Sanghvi Sukhraj vs Madhanraj and Other

Natarajan, J.—Both these petitions have been filed by the same Petitioner. The two petitions are connected and they raise allied questions of

law for consideration. Hence, they are being disposed of by a common order. In Crl.M.P. No. 5251 of 1980, the Petitioner prays for quashing of

the proceedings in C.C. No. 9424 of 1980 on the file-of the XIV Metropolitan Magistrate, Madras, filed by the 1st Respondent therein. In Crl

M.P. No. 5117 of 1981 the Petitioner seeks quashing of the proceedings in M.P. No. 586 of 1981 on the file of the XVI Metropolitan

Magistrate, Madras.

The facts which require mention are under: The Petitioner gave a complaint against two persons, viz., Madanlal Senigaraha and Sohanraj

Sonigara, to the Deputy Commissioner of Police, Crime, Madras, on 20th July, 1978, alleging that in respect of a partnership business carried on

by him and his brother with the above-mentioned persons, the latter had committed misappropriation: of partnership, money. The police authorities

registered a case and investigated the report and, in the course of investigation, arrested the two persons. Subsequently, they were released on bail

by the Second Additional Sessions Judge, Madras. On fuller investigation of the case the police authorities came to the conclusion that the dispute

was of a civil nature and therefore, they referred the complaint of the Petitioner as mistake of fact and sent a report to that effect to the XVI

Metropolitan Magistrate. Thereafter the first Respondent in Crl. M.P. No. 5251 of 1980 filed a private complaint against the Petitioner herein u/s

190, Code of Criminal Procedure, for offences punishable under Sections 211 and 500, I.P.C., on the ground that the report given by the

Petitioner to the police authorities contained false charges made with a view to defame him and his brother. The Magistrate took the complaint on

file in C.C. No. 9424 of 1980 under Sections 211 and 500, I.P.C., and issued process to the Petitioner. It is at that stage of matters, the Petitioner

has come forward to this Court with this petition. His contention is that in respect of an offence u/s 211, I.P.C., Section 195, Code of Criminal

Procedure, enjoins that no Court shall take cognizance of a case unless the complaint is made in writing by the Court before which the offence was

committed, or some other Court to which that Court is subordinate.

In the other petition, Crl.M.P. No. 5117 of 1981, the 1st Respondent Sohanraj (brother of the complainant in the first petition) filed a petition in

MP. No. 586 of 1981 praying the XVI Metropolitan Magistrate, to hold an enquiry against the Petitioner u/s 340, Code of Criminal Procedure

and then file a complaint against the Petitioner if the Court was satisfied that he bad committed an offence punishable u/s 211, I.P.C. In order to

have those proceedings quashed, the Petitioner has filed Crl.M.P. No 5117 of 1981.

Mr. K.A. Iagumalai, learned Counsel for the Petitioner states that if any complaint is to be made in respect of an offence punishable u/s 211,

I.P.C. then the mandate contained in Section 195, Code of Criminal Procedure, must be respected and since, in this case, the complaint has not

been filed by a Court, the complaint filed by a private party is not maintainable. His further argument is that the complainant cannot seek to get over

the embargo contained in Section 195, Code of Criminal Procedure by merely tacking on another section, to wit, Section 500, I.P.C. in this case.

According to the learned Counsel, the offence of defamation is alleged to have been committed by reason of the commission of an offence u/s 211,

I.P.C and, as such, the complaint has no legs to stand independently, in so far as the alleged commission of the offence u/s 500, I.P.C. is

concerned. In the other case, Mr. Alagamalai''s contention is that whit the complainant cannot achieve directly, i.e., by filing a complaint for an

offence u/s 211, I.P.C., by linking another offence, he cannot seek to achieve indirectly filing a petition before the trial Magistrate for an enquiry

being held u/s 340, Code of Criminal Procedure, and the Court taking action thereafter against the offender by the Court itself filing a complaint.

In support of his contentions Mr. Alagumalal cites three decisions. The first case is Profulla Kumar Ghose and Another Vs. Harendra Nath

Chatterjee, . In that case, a party, who had been wrongly accused of having committed an offence u/s 409, I.P.C. applied to the Magistrate for

sanction u/s 195, Code of Criminal Procedure to prosecute the opposite party u/s 211, I.P.C. or, in the alternative, to issue process form offence

u/s 500. I.P.C. The Magistrate refused to grant sanction u/s 195, Code of Criminal Procedure, but directed issue of process u/s 500, I.P.C. The

accused took the matter to the High Court and the Calcutta High Court held that once the Magistrate had: refused to grant sanction for prosecution

u/s 211, I.P.C he was not entitled to issue process u/s 500, I.P.C. because the Court held that when on the same facts an application for sanction

to prosecute u/s 211, I.P.C., had been rejected, the accused could not be proceeded u/s 500, or Section 500 read with Section 109, I.P.C.

The second case is Durgacharan Naik and Others Vs. State of Orissa, . The Supreme Court observed in that case as follows:

...but we must point out that the provisions of Section 195 cannot be evaded by escorting to devices or camouflages. For instance, the provisions

of Section 195 cannot be evaded by resorting to devices or camouflages. For instance, the provisions of the section cannot be evaded by the

device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the

ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the

Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195. Code of Criminal

Procedure Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution

for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it.

Even the pronouncement of the Supreme Court in the above case cannot lend support to the contention of Mr. Alagumalai, because the facts

herein are different. But before coming to the facts, I can appositely refer to the decision that was rendered in the above-said case. Certain persons

were charged for offences u/s 143 read with Section 402, I.P.C. and Sections 186 and 353, I.P.C The trial Court acquitted them. But on appeal

the High Court convicted them u/s 353, I.P.C. It however acquitted them u/s 143 read with Section 402, I.P.C. and further held that the

prosecution u/s 186, I.P.C. was barred by Section 195, Code of Criminal Procedure, because a complaint in writing hid not been made by a

public servant. The convicted persons took the matter in appeal to the Supreme Court and the argument was that since the High Court had held

that as Section 196, I.P.C. - acted as a bar to a prosecution u/s 186, I.P.C., it must have likewise held that even a prosecution u/s 353, I.P.C

would not lie. The Supreme Court did not accept this contention and held that Sections 186 and 353, I.P.C., relate to two distinct offences and

Section 353 is not referred to in Section 195, Code of Criminal Procedure and hence, there was no bar for the accused being tried and convicted

for a distinct offense disclosed by the same set of facts if that distinct offence was not within the ambit of Section 195, Code of Criminal Procedure

Therefore, what is to be seen is whether the two offences complained of are integrated or distinct and whether one of the offences falls outside the

ambit of Section 195, Code of Criminal Procedure.

The third case cited is Kamlapati Trivedi Vs. State of West Bengal, Therein an aggrieved person filed a complaint against another for offences

u/s 211 and 182, I.P.C. The Court took the case on file only in respect of an offence u/s 211, I.P.C. and issued process to the accused. The

accused moved the High Court for quashing the proceedings on the ground that the Magistrate cannot take cognizance of the case in violation of

the provisions of Section 195 (1)(b), Code of Criminal Procedure. The High Court dismissed that petition for quashing and hence, the accused

took the matter to the Supreme Court. The Supreme Court held that the complaint against the accused was in respect an offence alleged to have

been committed in relation to a proceeding in Court and as such, the Magistrate, while taking cognizance of the case, had acted in contravention of

the bar contained in Clause (b) of Section 195 (1) as there was no complaint in writing either of the Magistrate or a Superior Court. Even this

decision is not of any relevance here, because the complaint now in question has not been t taken on file u/s 211, I.P.C. but only u/s 500, I.P.C.

and for taking cognizance of such an offence, the filing of the complaint by a court is not a prerequisite. Hence, none of the authorities cited by Mr.

Alagumalai really lends support to this contention.

It has to be pointed out that Section 211, occurs in Chapter XXI, I.P.C. under the heading ''of false evidence and offences against public

justice.'' On the other hand Ss. 499 and 500 occur in Chapter XXI under the heading of defamation, While the former offence related to a public

wrong, the latter offence relates to a private injury. Section 211, refers to a person instituting or causing to be instituted any criminal proceeding

against a person or falsely charging a person with having committed an offence, knowing that there is no just or lawful ground for such proceeding

or charge against that person, with intent to cause injury to that person. But in so far as Section 499, I.P.C. is concerned, it contemplates ""a person

making or publishing any imputation concerning any person by words either spoken or intended to be read or by signs, or by visible

representations intending to harm or knowing or having reason to believe that such imputation will harm the reputation of that person."" Therefore,

the mens rea at committing an offence u/s 211 and Section 499, I.P.C., is quite different, though there may be an apparent area of over-lapping.

Such being the position, it cannot be said in this case that the offence complained of will fall only u/s 211, I.P.C. and that it does not have a distinct

character severable from the offence u/s 211, I.P.C. and therefore, de hors Section 211, a complaint cannot be filed for the offence u/s 499,

I.P.C. The position in law is that if on the same set of facts, two distinct offences are committed, one falling within the ambit of Section 195, Code

of Criminal Procedure, and the other falling outside the ambit, then there can be no bar for a person filing a private complaint in respect of the

commission of that offence, which falls outside the ambit of Section 195, Code of Criminal Procedure. This position of law has been laid down by

this Court as well as by the Calcutta High Court and the Federal Court and Supreme Court in the following cases. As early as in 1921, a Full

Bench of the Calcutta High Court has held in Smt. Nilima Ghosh and Another Vs. Prakriti Bhusan Mitter, as follows:

Now, the maker of a single statement may be guilty of two distinct offences, one u/s 211 (which is an offence against public justice) and the other

an offence u/s 499 wherein the personal, element largely predominates. The Legislature has provided, in the Code of Criminal Procedure that the

sanction of the Court, where the offence is committed, is essential in the former case for the institution of criminal proceedings. In the latter case the

Legislature has omitted to make a similar provision. This diversity, for aught we know, may have been deliberate, and plainly affords no reason

why the Court should struggle to hold that the statement does not fall within the mischief of the rule embodied in Section 499. The two offences are

fundamentally distinct in nature, as is patent from the fact that the former is made non-compoundable, while the latter remains compoundable; in the

former case for the initiation of the proceedings, the Legislature requires the sanction of the Court u/s 195 of the Code of Criminal Procedure in the

latter case, cognizance can be taken of the offence only upon a complaint made by the person aggrieved u/s 198, Code of Criminal Procedure.

A Full Bench of this Court had to consider in Narayana Ayyar v. Veerappa Pillai 1958 M.W.N. 876 (F.B.) the question whether the alleged

defamer, who had given false evidence in a court could be prosecuted u/s 499, I.P.C. without a complaint by the Court before whom he gave

evidence. After an exhaustive review of the decided cases of the different High Courts in India, the Full Bench held that in such cases, it was open

to the party defamed to take proceedings u/s 499, I.P.C. without the Court filing a complaint in accordance with the provisions laid down in

Section 195, Code of Criminal Procedure. The Court held that if the offences of giving false evidence in a judicial proceeding and defamation do

not belong to the same genus, but are distinct and separate in their characteristics and ingredients, it was difficult to perceive any serious inhibition

by the Code of Criminal Procedure, for initiation and trial of one of these offences independently of anterior resort to fulfilling the conditions

necessary to commence a prosecution for the other.

The Federal Court also had to consider a somewhat similar question as the one on hand in Hari Ram Singh v. The Crown 1939 F.C.R. 159.

The Appellant in that case was charged with offences under Sections 409 and 477-A, I.P.C The offence u/s 377-A could not be taken cognizance

of without the previous consent of the Governor u/s 270(1) of the Constitution Act, while the consent of the Governor was not required for the

institution of proceedings u/s 409, I.P.C. The charge was that the accused dishonestly misappropriated or converted to his own advantage certain

medicines entrusted to him in his official capacity as a Sub-Assistant Surgeon in the Punjab Provincial Subordinate Medical Service. He was

further charged that being a public servant, he willfully and with intent to defraud omitted to record certain entries in a stock book of medicines

belonging to the hospital where he was employed and in his possession. Proceedings u/s 477-A were quashed by the Federal Court for want of

jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the Sessions Judge for hearing on merits as

regards the charge u/s 409, I.P.C. and the order of acquittal passed by the Sessions Judge under that charge was set aside. The distinct offences

having been committed in the same transaction, one, an offence of misappropriation u/s 409, I.P.C. and the other an offence u/s 477-A, I.P.C.,

which required the sanction of the Governor, the circumstances that cognizance could not be taken of the latter offence without such consent was

not considered a bar to the trial of the Appellant with respect of the offence u/s 409, I.P.C.

All the above three decisions were considered by the Supreme Court in Basir-ul-huq and Others Vs. The State of West Bengal, and were

approved. In the Supreme Court case, the accused lodged information at a police station that X had beaten and throttled his mother to death and

when the funeral pyre was in flames he-entered the cremation ground with the police. The dead body was examined and the complaint was found

to be false. On the complaint of X, the accused was charged with offences u/s 297, I.P.C. (trespass to wound religious feelings) and Section 500,

I.P.C., (defamation). It was contended that as the complaint disclosed offences under Sections 182 and 211, I.P.C. the Court could not take

cognizance of the case except on a complaint by the proper authority u/s 195, Code of Criminal Procedure. The Supreme Court held that the facts

which constituted the offence u/s 297 were distinct from those which constituted an offence u/s 152 as the act of trespass was alleged to have,

been committed after the making of the false report, so Section 195 was no bar to the trial of charge u/s 207, and as regards the charge u/s 500,

where the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual,

the latter is not debarred by the provisions of Section 195, Code of Criminal Procedure from seeking redress for the offence committed against

him.

In view of the decisions in all these cases, the Petitioner cannot be heard to say that the trial Magistrate cannot take cognizance of the offence

u/s 500. I.P.C. in as-much as the commission of an offence u/s 21, I.P.C. has also been alleged and for taking cognizance of an offence u/s 211,

I.P.C. the complaint must hive been filed by the court in which the offence was committed. Therefore, the petition for quashing the proceedings

does not lie and has to be dismissed.

As regards Crl.M.P. 5117 of 1981, the contention of the Petitioner that the complainant is not entitled to the a petition u/s 340, Code of

Criminal Procedure, is wholly untenable. The very wording of Section 340 is as follows:

Procedure in cases mentioned in Section 195 (1) -When, upon an application made to it in this behalf or otherwise, any Court is of opinion

that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section

195....

Therefore, the section itself envisages a Court holding an enquiry u/s 340, Code of Criminal Procedure, either suo moto or upon an application

made by a party. As such,'' the Petitioner can participate in the inquiry u/s 340, Code of Criminal Procedure, and put forth his case that a

complaint u/s 195 (1)(b) is not called for. If he fails before the Magistrate, he is not left without a remedy, for he can file an appeal u/s 341, Code

of Criminal Procedure, and canvass the correctness of the order passed by the Magistrate u/s 340, Code of Criminal Procedure. The Petitioner

has, therefore, no right to contend that the complainant cannot move the Court to hold an enquiry u/s 340, Code of Criminal Procedure, on that

ground this petition has to fail.

In the result both the petitions will stand dismissed.