Subhag Ahir vs Emperor

Macpherson, J.—Subhag Ahir, who has been convicted by the Sessions Judge of Shahabad, disagreeing with the assessors, u/s 211, I.P.C., and sentenced to rigorous imprisonment for three years and a fine of Rs. 100, has appealed to this Court against the conviction and sentence.

On 11th July last at 11 a.m. Ghurbari Ahir of Gobinddih went to Piro Police Station with his son Chandradip Ahir, aged twenty-eight, and lodged information charging the present appellant with theft that morning at 8 a.m. of a hand-note and a stamp paper tied in a gamcha while the informant Subhag and another were going to the Lala to get a mortgage written. Chandradip Ahir is chaukidar of Gobinddih which itself is two miles from the police station.

At 11-30 a.m. the present appellant arrived at the thana accompanied by his son Nandkishore aged six and lodged information that about 6 a.m. that morning in the informant''s baharghara Chandradip, chaukidar, had committed on Nandkishore the offence punishable u/s 377, I. P. C.

The police officer who recorded the information investigated both charges, sent up the present appellant on the charge of theft, pronounced the charge u/s 377 to be false and preferred a complaint to the Magistrate against the appellant of offences under Sections 211 and 182, I. P.C. On the police report the appellant was placed on his trial on the charge of theft. On the complaint of the Sub-Inspector, the Subdivisional Magistrate on 31st July also summoned him u/s 182, I. P. C, for 14th August. On 14th August, Subhag Ahir applied that the case against him u/s 182 be postponed until the charge of theft should be disposed of, which prayer the Subdivisional Magistrate granted. The appellant was convicted of the charge of theft; but in appeal the Sessions Judge while incidentally pronouncing the charge u/s 377 to be false acquitted the appellant because he was not satisfied that the case of theft was true.

The charge of theft having been disposed of, the case u/s 182 was taken up by the Subivisional Magistrate. Thereupon the appellant filed on 23rd December a petition before the Sub-divisional Magistrate in which he asserted that the charge which he had made, was true, offered to prove it and asked for summons on the accused, or that the police be directed to forward a charge sheet against Chandradip, chaukidar. The case was not fixed for that date and the Magistrate directed the application to be put up with the record. After being tossed about with reprehensible delay, the application was eventually on or after 11th January without further order of the Subdivisional Magistrate placed before Babu Akhileshwar Prasad to whom the case u/s 182 had been transferred on 5th January and who appears to have ignored its existence, if he ever knew of it. Babu Akhileshwar Prasad committed the case to the Sessions on a charge u/s 211 and the Sessions Judge convicted and sentenced the appellant as already stated.

Mr. Cammiade for the appellant submits, first, that the conviction is wrong on the merits, and secondly and more confidently, that the trial at the Sessions on a charge u/s 211 was without jurisdiction.

On the first point we did not consider it necessary to call upon the Assistant Government Advocate; but the matter is not of serious importance in view of the decision on the second submission.

On the question of jurisdiction Mr. Cammiade urges that in the circumstances of the case Section AIR 1925 Pat. 717 (b), Criminal P.C., prohibits a Court from taking cognizance of the offence u/s 211 except on the complaint in writing of the Court of the Subdivisional Magistrate or some Court to which his Court is subordinate inasmuch as the alleged offence u/s 211 was, on the decisions, committed in relation to the petition of complaint filed by the appellant on 23rd December in the Court of the Subdivisional Magistrate.

Now if the complaint of the Sub-Inspector of Police be considered, it is manifest that it removed the bar u/s AIR 1925 Pat. 717 (a) so far as the offence u/s 182 was concerned, and also that inasmuch as there is nothing in law to prevent the Sub-Inspector from making a complaint of an offence u/s 211, I. P.C. and to prevent the Court from taking cognizance of that offence on such a complaint, the Sub divisional Magistrate had jurisdiction to take cognizance both u/s 182 and u/s 211; but actually whether by reason of an apprehension that the case fell only u/s 182 between which and Section 211 there is, as was pointed out in Caroga Gape v. Emperor AIR 1925 Pat. 717, a distinction in law, he expressly took cognizance u/s 182 only. If he had also taken cognizance of the offence u/s 211, nothing that could happen subsequently could bring into operation the provisions of Section 195 AIR 1925 Pat. 717 (b) so as to deprive him of his jurisdiction to proceed with the complaint of that offence in accordance with law: Parma and v. Emperor AIR 1930 Pat. 30 and Gonour Singh Vs. Emperor, and numerous other decisions.

A person against whom a complaint of an offence mentioned in Section 195 AIR 1925 Pat. 717 is made, is no more entitled to an opportunity to show cause why the complaint should not be made than a person against whom a complaint of any other offence is made: Parma and v. Emperor AIR 1930 Pat. 30. But in point of fact when the petitioner filed his petition of 23rd December there was no case u/s 211 pending against him.

Accordingly even if this petition was, as was pointed out in similar circumstances in Gonour Singh Vs. Emperor, , merely one showing cause against his conviction so far as concerns the offence u/s 182 of which cognizance has already been taken, yet it was, upon the decisions of this Court, so far as Section 211 is concerned, a complaint of an offence, that is to say, the allegation made in writing to a Magistrate with a view to his taking action under the Code of Criminal Procedure, that Handrail Hair had committed an offence, and therefore a proceeding in a Court which brought into operation the provisions of Section 195 AIR 1925 Pat. 717 (b) where the wide expression used is "committed... in relation to any proceeding in any Court."

In cases of this class the question of the date when cognizance is taken of the police complaint is always important. If cognizance has been taken of the offence u/s 211 on the complaint of the police officer, before the informant, by an application to the Magistrate has traversed the police report, repeated his charge and asked for a judicial investigation, Section 195 AIR 1925 Pat. 717 (b) does not become applicable; but where no cognizance has been taken by the Magistrate of the offence u/s 211, the application of the informant, if within the definition of a complaint, does bring Section 195 AIR 1925 Pat. 717 (b) into operation. This is the view accepted by this Court in Shaikh Muhammad Yassin Vs. Emperor, and Caroga Gape v. Emperor AIR 1925 Pat. 717 and other cases which follow them. In both the cases cited the protest complaint of the informant preceded the taking of cognizance of the offence u/s 211 upon the formal complaint of the police officer. It was the same in the present instance. In none of the instances was a case u/s 211 against the informant pending when the protest complaint was filed by him.

It makes no difference that in the present instance complaint of an offence u/s 211 had been filed the Magistrate had failed to take cognizance unless indeed such failure can be said to imply a dismissal of the complaint u/s 211 in which case the difference, if any, would favor the appellant. Thus as a complaint of the offence in respect of the falseness of which the informant has been prosecuted u/s 211 was pending disposal in the Sub divisional Magistrate''s Court the offence punishable u/s 211 though not alleged to have been committed in a proceeding in a Court must on the ruling cited be held to be in relation to such a proceeding that is, to the appellant''s complaint of 23rd December 1930.

Accordingly u/s 195 AIR 1925 Pat. 717 (b) the Court of Babul Akhileshwar Prasad (even if that Magistrate had been, as is not alleged, empowered to take cognizance upon the complaint) was incompetent to take cognizance of the offence u/s 211 alleged to have been committed by the appellant or to commit him to the Sessions on a charge of that offence and the Sessions trial also was without jurisdiction. It follows that the conviction and sentence of the appellant must be set aside and he is directed to be released from bail.

The complaint u/s 182 still remains for decision by the competent Court which is that of the successor of Babu Akhileshwar Prasad. Should there be a conviction, the punishment, which has already been undergone by the appellant, may well be taken into consideration.

Scroope, J.

I agree.