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PETITIONER:

BASIR-UL-HUQ AND OTHERS

Vs.

RESPONDENT:

THE STATE OF WEST BENGAL.NUR-UL-HUDAV.THE STATE OF WEST BENG

DATE OF JUDGMENT:

10/04/1953

BENCH:

MAHAJAN, MEHR CHAND

BENCH:

MAHAJAN, MEHR CHAND

BOSE, VIVIAN

JAGANNADHADAS, B.

CITATION:

1953 AIR 293 1953 SCR 836

CITATOR INFO :

RF 1958 SC 124 (5)

R 1962 SC 876 (15)

R 1966 SC 523 (5)

APR 1966 SC1775 (5)

RF 1971 SC1708 (13)

RF 1971 SC1935 (8)

ACT:

Criminal Procedure Code, 1898, ss. 190,195-Indian Penal

Code, 1860, ss. 182, 297, 500-Report to police alleging X

had killed his mother - Trespass with police on cremation

ground-Report found false-Complaint by X for trespass and

defamation-Maintainability-Jurisdiction to take cognizance

of offence-Whether barred by s. 195, Criminal Procedure

Code.

837

HEADNOTE:

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 under section 297, Indian

Penal Code (trespass to wound religious feelings) and

section 500 Indian Penal Code (defamation). It was

contended that, as the complaint disclosed offences under

sections 182 and 211, Indian Penal Code, the Court could not

take cognizance of the case except on a complaint by the

proper authority under section 195, Criminal Procedure Code:

Held, (i) that the facts which constituted the offence

tinder section 297 were distinct from those which

constituted an offence under section 182, 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 the charge under section 297.

(ii)As regards the charge under section 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, Criminal Procedure Code, from

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seeking redress for the offence committed against him.

Satish Chandra Chakravarti v. Ram Dayal De (24 C.W.N. 982);

Hori Ram Singh v. The Crown [1939] F.C.R. 139 referred to.

Section 195 cannot however be evaded by the device of charg-

ing 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, Criminal

Procedure Code.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 26

and 27 of 1952. Appeals under Article 134 (1) (c) of the

Constitution of India from the Order dated 4th February,

1952, of the Calcutta High Court (CHAKRAVARTTI and SINHA

JJ.) in Criminal Revision Nos. 102 and 103 of 1952.

S.C. Das Gupta and A.K. Dutt for the appellants.

B. Sen for the respondent.

Arun Kumar Datta for the complainant.

1953, April 10.The Judgment of the Court was delivered by

MAHAJAN J.

838

MAHAJAN J.--These two appeals arise in the following

circumstances: One Mokshadamoyee Dassi, mother of Dhirendra

Nath Bera, died some time in the evening of the 3rd

September, 1949. At the moment of her death Dhirendra Nath

was not present at the house. On his return at, about 8-30

p.m. he along with some other persons took the dead body to

the cremation ground. It appears that Nurul Huda, the

appellant in Criminal Appeal No. 27 of, 1952, had lodged

information at the police station to the effect that

Dhirendra Nath had beaten and throttled his mother to death.

When the funeral pyre was in flames, Nurul Ruda along with

the appellants in Criminal Appeal No. 26 of 1952 and

accompanied by the sub-inspector of police arrived at the

cremation ground. The appellants pointed out the dead body

and told the sub-inspector that the complainant had killed

his mother by throttling her and that there were marks of

injury on the body which they could show to the sub-

Inspector if he caused the body to be brought down from the

pyre. At their suggestion the fire was extinguished and the

dead body was taken down from the pyre in spite of the

protests from the complainant. On an examination of the

dead body it was found that there were no marks of injury

on. it and the appellants were unable to point out any such

marks. The body was however sent for postmortem examination

which was held on 5th September, 1949, but no injury was

found on the person of the deceased. The sub-inspector

after investigation reached the conclusion that a false

complaint had been made against Dhirendra Nath.

On the 24th September, 1949, Dhirendra Nath filed a petition

of complaint in the Court of the Sub-Divisional Officer of

Uluberia in the district of Howrali against the appellants

in both the cases and one Sanwaral Huq. It was alleged in

the complaint that the information given by Nurul Huda to

the police was false, that Nurul Huda and the other

appellants had made imputations mala fide out of enmity

against him with the intention of harming his reputation and

that to wound his religious feelings they had trespassed on

839

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the cremation ground and caused the dead body to be taken

out by making false imputations.

The appellants were tried before Shri R. Ray Choudhury,

Magistrate 1st class, Uluberia, on charges under sections

297 and 500, Indian Penal Code. The charges fraimed against

them were in these terms :-

"(1) That you on or about the 17th day of Bhadra, 1356 B.S.

at Panshila, P. S. Shyampur, with the intention of wounding

the religious feelings of P. W. 1, Dhirendra Nath Bera, the

complainant, committed trespass upon the cremation ground

where the funeral rites of the mother of the complainant

were being performed and thereby committed an offence

punishable under section 297, Indian Penal Code, and within

my cognizance;

(2) That you oil or about the 17th day of Bhadra, 1356 B.

S. at Panshila, P. S. Shyampur, defamed P. W. 1, Dhirendra

Nath Bera, the complainant, by making imputation to the

effect that he had killed his mother intending to harm, or

knowing or having reason to believe that such imputation

would harm the reputation of the complainant and thereby

committed an offence punishable under section 500, Indian

Penal Code, and within my cognizance."

None of these charges relates to the falsity of the report

made to the police or contains facts or allegations which

disclose an offence under section 182, Indian Penal Code.

The charge under section 297, Indian Penal Code, was a

distinct one and concerned an act of the accused committed

after the giving of the report. The charge under section

500 related to defamatory and libellous allegations

contained in the report itself.

It was contended on behalf of the defence that Nurul Huda

had lodged information with the police tinder a bona fide

belief created in his mind on the statement of one Asiram

Bibi and that none of the accused persons had entered the

cremation ground as alleged by the complainant,

840

The magistrate held the charges proved against all the

appellants and convicted each of them under sections 7 and

500, Indian Penal Code. Each of the appellants was awarded

three months' rigorous imprisonment on the charge under

section 297 and each of them was sentenced to a fine of Rs.

100 on the charge under section 500.

The appellants went up in appeal to the Sessions Judge of

Howrah who by his order dated 31st July, 1,950, set aside

the convictions and sentences and acquitted them. He held

that on the facts stated in the complaint the only offence

that could be said to have been committed by the appellants

was one under section 182 or section 21 1, Indian Penal

Code, and that a court was not competent to take cognizance

of those offences except on a complaint by a proper

authority under the provisions of section 195, Criminal

Procedure Code. Against the acquittal order an application

in revision was preferred to the High Court. This petition

came up for hearing before a Bench of the High Court (K. C.

Das Gupta and P. N. Mookerjee JJ.). The learned judges

reached the conclusion that on the facts alleged in the

petition of complaint distinct offences under sections 182,

297 and 500, Indian Penal Code, had been disclosed. They

however referred for the decision of the Full Bench the

following question:-

"If the facts alleged in a petition of complaint, or in an

information received by the magistrate, on which a

magistrate can ordinarily take cognizance of an offence

under section 190, Criminal Procedure Code, disclose an

offence of which cognizance cannot be taken by the

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magistrate because of the special provisions of section 195,

or 196, or 196-A, or 197, or 199, Criminal Procedure Code,

is the magistrate also debarred because of this from taking

cognizance of other offences disclosed by the facts alleged,

which are not in any way affected by the provisions of

section 195, or 1.96, or 196-A or 197 or 199, Criminal

Procedure Code."

The Full Bench answered the question referred in the

negative. In respect of the conviction under

841

section 297, Indian Penal Code, the learned Judges said that

there as nothing in sections 195 to 199, Criminal Procedure

Code, which could in any way bar the prosecution of the

appellants under that section, as it could in no way be said

that it arose out of the facts which would constitute an

offence under section 182, or section 211, Indian Penal

Code. On the other hand, it arose from an entirely

different set of facts, namely, the trespass by the opposite

parties in the burial ground and the removal of the corpse

from the lighted funeral pyre. With regard to the offence

under section 500, it was observed that though the

prosecution for defamation was based on the false

information given to a public officer, that circumstance,

however, was no bar for the prosecution of the appellants

under that section. In the result the application in

revision was allowed, the order of acquittal was set aside

and the sessions judge was directed to re-hear the appeal on

the merits.

After remand the appeal was heard on the merits and was

dismissed. The convictions and sentences passed by the

magistrate were confirmed. Against the order of the

sessions judge the appellants went up in revision to the

High Court but these applications were summarily dismissed.

The appellants thereupon applied to the High Court for a

certificate under article 134 (1) (c) of the Constitution

for leave to appeal to this Court. In the application the

order of the Full Bench dated 22nd June, 1951, was

challenged. This application was opposed on behalf of the

complainant on the ground that the interim order of the Pull

Bench not having, been appealed against could not be

challenged at that stage. Thus two substantial questions

were argued in the leave application, namely,

1.whether it was open to the accused to question the

correctness of the Full Bench decision, it not having been

appealed from when it was passed, and,

2.whether the point decided by the Full Bench in itself was

of sufficient importance to justify the granting of a

certificate under article 134(1)(c).

109

842

As the judgment of the Full Bench did not terminate the

proceedings but merely directed the appeal to be reheard, it

was held that the petitioners could not appeal from it at

that time and it was open to them to raise the point at this

stage. The second question was considered of sufficient

importance to justify the grant of leave and leave was

accordingly granted.

The learned counsel for the respondent raised a preliminary

objection in order to canvass the first question mentioned

above, while the learned counsel for the appellants

canvassed the question of the correctness of the decision of

the Full Bench on its merits. He contended that the

magistrate had no jurisdiction to take cognizance of the

complaint under section 500 and section 297, Indian Penal

Code, as the facts disclosed constituted an offence under

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section 182 which offence could not be tried except on a

complaint by a public servant.

Section 195, Criminal Procedure Code, on which the question

raised is grounded, provides, inter alia, that no court

shall take cognizance of an offence punishable under

sections 172 to 188, Indian Penal Code, except on the

complaint in writing of the public servant concerned, or

some other public servant to whom he is subordinate. The

statute thus requires that without a complaint in writing of

the public servant concerned no prosecution for an of-fence

under section 182 can be taken cognizance of. It does not

further provide that if in the course of the commission of

that offence other distinct offences are committed, the

magistrate is debarred from taking cognizance in respect of

those offences as well. The allegations made in a complaint

may have a double aspect, that is, on the one hand these may

constitute an offence against the authority of the public

servant or public justice, and on the other hand, they may

also constitute the offence of defamation or some other

distinct offence. The section does not per se bar the

cognizance by the magistrate of that offence, even if no

action is taken by the public servant to whom the false

report has been made. It was however argued that if on the

same facts an

843

offence of which no cognizance can be taken under the

provisions of section 195 is disclosed and the same facts

disclose another offence as well which is outside the

purview of the section and prosecution for that other

offence is taken cognizance of without the requirements of

section 195 having been fulfilled, then the provisions of

that section would become nugatory and if such a course was

permitted those provisions will stand defeated. It was

further said that it is not permissible for the prosecution

to ignore the provisions of this section by describing the

offence as being punishable under some other section of the

Penal Code.

In our judgment, the contention raised by the learned

counsel for the appellants is without any substance so far

as the present case is concerned. The charge for the

offence under section 297, Indian Penal Code, could in no

circumstance, as pointed out by the High Court, be described

as falling within the purview of section 195, Criminal

Procedure Code. The act of trespass was alleged to have

been committed subsequent to the making of the false report

and all the ingredients of the offence that have been held

to have been established on the evidence concern the conduct

of the appellants during the post-report period. In these

circumstances, no serious contention could be raised that

the provisions of section 195 would stand defeated by the

magistrate having taken cognizance of the offence under that

section.

As regards the charge under section 500, Indian Penal Code,

it seems fairly clear both on principle and authority that

where the allegations made in a false report disclose two

distinct offences, one against the public servant and the

other against a private individual, that other is not

debarred by the provisions of section 195 from seeking

redress for the offence committed against him. Section 499,

Indian Penal Code, which mentions the ingredients of the

offence of defamation gives within defined limits immunity

to persons making depositions in court, but it is now well

settled that immunity is a qualified one and is not absolute

as it is in English law. Under section 198,

844

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Criminal Procedure Code, a complaint in respect of an

offence under section 499, Indian Penal Code, can only be

initiated at the instance of the person defamed, in like

manner as cognizance for an offence under section 182 cannot

be taken except at the complaint of the public -servant

concerned. In view of these provisions there does not seem

in principle any warrant for the proposition that a

complaint under section 499 in such a situation cannot be

taken cognizance of unless two persons join in making it,

i.e., it can only be considered if both the public servant

and the person defamed join in making it, otherwise the

person defamed is without any redress. The statute has

prescribed distinct procedure for the making of the

complaints under these two provisions of the Indian Penal

Code and when the prescribed procedure has been followed,

the court is bound to take cognizance of the offence

complained of

The decided cases fully support this view and our attention

has not been drawn to any case which has taken a contrary

view as regards offences under section 500, Indian Penal

Code. In Satish Chandra Chakravarti v. Ram Dayal De (1),

five judges of the Calcutta High Court considered this

question and held that where the maker of a single statement

is guilty of two distinct offences, one under section 21 1,

Indian Penal Code, which is an offence against public

justice, and the other an offence under section 499, wherein

the personal element largely predominates, the offence under

the latter section can be taken cognizance of without the

sanction of the court concerned, as the Criminal Procedure

Code has not provided for sanction of court for taking

cognizance of that offence. It was said that the two

offences being fundamentally distinct in nature, could be

separately taken cognizance of. That they are distinct in

character is patent from the fact that the former is made

non-compoundable, while the latter remains compoundable; in

one for the the initiation of the proceedings the

legislature requires the sanction of the court under section

195,

(1) (1920) 24 C.W.N. 982.

845

Criminal Procedure Code, while in the other, Cognizance can

be taken of the offence on the complaint of the person

defamed. It could not be denied that the accused could be

tried of charges under sections 182 and 500, Indian Penal

Code, separately on the same facts provided the public

servant as well as the person defamed made complaints. If

that is so, there is no reason why one cannot be tried

independently of the other so long as the requirements of

each are satisfied. Harries C. J. while delivering the Full

Bench decision in question examined all the earlier cases of

the Calcutta High Court and observed that where upon the

facts the commission of several offences is disclosed some

of which require sanction and others do not, it is open to

the complainant to proceed in respect of those only which do

not require sanction; because to hold otherwise would amount

to legislating and adding very materially to the provisions

of section-is 195 to 199 of the Code of Criminal Procedure.

Sections 195 to 199 deal with the requisites for the

prosecution of certain specified offences and the provisions

of those sections must be limited to prosecutions for the

offences actually indicated. If it was the intention of the

legislature to make sanctions or complaints in a certain

form necessary for the prosecution of all offences disclosed

by facts which would give rise to any of the offences

specifically indicated in these sections, the legislature

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could have said so but it did not.

Recently this matter was canvassed before a Full Bench of

the Madras High Court and it was held that in such cases it

was open to the party defamed to take proceedings under

section 499, Indian Penal Code, without the court filing a

complaint in accordance with the provisions laid down in

section 195. There the question was whether the alleged

defamer who had given false evidence in a court could be

prosecuted under section 499, Indian Penal Code, without a

complaint by the court before whom fie gave evidenice and

the question was answered in the affirmative after an

exhaustive review of the decided cases of the different High

Courts in India. It was said that if the offence of

846

giving false evidence in a judicial proceeding and

defamation do not belong to the same genus but are distinct

and separate in their characteryistics and ingredients, it

was difficult to perceive any serious inhibition by the

Criminal Procedure Code for initiation and trial of one of

these offences independently of anterior resort to

fulfillinig the conditions necessary to comnience a

prosecution for the other. These observations have apt

application to the present case. The ingredients of the

offence under section 182 cannot be said to be the

ingredients for the offence under section 500. Nor can it

be said that the offence relating to giving false

information relates to the same group of offences as that of

defamation.

Though, in our judgment, section 195 does not bar the trial

of an accused person for a distinct offence disclosed by the

same facts and which is not included within the ambit of

that section, it has also to be borne in mind that the

provisions of that section cannot be evaded by resorting to

devices or camouflages. The test whether there is evasion

of the section or not is whether the facts disclose

primarily and essentially an offence for which a complaint

of the court or of the public servant is required. In other

words, the provisions of the section cannot be evaded by the

device of charging a person with ail offence to which that

section does not apply and then convicting him of an offence

to which it does, upon the ground that such latter offence

is a minor offence of the same character, or by describing

the offence as being 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, Criminal Procedure Code. Merely by changing

the garb or label of an offence which is essentially all

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.

Before concluding, reference nay also be made to the

decision of the Federal Court in Hori Ram Singh v. The

Crown(1). The appellant in that case was charged

(1) [1939] F.C.R. 159.

847

with offences under sections 409 and 477-A, Indian Penal

Code. The offence under section 477-A could not be taken

cognizance of without the previous consent of the Governor

under section 270(1) of the Constitution Act, while the

consent of the Governor was not required for the institution

of the proceedings under section 409, Indian Penal Code.

The charge was that the accused dishonestly misappropriated

or converted to his own certain medicines entrusted to him

in his official capacity as a sub-assistant surgeon in the

Punjab Provincial Subordinate Medical Service. He was

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further charged that being a public servant, be wilfully 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. The proceedings under

section 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 oil the merits as regards the charge under

section 409, Indian Penal Code, and the order of acquittal

passed by the sessions judge under that charge was set

aside. Two distinct offences having been committed in the

same transaction, one an offence of misappropriation under

section 409 and the other an offence under section 477-A

which required the sanction of the Governor, the cir-

cumstance 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 to the offence under

section 409.

Leave to appeal under article 134 (1) (c) of the

Constitution was limited to the question of law referred to

the Full Bench in this case, and it was distinctly said in

the order disposing of the leave petition that leave would

not have been granted had the scope of the appeal been

limited to the merits of the case. It was observed that

having regard to the findings recorded by the final court of

fact, as also the evidence in the case the elements of both

the offences had been fully established. The learned

counsel for the appellants attempted to argue that on the

facts found no

848

offence under section 297 could be said to have been made

out. This point, in our opinion, is not open at this stage,

it having been hold that all the ingredients of the offence

had been established on the record. Even otherwise there is

no substance in the contention because the prosecution

evidence is sufficient to hold the offence proved against

all the appellants.

For the reasons given above we hold that there is no

substance in these appeals and they are accordingly

dismissed.

Appeals dismissed.

Agent for the appellants: Sukumar Ghose.

Agent for the respondent: P. K. Bose.

Agent for the complainant: S. C. Bannerjee.