Nagalingam vs State

S.A. Kader, J.—This is an application u/s 482, Cr. P.C. to quash the proceedings in C.C. No. 169 of 1981 on the file of the Judicial II Class Magistrate, Tirukkalikundram. The accused is the Petitioner.

2 The Petitioner gave a complaint of theft against his servant, one Anbu alias Veerappan on 19th July, 1980 to the Sub Inspector of Police, Thirupporur. After the investigation, the police referred the case as false and sent a final report to the Judicial Second Class Magistrate, Tirukkalikundram. The Judicial Second Class Magistrate by his order, dated 31st December 1981 recorded the final report of the Sub Inspector of Police as false. Thereafter, the Sub Inspector of Police, Tirupporur, filed a charge-sheet against the Petitioner before the Judicial Second Class Magistrate, Tirukkalikundram, for an offence u/s 182, I.P.C. in that the Petitioner gave to the Sub Inspector of Police information which he knew to be false, in order to cause him to use his lawful power to the injury or annoyance of the said Anbu alias Veerappan. The charge-sheet has been taken on file by the Judicial Second Class Magistrate in C.C. No. 169 of 1981. The Petitioner accused raised a preliminary objection to the taking cognizance of the offence, but, the learned Judicial Second Class Magistrate, by his order, dated 3rd April, 1982 overruled the objection, and hence this petition to quash the proceedings in C.C. No. 169 of 1981 on the file of the Judicial Second Class Magistrate, Tirukkalikundram.

The charge-sheet against the Petitioner has been filed for an offence u/s 182, I.P.C. by the Sub Inspector of Police, Tirupporur, in accordance with Section 195(l)(a), Code of Criminal Procedure It is conceded by the learned Counsel for the Petitioner that the offence falls not u/s 182, but u/s 211, I.P.C and u/s 195(l)(b)(i), Crl.P.C, the offence could not be taken cognizance of except on the complaint in writing of the Judicial Second Class Magistrate, Thirukkalikundram.

The first question which arises for consideration is whether the offence complained of falls u/s 182 or 211, I.P.C. Section 182, I.P.C. deals with the offence of giving false information to a public servant intending thereby such public servant to use his lawful power to the injury or annoyance of any person. Section 211, I.P.C. deals with the offence of instituting or causing to be instituted any criminal proceeding against any person, or falsely charging any person for having committed an offence with intent to cause injury to any person knowing that there was no just or lawful ground for such proceeding or charge against that person. Section 182, I.P.C. deals with a lesser offence while Section 211, I.P.C. refers to a graver offence. If the information conveyed to the police amounts to the institution of criminal proceedings against a defined person or amounts to the falsely charging of a defined person with an offence then the person giving such information is guilty of an offence u/s 211, I.P.C. In such a case, Section 211 is and Section 182 is not the proper section under which a charge has to be framed. Section 182 read with Section 211, I.P.C. must be understood as referring to cases where the information given to the public servant falls short of amounting to an institution of criminal proceedings against a defined person and falls short of amounting to the falsely charging of a defined person with an offence as defined in the Penal Code. When a person specifically complaints that another man committed an offence and does so falsely with the object of causing injury to that person, he is guilty of making a false charge of a offence u/s 211, and not u/s 182, I.P.C. The Petitioner here in has given a complaint of theft of cash and other articles from his house against a defined person, viz., Anbu alias Veerappan who was formerly employed under him. The complaint having turned out to be false, the case falls u/s 211, I.P.C. Further, 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 as pointed out by this Court in In re Dhollia. I therefore hold that the prosecution in this case falls u/s 211, I.P.C.

Section 195(l)(b)(i) , Code of Criminal Procedure on which reliance is placed by the learned Counsel for the Petitioner runs thus:

No Court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal Code, namely, Ss. 193 to 196(both inclusive), 199, 200, 205 to 211 (both inclusive) 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 that Court, or of some other Court to which that court is subordinate.

It is urged by the learned Counsel for the Petitioner that Section 211, I.P.C. being one of the sections aforesaid, the complaint ought to be given only by the court of the Judicial Second Class Magistrate, Tirukkalikundram, who has recorded the final report of the Sub Inspector of Police and the complaint now given by the Sub Inspector of Police is incompetent. It is not in all cases that the complaint has to be given only by the Court in the case of offences mentioned in Section 195 (l)(b)(i), Code of Criminal Procedure Only when the offence is alleged to have been committed in or in relation to any proceeding in any court, that court alone is competent to give that complaint. Therefore, when an offence is not committed in or in relation to any proceeding in any court, a complaint of such an offence can be made by a private individual.

This question came up for consideration before a Bench of three learned Judges of the Supreme Court in Kamlapati Trivedi Vs. State of West Bengal, . The Appellant therein filed a complaint with the police that one Satyanarayana and five others criminally trespassed, assaulted and abused him in filthy language and committed theft of money and valuable documents of the school of which he was the secretary. The case was registered by the police under Ss. 147, 448 and 379, I.P.C. and warrants were issued for the arrest of these accused. They surrendered before the Court of the Sub Divisional Judicial Magistrate, Howrah, who released them on bail. After investigation, the police sent a report to the Sub Divisional Judicial Magistrate, u/s 173, Code of Criminal Procedure 1898 holding the Complaint to be false and included a prayer that the accused may be released from the charge. The Sub Divisional Judicial Magistrate, agreeing with the report, passed the order discharging the accused. One of the accused therein thereupon preferred a private complaint u/s 211, I.P.C. alleging that the Appellant had instituted a criminal proceeding with intent to cause injury to him and others knowing that there was no just or lawful ground and thereby caused pecuniary loss and agony to him. The Appellant moved the High Court for quashing the proceedings before the Magistrate because in the absence of a complaint in writing by the Magistrate himself, the Magistrate had no jurisdiction to take cognizance of the offence u/s 211, I.P.C. in view of the provisions of Section 195 (1) (b) (i), Code of Criminal Procedure The High Court refused to quash the proceedings. On appeal to the Supreme Court, by special leave, the majority of the Judges held that the order passed by the Sub Divisional Judicial Magistrate on the report submitted by the police u/s 173, Code of Criminal Procedure was a judicial order passed by the Magistrate in his capacity as a court and the bar of Section 195 (l)(b)(i), Code of Criminal Procedure would be attracted. This decision is on all fours with the facts of the case before me. The learned Judicial Second Class Magistrate Tirukkalikundram has passed the following order on 31st December, 1981 on the report submitted by the police u/s 173, Crl.P.C:

Proceedings of the Judicial II Class Magistrate Tirukkalikundram. Section 173, Code of Criminal Procedure dt. 31st December, 1981.

Brief statement of facts of the case and reasons for the order.

ORDER

That on 19th July, 1980 at 5 p.m. at Agaram village the above accused committed theft of cash of Rs. 6,000 Bush radio and Undial box with cash from the house of complainant when the complainant and his wife went away from the house. The police has referred the case as false. The records perused. The final report is recorded as false.

Sd. K. Manoharan Judicial Second Class Magistrate, Thirukkalikundram, dt. 31st December 1981.

The only difference between this order and the order passed by the Sub Divisional Judicial Magistrate, Howrah in the case before the Supreme Court is that in the order on hand there is no reference to the discharge of the accused. In the case before the Supreme Court the accused were arrested pending investigation and released on bail and hence there has been an order discharging them. No such occasion arose in the case on hand and that makes no difference. What we have to see is, whether the Judicial Second Class Magistrate applied his mind and whether the order passed by him is a judicial order. A perusal of the order passed by the Judicial Second class Magistrate, Thirukkalikundram would clearly show that the learned Magistrate perused the records and has recorded the final report of the police. It is therefore a judicial order passed by the Judicial Second Class Magistrate in his capacity as a court. It follows that Section 95 (l)(b) (i), Code of Criminal Procedure is attracted and in the absence of a complaint in writing of the Magistrate himself the offence u/s 211, I.P.C. could not be taken cognizance of. The proceedings have therefore to be quashed.

In the result, the petition is allowed and the proceedings in C.C. No. 169 of 1981 on the file of the Judicial Second Class Magistrate, Thirukkalikundram are quashed.