Saguni Missir vs Emperor

FazI Ali, J.—This is an application under Sections 435 and 439, Criminal P.C., by one Saguni Missir, who has been convicted u/s 211, I.P.C., and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 50. It appears that for some time past a dispute has been going between the petitioner and one Jamuna Jha with regard to a temple situated in Patna City in front of the petitioner''s house. On 17th May 1939, one Mathura, who is said to be a friend of Jamuna Jha, brought a case u/s 324 against Chuni Kahar and other persons who, according to the prosecution, belonged to the party of the petitioner. Chuni Kahar and others were at first released on bail, but subsequently their bail bonds were cancelled on 27th June 1939.

On that very day the petitioner lodged a saneha before the Assistant Sub-Inspector of Police at Khajekalan Police Station in which it is recorded that four persons, namely Jagmohan, Mathura, Parmeshwar and Khapta Kahar, had abused" him in front of his house. On 28th June, the petitioner went with his mukhtear and filed a petition before the Assistant Superintendent of Police to the effect that eight persons including the four who had been mentioned in the saneha had come on the evening of 27th June to the temple which was the subject of dispute between him and Jamuna and others, had the look of its entrance door broken and removed one mukat (Crown) from the idol installed in the temple and some other articles of worship, and also threatened to break his limbs if he intervened.

The prayer which was made in the petition was that the Assistant Superintendent of Police

may be pleased to depute some unconcerned responsible officer to institute a case and make an enquiry at the spot, as the petitioner is ready to prove his case.

The Assistant Superintendent of Police thereupon directed an enquiry and ultimately the Sub-Inspector in charge of the thana reported that the case was maliciously false. Upon this the Assistant Superintendent of Police made a complaint to the Sub-divisional Officer for prosecuting the petitioner u/s 211, I.P.C., on 12th June. On that very day the Sub-divisional Officer recorded the following order:

A complaint u/s 211, I.P.C., received. Cognizance taken. Issue warrant of arrest bailable for Rs. 500 against the accused for 27th.

It appears that on the same day the petitioner filed a protest petition before the Sub-Divisional Officer in which, after briefly narrating the incidents regarding which he had filed a petition before the Assistant Superintendent of Police and stating that he was ready to prove the case, he prayed that

the report of the Police be put up and the matter may be enquired into by any Magistrate before any order is passed on the report.

The Magistrate directed this complaint to be put up with connected papers, on the next day, and on that day he rejected the petition stating that he had already passed final orders upon the complaint of the Assistant Superintendent of Police before the petition was filed, and it was too late now to modify that order. The learned Sub-Divisional Officer further remarked that the petitioner would have a chance of proving his case in the proceeding already instituted. After that the Sub-Divisional Officer proceeded to try the petitioner and convicted him u/s 211, I.P.C.

The petitioner appealed to the Sessions Judge, but his appeal was dismissed. Both the Courts below have concurrently found that the allegations made by the petitioner in his petition to the Assistant Superintendent of Police were maliciously false and they have given good reasons in support of their finding. The only question which therefore arises upon this application is whether the conviction of the petitioner is vitiated by any error of law.

The first point of law raised by the learned Advocate appearing for the petitioner is that as the Assistant Superintendent of Police himself neither could nor did enquire into the case, no offence u/s 211, I.P.C., was committed merely by reason of the fact that the petition, dated 28th June, was filed before him.

It is not suggested that the petition made on that day did not disclose a cognizable offence, but it is contended that only the Sub-Inspector in charge of the police station could enquire into that offence and therefore though, an offence u/s 211 might have been committed if an information had been lodged before the Sub-Inspector, no such offence has been committed, because the petitioner approached the Assistant Superintendent of Police. In my opinion the contention is not sound. The offence being a cognizable one, it could be enquired into either by the police officer in charge of the police station or by any officer to whom he was subordinate and within whose jurisdiction the offence was said to have been committed.

The Assistant Superintendent of Police did take action on this petition and directed an enquiry, and it cannot be said that he was not in a position to get the offender punished. It also appears on the evidence in the case that a regular police case was instituted upon the petitioner''s application to the Assistant Superintendent of Police and the persons named as accused in that petition were arrested and subsequently released on bail. Thus, the first contention raised on behalf of the petitioner must fail.

The second contention is that the petitioner having filed a protest petition, which amounted to be a complaint before the Magistrate, the latter had no jurisdiction to order his prosecution without disposing of his complaint. Both the Courts below have however pointed out that the protest petition was filed after the Magistrate had taken cognizance of the case u/s 211, I.P.C., and therefore the procedure of the Magistrate was not open to any objection. This view is fully supported by the decision of this Court in Daroga Mahto v. Emperor AIR (1934) Pat 573.

In my opinion there is no ground for interfering with the conviction of the petitioner, and in view of the fact that the petitioner has in this false case implicated not only Jamuna with whom he had a dispute but also most of the persons who had figured as prosecution witnesses in the criminal case brought by Mathura against Chuni Kahar and others, I consider that the sentence which has been passed on him is by no means severe. I would therefore dismiss this application.

Meredith, J.

I agree.