeding u/s 476, Criminal P.C., started by the Sub-divisional Officer of Bettiah by his order, dated 6th April, 1939. The petitioner appealed to the learned Sessions Judge of Muzaffarpur u/s 476-B, Criminal P.C., but without success. Hence he moved this Court, and a rule was issued by Mohamad Noor J., on 30th August 1939. It is necessary to state the fActs, though somewhat briefly. On 23rd January 1939, an incident admittedly occurred owing to the Cane Inspector having gone to the place of the petitioner in order to investigate into the allegations which were made to him regarding the petitioner''s conduct in selling cane to Bagha Sugar Factory in contravention of the order of the Cane Commissioner. The petitioner''s version as to what happened on that date was the subject of a complaint which he lodged before the Sub-Divisional Officer of Bettiah on 26th January 1939.

The complaint was against six persons by name including one Mr. R.N. Lines, I.C.S., Cane Inspector of Bettiah Sub-Division. The other accused were persons connected with Harinagar Mills and a driver of one Bansi Lal Chaudhury. The allegations against them which were set out in the petition of complaint are to be found at pp. 13 and 14 of the paper-book. The substance of the allegations was that Mr. Lines on coming up to the house of the petitioner asked the complainant why he was supplying sugarcane to the Bagha Factory, upon which the complainant told him that after receiving a letter from the Cane Commissioner of Patna he had stopped supplying sugarcane to the Bagha Mills. Mr. Lines was not satisfied with the explanation, and upon this it was alleged that Mr. Lines in an angry mood said that the complainant was surely supplying sugarcane to the Bagha Factory and asked the complainant to sign a paper which was written in English. The complainant refusing to sign the paper, it was alleged that

he was surrounded by all the accused and accused 1 to 6 in hot words began to threaten the complainant that in case he would refuse to sign the paper he would be arrested and sent to jail.

It was also alleged that accused 1 and 5, that is to say Bansi Lal Chaudhury and Mr. Lines, insulted the complainant with abusive language by addressing him as badmash and beiman. These allegations formed the subject of the complaint, the offence alleged was under Sections 500, 504 and 506, I.P.C. Upon receipt of this complaint the Magistrate, as he was required by law, examined the petitioner on oath and in his examination on oath the petitioner gave the version to the extent that it was within his own knowledge and experience. He says that on 23rd January at about 10-30 A.M. the accused persons came to him in two motor cars and stopped at his house; whereupon Mr. Lines questioned him regarding the supply of sugarcane. The complainant denied that he was supplying sugarcane since the receipt of contrary orders from the Cane Commissioner, but Mr. Lines persisted in saying that the complainant was surely supplying sugarcane to the Bagha factory.

Mr. Lines also asked the complainant to sign on a paper which he refused. The remaining persons, it was then stated in the solemn affirmation as recorded all surrounded the complainant. It will be noticed therefore that Mr. Lines was not alleged to have surrounded the petitioner. The examination goes on; Mr. Lines then said that he would get the complainant imprisoned and Babu Bansi Lal said that he would get him ruined, and Mr. Lines said that the petitioner was a badmash and beiman. The learned Magistrate on that date passed the following order: "Examined the complainant on solemn affirmation. I shall look into the matter and then pass orders."

I fail to see any indication in this order that the Magistrate had any ground for disbelieving the truth of the complaint. If the Magistrate had any doubt as to the truth of the allegations in the petition of complaint as supported by the solemn affirmation of the petitioner, he ought to have recorded an order to that effect in the order sheet, so that the superior Courts may be satisfied that the Magistrate had any justification whatsoever in refusing to issue summons to the accused as required by law. The Magistrate could also (but only after giving proper and adequate reasons) either summarily enquire into the truth of the complaint himself or call for an enquiry and report as provided by Section 202, Criminal P.C.

The next order, which I find in the order sheet, is dated 21st March 1939, that is to say about two months after this date. The order sheet is silent as to what happened to this complaint for this long time. But on looking into the record I find that the Magistrate had taken some pencil notes of the evidence of some witnesses. At p. 11 of the record the pencil note shows that Mr. Lines was examined by the Magistrate on 28th February 1939. Mr. Lines, it is to be remembered, was an accused in the case. After that the record is again silent till 21st March 1939, when a number of witnesses, apparently on behalf of the complainant, were examined. The Magistrate then records the second order on 21st March, which runs as follows:

Examined several witnesses at the spot in presence of the complainant and most of the persons complained against. One witness of the complainant is absent. He wants time to produce him. Let him produce that witness in Court on 28th March 1939.

Thereafter the petitioner prayed for a summons to his witness, who could not be examined earlier than 1st April, and then the matter was adjourned to 6th April. On 6th April, the Magistrate recorded an order which runs into seven closely typed pages. A perusal of the order shows that the so called enquiry report was nothing short of a judgment in a regular trial. If the Magistrate was prepared to take all that trouble in order to ascertain the truth of the complaint, which was supported by a number of witnesses examined on behalf of the complainant, I think it was his bounden duty to issue summonses to the accused and then to have passed an order of acquittal if he was not satisfied as to the truth of the prosecution case presented at the trial. The Magistrate however took this unusual course because, as he says, one of the accused was-a member of the highest service in the land who was sworn to do justice.

I need not quote the lengthy observations made by the learned Sub-divisional Officer. These observations were made to show why he preferred to believe the defence case put forward by Mr. Lines. The Magistrate concluded his order by saying that he would not be justified in issuing any summonses to the accused and dismissed the petition of complaint u/s 203, Criminal P.C., as maliciously false.

In the meantime an important event happened. Mr. Lines, on 7th February 1939 that is long before Mr. Lines himself was examined apparently in the course of the enquiry into the truth of the complaint of the petitioner, lodged a counter-complaint to prosecute the petitioner for offences u/s 27, Sub-clause (5)(a) read with Section 18(3) and Rule 44(c) and (2) and Rule 10(c) and (g), Bihar Sugar Factories Control Act, 1937. In that complaint the charges against the petitioner were that on 23rd January 1939 he was selling sugarcane to Bagha Sugar Factory out of Harinagar Factory''s reserved area and that he refused to sign the statement which he made to Mr. Lines.

It will be noticed therefore that the allegations which the petitioner made in his complaint were with some variation the very allegations which Mr. Lines alleged in the case against the petitioner. The case started by Mr. Lines proceeded to trial, and on 28th June 1939, a Second Class Magistrate, Mr. Ekka, acquitted the petitioner, holding that the charges wore not proved against the accused.

I now come to the order which was drawn up by the learned Sub-divisional Officer u/s 476, Criminal P.C. The learned Magistrate did not hold any further enquiry as to whether it was desirable in the interest of public justice to prosecute the petitioner for having lodged a maliciously false case.

It is well settled that the failure of a complainant to prove his case is not the same thing as the institution of a maliciously false case so as to make him liable for an offence u/s 211, I.P.C. This was so held in Chhedi Upadhya Vs. King Emperor, . In that case, it may be noticed, Adami J., condemned the procedure adopted by the Sub-Deputy Magistrate who was found to have practically held a trial in considering whether the complaint of the petitioner in that case should be dismissed or not. (This is exactly what was done in the present case.) As pointed out by that learned Judge, the only question before the trying Magistrate was whether prima facie the complainant had made out a true case which would justify the summoning of the accused and that what really happened was a trial of the complainant''s case in the absence of the accused, though witnesses for the accused were called.

It is very much to be regretted that notwithstanding the repeated observations of this Court, this Court is once more forced to draw the attention of the Subordinate Courts that they should abstain from adopting an illegal procedure, which has been repeatedly condemned, when examining the truth of a complainant''s case at a stage where the only question that arises for consideration is whether a summons should issue to the accused or not. In Bhuan Kahar v. Emperor AIR (1925) Pat 329 Kulwant Sahay J. took the same view that the fact that the complainant fails to prove his case is by itself not sufficient to sanction a prosecution u/s 211 of the Penal Code.

A Division Bench of the Calcutta High Court in Giridhari Naik v. Empress 5 CWN 727 pointed out as far back as 1901 that Section 211, I.P.C.,

undoubtedly contemplates a charge, which is indivisible in its nature, and therefore what is to be considered is the nature of the complaint or charge made by the accused; in other words, whether the complaint is substantially true and what is false is a mere fringe to the complaint, or whether the substantial complaint is false and what is true is a mere fringe or in other words a mere accessory circumstance.

Order No. 5 of 6th April 1939 is simply this:

Orders passed and complaint dismissed u/s 203, as maliciously false as per report separately attached. Draw up a complaint u/s 211 Indian Penal Code.

The complaint actually drawn up by the learned Sub-divisional Officer is in these words:

One Mahanth Mukti Narain Gir, son of Parson Gir, of Kumhia Khurd P.S. Ramnagar, filed a complaint in my Court on 26th January 1939 against Mr. R. N. Lines, I.C.S. and others under Sections 500, 504 and 506, I.P.C.

On enquiry, the complaint, being found to be maliciously false, was dismissed by me u/s 203, Criminal P.C. Whereas it is expedient in the interest of justice that an enquiry should be made into the offence u/s 211, I.P.C., alleged to have been committed by the aforesaid Mahant Muktinath Gir. I therefore complain that he may be proceeded with in accordance with law.

Against this complaint an appeal was preferred to the learned Sessions Judge which was disposed of by Mr. Salisbury on 29th July 1939.

This learned Judge did not consider in the least whether it was desirable in the interest of public justice that the petitioner should be proceeded against for the offence u/s 211, I.P.C. A decision in Harnarain Halwai v. Kariman Ahir AIR (1920) Pat 655 was brought to his notice. There it is laid down in clear and unmistakable terms that it was not only irregular but illegal for a Magistrate to whom a complaint is made to call upon the person accused for a report as to the truth or falsity of the charge preferred against him. But the learned Sessions Judge sought to distinguish this authority of a Division Bench of this Court by relying upon two Single Judge decisions of this Court--one by Foster J. and another by Scroope J. The decision by Poster J. is reported in Ram Saran Singh v. Mohammad Jan Khan AIR (1926) Pat 34. Poster J. considered the cases of the Calcutta High Court which were cited before him, but the case in Harnarain Halwai v. Kariman Ahir AIR (1920) Pat 655 was not brought to his notice; and indeed the learned Judge says:

The learned vakil for the petitioner has not put before me any authority for the proposition that these departures from the letters of the law are other than an irregularity;

then after dealing with the cases reported in Baidya Nath Singh v. Muspratt (1887) 14 Cal 141 and Balai Lal v. Pashupathi Chatterji AIR (1917) Cal 462 the learned Judge observed:

In the present case on a cursory glance I notice that most of the points on which the dismissal of the complaint is founded are points that might have equally well been made by the Magistrate in the absence of the accused and the accused''s pleader.

The learned Judge further observed that the dismissal of the complaint appeared to him to be founded rather on the weakness of the prosecution case than on the strength of the defence. This case therefore was of no assistance to the Crown.

The case decided by Scroope J. is reported in Mahabir Baitha Vs. Emperor, . Here again the case in Harnarain Halwai v. Kariman Ahir AIR (1920) Pat 655 was neither cited before nor considered by the learned Judge. What the learned Judge decided in that case was that, although it was highly irregular to hold an enquiry in the presence of the accused and allow him to cross-examine the prosecution witnesses and adduce witnesses for the defence, he thought that in the circumstances of the case before him the irregularity, if any, did not amount to any illegality at all. At p. 713 the learned Judge pointed out that no notice was issued to the accused in that case, but as the accused lived in the village where the local enquiry had to be conducted, the Magistrate did not think it improper to examine the accused who presented himself.

It is to be noticed further that the learned Judge draws pointed attention to the fact that the accused did not produce any witnesses on his behalf, but that it was the Magistrate himself who, after examining the accused, examined a number of witnesses who lived close to the house of the complainant. The accused in that case had put forward a plea of alibi before the enquiring officer and therefore the Magistrate who was conducting the enquiry u/s 202, Criminal P.C., thought it right to complete his enquiry by examining witnesses who would support the plea of alibi of the accused. It is to be observed further that the witnesses who were examined by the Magistrate were witnesses who were examined by him in the absence of the accused and not only in the absence of the accused but in the absence of the complainant also after he returned to the sadar.

I fail to see how this case at all militates against the authoritative decision of the Division Bench of this Court in Harnarain Halwai v. Kariman Ahir AIR (1920) Pat 655. In the present case the learned Sub-divisional Officer went out of his way to examine Mr. Lines on 28th February 1939 before calling upon the complainant to substantiate his allegations. The record is silent how Mr. Lines came to be examined on that date and why the complainant''s witnesses were not examined before 21st March 1939.

But the irregularity of the procedure adopted by the learned Sub-divisional Officer is not made the subject of any application before me, because the present application is not against an order dismissing the complaint, but against an order directing the prosecution of the petitioner. Mr. Hasan Jan, who appears to oppose the rule, argued strenuously that the officer in the position of Mr. Lines could not be protected if such false and frivolous charges are levelled against the officer and therefore he submitted that it was highly expedient in the interest of public justice that the proceedings instituted u/s 476, Criminal P.C., should not be quashed. Mr. Jan''s fears are wholly unfounded, because the Legislature has itself protected the officer, if necessary, by the provisions of Section 197, Criminal P.C. That Section says:

When any person who is a Judge within the meaning of Section 19, Penal Code, or when any Magistrate or when any public servant who is not removable from his office save by or with the sanction of a Local Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the local Government.

It follows from this that the learned Subdivisional Officer had no jurisdiction to entertain the complaint so far as it was against Mr. Lines. That matter was considered by Mohamad Noor J. elaborately in Bihar State Sunni Waqf Board Vs. Syed Bashiruddin Ashraf and Others, , and since that decision the Federal Court has now authoritatively laid down that in cases like the present, cognizance could not be taken of any complaint against Mr. Lines. If this aspect of the case had been brought to the notice of the Subdivisional Officer, I think he would not have been at pains to direct the prosecution of the petitioner as in his view the gravamen of the charge levelled by the petitioner was that he had maliciously impugned a certain conduct in the discharge of his duties to a member of the highest service in the land sworn to do justice.

I have now to consider for myself whether it is expedient in the interest of public justice that the prosecution of the petitioner should be allowed to go on. This Court is ordinarily reluctant to interfere with the discretion exercised concurrently by the Courts below in a matter of this description; but when I find that there has been a fundamental misconception in understanding the procedure that ought to have been followed by the learned Subdivisional Officer who proceeded upon lines upon which he ought not to have proceeded in this case and when the provisions of Section 197, Criminal P.C., have been completely lost sight of, I consider myself free to examine the facts for myself and decide whether the petitioner should be put upon his trial. As I have observed already, the subject-matter of the present complaint is admitted.

The incident, which is disclosed in the petition of complaint of 23rd January 1939, is substantially admitted by Mr. Lines in his counter-complaint of 7th February 1939. The only difference is that Mr. Lines denies that he used the words which are also the subject of the charge in the complaint of the petitioner. But it is not denied that hot words passed between the petitioner and Mr. Lines; Mr. Lines in his anxiety to carry out his duties under the Bihar Sugar Factories Control Act was insisting that the petitioner should sign the statement which he had made to Mr. Lines.

I notice from the record that Mr. Lines took the precaution of taking in writing the statements of a number of witnesses (for instance of Sukhma Dutta Misra and Kodai Gir) in support of his allegation that Mukti Narain Gir was refusing to sign the statement when requested. The statement of the witnesses is as follows: "I have wit-nessed the Mohanthji, Mukti Narain Gir, refusing to sign his statement when requested to by you." Mr. Lines was under the impression that he could force the petitioner to sign the statement and therefore he launched a prosecution against the petitioner for his refusing to sign the statement which he had made to Mr. Lines. The learned Magistrate, who tried the case, found that refusing to sign the statement by the Mahanth did not come under the purview of any of the rules referred to by the prosecution in that case.

When this matter was brought to the notice of the learned Sessions Judge, who heard and disposed of the appeal, he says that:

It appears that the Cane Inspector had told appellant that he would be liable to prosecution if he did not sign the statement which he is alleged to have made. A trying Magistrate subsequently found that there was no obligation upon the appellant to sign his statement. Nonetheless, there is no reason whatever to believe that the Cane Inspector intended to cause appellant to do any act which he was not legally bound to do.

With respect, I do not understand the meaning of the last sentence. This was the very gravamen of the charge against the petitioner that the petitioner when required or forced to do so refused to sign the statement which he had made. Mr. Lines was annoyed at this attitude of the petitioner and threatened that he would be liable to prosecution.

In fact, he was doing his utmost to make the petitioner sign the statement. It has now been found that the law does not contemplate forcing a person to sign a statement which he is required to make under the rules of the Bihar Sugar Factories Control Act. In these circumstances the situation can easily be visualised that Mr. Lines was very nearly losing his temper upon the petitioner refusing to sign the statement which he had made to Mr. Lines. If in that situation hot words were used to by Mr. Lines or somebody else in the crowd which had assembled there, I do not see that this is any justification for the launching of the prosecution against the petitioner in the present case. The incident of that day is admitted; the circumstances which led to the heat in the situation are also admitted. The variation between the parties as to what actually happened is not of such a magnitude that I would be justified in affirming the orders of the Courts below. For these reasons I am of opinion that it is not at all expedient in the interest of public justice that the petitioner, Mukti Narain Gir, should be prosecuted for the offence u/s 211, Penal Code. I therefore quash the proceedings.