State vs Nandlal Karunashanker and Another

This is an appeal by the Government against the order of acquittal of the two accused, both of whom had been charged with the offences u/s 419 read with Section 611 and with the offence u/s 182, Penal Code.

The prosecution case was that there was a girl called Madhuri, who was of a tender age, and certain monies were lying to her credit in the Bombay High Court. An application was made there for the marriage of that girl, and for sanction for the necessary amount for the marriage. The Bombay High Court required a certificate about the marriageable age of the girl, and two persons, i.e., the mother of the girl and a neighbour of hers applied to the Bhavnagar Court for such a certificate to be produced in the Bombay High Court. At the hearing, two girls were brought before the Court, the real girl Madhuri and also other girl called Madhukanta, who was somewhat older than Madhuri. The prosecution case was that these two persons represented Madhukanta to be Madhuri in order to induce the Magistrate to give certificate about her marriageable age. It appears, that some time before, the same Madhuri had appeared before the Magistrate in Anr. matter, and after the hearing of the application was over, he felt some doubt as to the identity of Madhukanta, who was represented to be Madhuri. Thereafter it came to light that the girl produced before the Magistrate was not Madhuri but Madhukanta. He thereupon made a complaint to the Police stating therein all the facts which had taken place, and for proper legal steps to be taken against the two applicants. Thereafter the prosecution filed the complaint out of which this matter arises, and the two applicants were charged with the offence of attempting to cheat the Magistrate, and also for the offence u/s 182, Penal Code, i.e., giving false information with intent to cause a public servant to use his lawful power, to the injury of Anr. person. The Magistrate before whom the trial took place convicted both the accused of both the offences, and sentenced them to six months'' rigorous imprisonment for the first offence, and three months'' rigorous imprisonment for the second offence. Against those convictions and sentences, the two accused filed an appeal to the District Judge, Gohilwad Division. The learned Sessions Judge was of the opinion that the conviction of the accused for both the offences was erroneous in law, and on that ground set aside the convictions as well as the sentences.

As regards the offence of attempting to sheat u/s 419 read with Section 511, Penal Code, we are in agreement with the learned appellate Judge that the ingredients of Section 415, Penal Code, have not been made out in this case. The prosecution case was that it was the Magistrate who was cheated and on account of such cheating, there would be harm to his mind, body or reputation, but it is difficult to see how even if there was a misrepresentation by the two accused, the Magistrate himself would suffer any harm in mind, body or reputation. He may believe in good faith that the girl produced before him was Madhuri and not Madhukanta, and even subsequently it turns out that she was not, there was no question of his suffering any harm in mind, body or reputation. All that can be said is that in popular parlance he was cheated but he was not cheated in the legal sense of term. The learned appellate Judge has relied on a decision of the Lahore High Court reported in Mahomed Bakhsh v. Emperor AIR 1941 Lah. 460 and it applies to the facts of the present case. We therefore, confirm the order of acquittal passed by the learned Appellate Judge as regards the first offence.

As regards the second offence u/s 182, Penal Code, there is no doubt that on the facts proved an offence under that section has been made out. There has been a misrepresentation to a public servant about the identity of the girl, and the other ingredients of the section have also been satisfied. The learned appellate Judge has, however, set aside the conviction on the ground that a charge for an offence u/s 182 requires a complaint on the part of the public servant u/s 195(1), Criminal P.C., and no such complaint has been filed by the Magistrate u/s 182. All that has been done is that he has been examined as a witness. It is quite true that Section 195(1), Criminal P.C. does say that no Court shall take cognizance of any offence punishable u/s 182, among Ors. , except on the complaint in writing of the public servant concerned, and it is also true that no formal complaint has been filed by the public servant for an offence u/s 182, in the sense that the section itself has not been mentioned in the complaint, which the Magistrate sent to the Police. The learned Appellate Judge seems to rely on the fact that Section 182 has not been mentioned in the complaint sent by the Magistrate Mr. Mankad, but we do not think that the word ''complaint'' is to be understood here in the strict sense of the term. It is used in a general sense. All that is necessary is that it mast appear that the public servant applied his mind to the facts of the case and thought it necessary to send the case to the Police for investigation for taking criminal proceedings. Mr. Mankad did apply his mind to the facts of the case, and he did send the report to the Police for starting criminal proceedings against the two persons.

In a decision of the Allahabad High Court reported in Barkat and Another Vs. Emperor, , the word ''complaint'' has been construed in a general sense. The learned Judge observes there:

It seems to me that the intention of Section 195, Criminal P.C. is only that the Magistrate should not punish any person except at the instance of the Public Officer concerned, or of his superior, and I do not think that the term ''complaint'' is used in the technical sense in which it is denned in Section 4. At the time when the Magistrate convicted the accused in this case, he had before him the written report of the Amin made to the Police and the evidence of the Amin who had been called as a witness. It is obvious that the Amin intended that these people should be punished and that the prosecution was not really at the instance of some other person.

These remarks apply exactly to the facts of the present case. Mr. Mankad is in the same position as was the Amin in that case, and he did send a report in a form of a complaint to the Police, and just as the Amin was examined in that case, Mr. Mankad has been examined in this case.

We agree with the above observations made in the Allahabad Court and are, therefore, of the opinion that the provisions of Section 195(1) have been substantially satisfied in this case, and that there is no bar to the trial of the accused for the offence u/s 182, Penal Code. On the merits there is no doubt that they are guilty of the offence under that section. We, therefore, set aside the order of the learned Appellate Judge as regards the acquittal of the accused for this offence, and restore the order of conviction as well as sentence of three months'' rigorous imprisonment on each of the accused, passed by the trying Magistrate. The appeal is, therefore, dismissed as regards the first offence and allowed for the second offence.