T.K. Subramanian vs Chidambaranothan

Sathar Sayeed, J.—Against the order of the Chief Judicial Magistrate, Salem, dated 20th December, 1978 In discharging the respondent

herein under S. 245(l), Crl. P.C, the above criminal revision hat been filed.

It appears from the facts of the case that the respondent was the Sub-Inspector of Police, Mettur. He filed C.C. 839/75 against the petitioner

and others under Ss. 506(11) and 148,I.P.C. alleging that the petitioner herein attempted to beat the respondent with a type lever of a motor car

by throwing it on the respondent and that the petitioner had also instigated his men to finish the respondent. C.C. No. 839/75 filed by the

respondent herein was hotly contested by the petitioner herein, with the result, the petitioner was acquitted on 23rd April, 1976. Thereafter, the

petitioner filed a private complaint against the respondent under SS. 190, 211,I.P.C. before the Judicial First Class Magistrate, Salem which was

subsequently transferred to the Chief Judicial Magistrate''s Court and numbered as C.C. No. 131/1978.

The petitioner in the aforesaid C.C. 131/78 contended that the respondent was a Sub-Inspector of Police, that he had enmity and bitter feelings

towards him and that, because of that enmity, a criminal complaint was filed against the petitioner by the respondent on 3rd April, 1975 under SS.

147, 353 and 506 (II), I.P.C. The said case was numbered as C.C.839/75 in which the petitioner was acquitted. The petitioner further averred

that the respondent had leveled a false charge of a cognizable offence against the petitioner knowing fully well that it was a false charge, that the

respondent prosecuted the petitioner with intent to cause him injury and that, by leveling such false charges, the petitioner''s status and reputation

was damaged. The petitioner further averred, that the respondent, willfully and with the knowledge that there was no just ground for such a charge,

had foisted a false case against him, which ended in his acquittal. Under the circumstances, the petitioner contended that the respondent herein has

committed an offence under S. 211, I.P.C. and prayed that suitable action be taken against the respondent. A sworn statement of the petitioner

was also recorded by the trial Court and the complaint was taken on file under S. 211, I.P.C. and the case was posted to 29th August, 1978.

The respondent, on receipt of notice, filed an application, Crl. M.P.797/78 regarding the maintainability of the case against him. He contended

that the petitioner tight to have filed a complaint against the respondent, on the allegation alleged, within three years from the date of knowledge of

the falsity of the complaint, that the petitioner, having kept quiet for a period of more than three years, cannot now file the present complaint against

the respondent for the alleged false charge under S. 211, I.P.C. and, hence, the case filed against the respondent by the petitioner after the lapse of

so many years was a motivated one and is statutorily barred and has to be dismissed. The respondent further contended in his petition that, In

regard to the alleged false charge which is alleged to have been made in or in relation to the proceedings in a court, a complaint from the

Magistrate is necessary to prosecute the respondent and that, in the absence of such complaint from the Magistrate to prosecute the respondent,

no cognizance of any complaint leveled by the petitioner can be taken against the respondent under S. 195(L), Crl. P.C. It was further averred by

the respondent that there is no specific finding by the Magistrate in his judgment in C.C. 839/75 that the respondent has falsely charged the

petitioner, but, on the contrary, the acquittal of the petitioner in the aforesaid ease was based on the ground that the case against the petitioner was

not proved by letting in sufficient evidence. Thus, the respondent prayed for the dismissal of the complaint.

The Chief Judicial Magistrate, on going through the complaint and the preliminary objections raised by the respondent regarding the

maintainability of the case and after discussing the facts of the case and hearing the arguments of the respective counsel, by his concluding portion

of the order, dt. 20th December, 1978 has observed that:

In view of my prior findings, the petition is allowed and this complaint is ordered to be dismissed and the accused is discharged under S. 245(l).

Crl. P.C.

It is against this order of discharge of the respondent by the Chief Judicial Magistrate, the above criminal revision has been filed.

The short question that arises for consideration in this revision petition is whether the complaint filed by the petitioner under S. 190, Crl. P.C.

seeking action against the respondent under S. 211,I.P.C. is maintainable and whether the discharge of the respondent by the Magistrate is legal.

Mr. O.V. Balaswamy, learned counsel appearing for the petitioner, contends before me that the court, having taken cognizance of the complaint

filed by the petitioner against the respondent under S. 190, Crl. P.C. and having issued notice to the respondent, was obliged to proceed with the

case under S. 244, Crl. P.C. The learned counsel contends that the trial court ought to have proceeded to hear the prosecution case and should

have taken evidence that might have been adduced on behalf of the petitioner. If the trial Court finds that, on the evidence adduced by the

petitioner under S. 244, Crl. P.C. no case has been made out against the respondent to warrant his conviction, the trial Court could have

discharged the respondent. But, in this case, the trial Court, without following the procedure laid down under SS. 244 and 245, Crl. P.C, has

erred in discharging the respondent on the preliminary objection raised by him, and hence, the counsel contends that the discharge of the

respondent by the trial Court is illegal and contrary to law. The learned counsel appearing for the petitioner further contends that when a complaint

under S. 190, Crl. P.C. is taken on file by the trial Court, in and by which the petitioner seeks punishment of the respondent under S. 211, I.P.C.,

the trial Court is duty bound to take evidence of the prosecution witnesses, particularly that of the petitioner, and, that, in the absence of taking any

evidence by the trial Court, after the appearance of the accused/ respondent before the trial Court, the discharge of the respondent is illegal and

contrary to law. In other words, the contention of the counsel is that, when once a complaint is taken on file by the trial Court and the Court having

taken cognizance of the same, it erred in discharging the accused/ respondent, without recording any evidence under S. 245 (1), Crl. P.C.

In Marutha Vs. Rajagopal and Others, the question of discharging the accused without recording any evidence under S. 253(l), Crl. P.C. came

up for consideration before Somasundaram, J. The short facts of that case were that the Tahsildar, the Revenue Inspector, the Village Headman

and other Revenue Officials came to the complainant''s house, entered inside and forcibly removed some bags of paddy. The Tahsildar caught hold

of the complainant''s ''thulasimani'' and pushed him down. Similarly, the wife of the complainant was pushed down by the Revenue Inspector. The

complainant filed a complaint against the revenue officials under Ss. 147, 447 and 395, I.P.C. before the District Magistrate, Tiruchirapalli, who

took the case on the file under Ss. 147 and 352, I.P.C. and later transferred it to the file of the Sub-Magistrate, Jayankondam, for disposal. The

revenue officials, who figured as accused/respondents, took out a preliminary objection to the filing of the case against them under S. 15 of the

Essential Commodities Act by contending that they removed the bags of paddy in the discharge of their official duty and in good faith, and that the

prosecution against them was barred. The learned Sub-Magistrate, who heard the case, discharged all the revenue officials under 8.253(1), Crl.

P.C. (Act V of 1898). The question was whether the acts done by the revenue officials were in discharge of their duties and whether sanction

under S. 197 (1), Crl. P.C. to file the case against them was necessary. Somasundaram, J., on the facts of the case, held that,

There was no judicial evidence before him (the Magistrate, to arrive at conclusion that the acts stated in the complaint were not done by the

respondents and that the complainant had come forward with these allegations falsely without any basis. That was a matter of evidence. Thus

without recording any evidences, he (the Magistrate) should not have discharged the accused under S. 253 (1) of the Code.

Relying on the basis of this decision, the learned counsel for the petitioner herein contends that, in the present case, though the Magistrate has

taken cognizance of the present complaint, the Magistrate, without recording any evidence as contemplated under Ss. 244 and 245, Crl. P.C.

erred in law in discharging the respondent.

Mr. K. Alagumalai, learned counsel appearing for the respondent, contends that the Magistrate, in discharging the accused on the preliminary

objection raised by him, has not committed any error as contended by the learned counsel appearing for the petitioner. The counsel contend! that,

when an objection is raised with respect to the maintainability of the case against the respondent at a preliminary stage, the question of recording

evidence under Ss. 244 and 245, Crl. P.C. will not arise and come into the picture at all. According the counsel, the present case arises under S.

195, Crl. P.C. and, under the circumstances, it is contended that, when the trial Court is satisfied with the tenability of the objection raised by

respondent that the complaint ought not to have been taken cognizance of by the Court, the learned Magistrate is empowered to discharge the

accused and that by such discharge the Magistrate has not committed any error of law warranting interference with the impugned order. According

to the counsel there is no illegality committed by the Magistrate in this case and the trial court has committed an error in taking cognizance of the

case filed by the petitioner.

This argument leads us to consider S. 195, Crl. P.C. which deals with prosecution for contempt of lawful authority of public servants for

offences against public justice and for offences relating to documents given in evidence.

In E.P. Subba Reddy v. State AIR 1969 AP 211 a Bench of the Andhra Pradesh High Court observed that:

The word ''cognizance'' occurring in S. 190 indicates the point of time when a Criminal Court first takes notice of an offence. Taking cognizance is

not the same thing as the initiation of the proceedings, as cognizance is taken of the offence and not of the persons, Therefore, faking ''cognizance''

of an offence by a Magistrate does not necessarily lead to the conclusion that judicial proceedings against any offender have been started. Though

S. 190 (1) (a) empowers the Magistrate to take cognizance of an offence upon receiving the complaint of facts constituting the offence. S. 195(1)

(b) lays an embargo or restriction on his power if such offence is committed in relation to any proceeding in any Court.

It is on the basis of the above decision, the learned counsel appearing for the respondent contends that, even though the Magistrate has taken

cognizance of the offence, it does not necessarily mean that the judicial proceedings against the respondent has been started, and that under the

circumstances S. 244 (I), Crl. P.C. will not come into play. The counsel for the respondent contends that ''cognizance'' indicates the point of time

when the Court has to first take note of an offence and that, taking cognizance does not mean, commencing of judicial proceedings under S. 195

(1) (b). This section lays an embargo or restriction on the power of the Magistrate to take cognizance, if an offence contemplated under S. 195 (1)

(b) is committed or in relation to any proceedings in Court. To substantiate his argument, the learned counsel for the respondent relies on a

decision of the Supreme Court, reported in State of Punjab v. Brij Lal Paha 1969 (l) S.C.J. 383 which deals with reference to an offence falling

under S. 211 I.P.C. 386 the Supreme Court observed,

It seems to us that so far as prosecution under S. 211 of the Penal Code is concerned, once a complaint filed by the informant is being proceeded

with which Is based on the same facts and allegations on which the first information was registered It is not open to a Magistrate to take

cognizance of any offence alleged to have been committed under that section unless there has been proper compliance with the provisions of S.

(95(1) (b) of the Crl. P.C. It will lead to very anomalous results if any other view is accepted e.g., if the complaint is ultimately dismissed arid the

Magistrate refuses to lodge a complaint under S. 195(1) (b) its provisions will be defeated or circumvented if the police can move the Magistrate

to take cognizance on a police report of an offence under S. 211.

On the basis of this decision, the learned counsel for the respondent contends (hat, in the instant case, the Magistrate has not taken cognizance

as contemplated under S. 190, Crl. P.C., that, when once there is no cognizance SS. 244 and 245, Crl. P.C. will not be attracted and, hence, the

discharge of the respondent in the instant case on the facts is legal and there is no error of law committed in the order of the trial Court.

What Is ''cognizance'' and under what circumstances'' cognizance'' could be taken has been fully discussed in E.P. Subba Reddy v. State

A.1.R. 1969 AP 281. On the analogy of the said decision, lam of the view that it cannot be said that the trial Court, in this case, has taken

cognizance and, under the circumstances SS. 244 and 245, Crl. P.C. will not be applicable.

Further, when summons are issued to the respondent and when the respondent appears before the Magistrate, the respondent can take a

preliminary objection regarding the maintainability of the case against him. It has been observed in, In Re: P.M. Kamath A.1.R. 1954 Mad 561 as

under:

When objection raised goes to the root of the case it should not be reserved for consideration till the entire evidence is recorded. The practice in

Madras High Court has been that where a preliminary objection to the very cognizance of the offence by the Magistrate could be taken, such point

can be raised before the lower Court itself and. In fact, it ought to be raised before the lower Court and then the aggrieved party may come up in

revision before the High Court so that needless waste of time would be avoided when such preliminary objections are taken and are upheld.

As stated above, the question of the respondent submitting to the proceedings under Ss. 244 and 245, Crl. P.C. will not arise on the facts of

this case, for, the respondent immediately questioned the power of entertaining the complaint by the Magistrate and had raised a preliminary

objection contending that the complaint against him is not maintainable under S. 195 (1) (b), Crl. P.C.

The facts in the case before me are very clear. The court which has acquitted the petitioner herein on the entire proceedings on a complaint

filed by the respondent, has not mentioned or observed anything or has ''granted permission to the petitioner to institute proceedings against the

respondent. I further {[find that the Magistrate, who has dealt with the case, C.C. 839/75, dismissed the complaint filed by the respondent ""against

the petitioner and that the said Magistrate has not granted permission to the petitioner to file any complaint against the respondent under S. 211,

I.P.C. That being so, the complaint in C.C. 131/78 filed by the petitioner before the Magistrate is not maintain able.

After going through the entire papers and hearing the arguments of the counsel appearing for both sides, I am of the view hat the order of the

Magistrate is perfectly justified, hut, in this case, what the Magistrate should have done is, that he should have (sic) allowed the petition/dismissed

the complaint instead of observing that the respondent is ""discharged"". The word ""discharge"" in the order of the Magistrate has created the entire

confusion. In these circumstances, I find no perversity or illegality or irregularity has been committed by the trial court to warrant interference in

revision. Hence, this criminal revision case is dismissed.