The Judgment of the Court was delivered by
Harries, C.J:— This is a Reference made to a Full Bench by a Division Bench in a criminal matter.
2. One Mokshoda Dassi, mother of Dhirendra Nath Bera, who was the complainant, had been ill for sometime and whilst her son was away from home on September 3, 1949, she died. On his return home late in the evening Dhirendra Nath Bera found that his mother had died and with the aid of his friends and neighbours he took the dead body to the Panshilla Hindu cremation ground and placed the body on a funeral pyre which was then lighted. It appears that the accused Nurul Huda had lodged an information at the Shyampore Police Station in which it was alleged that the petitioner had beaten or throttled his mother to death. The accused opposite parties— Nurul Huda, Basiral Huq, Sanwarlal Huq, Jahet Rahaman, and Dr. Niamutulla— accompanied by a Sub-Inspector of the Shyampore Police Station, hurried to the cremation ground and found that the funeral pyre had been lighted. A complaint was again made to the Sub-Inspector that the deceased had been done to death and at the instance of the accused opposite parties the body was removed from the funeral pyre and taken to the morgue. A post-mortem examination however revealed that there were no signs of injury on the body and that the deceased had died a natural death. Later, the final report of the police was to the effect that the information lodged was false. The petitioner filed a complaint in the court of a Magistrate at Uluberia charging the accused opposite parties with offences under secs. 297 and 500 of the Indian Penal Code. The accused were tried by the learned Magistrate and were found guilty on both charges. Each was convicted under sec. 297 of the Indian Penal Code and sentenced to rigorous imprisonment for three-months. Each was also convicted under sec. 500 of the Indian Penal Code and sentenced to pay a fine of Rs. 100 and in default of payment, to suffer simple imprisonment for two months. Out of the fines, if realised, the sum of Rs. 300 was to be paid to the complainant Dhirendra Nath Bera as compensation.
3. The convicted persons appealed to the Court of the learned Sessions Judge of Howrah and in that Court it was argued on their behalf that the accused could not be convicted of either of the offences because the provisions of sec. 195 of the Code of Criminal Procedure had not been complied with. It was contended that the complaint filed by the complainant disclosed an offence under sec. 182 of the Indian Penal Code and possibly under sec. 211 of the Code. That being so, it was urged that no prosecution could be instituted except on the complaint in writing of a public servant or except on the complaint of the Court concerned as required by Sec. 195(1)(a) and (b). The learned Sessions Judge relied on a recent case of this Court and upheld the contention put forward on behalf of the accused persons. He accordingly allowed the appeal, set aside their convictions and sentences and acquitted them.
4. The complainant then preferred a petition in revision to tills Court and the petition in due course came before a Division Bench. The Bench were of opinion that the accused could properly be tried on both the charges without a complaint being made by a public officer or a Court. However the Bench found that there were conflicting authorities of this Court and therefore they had no alternative but to refer the case to a Full Bench. The question which the Bench formulated for the answer of the Full Bench was in these terms:
“If the facts alleged in a petition of complaint, or in a report from the police or in an information received by the Magistrate, on which a Magistrate can ordinarily take cognizance of an offence under sec. 190 of the Code of Criminal Procedure, disclose an offence of which cognizance cannot be taken by the Magistrate because of the special provisions of sec. 195 or 196 or 196A or 197 or 199 of the Code of Criminal Procedure, 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 sec. 195 or 196 or 196A or 197 or 199 of the Code of Criminal Procedure.?.”
5. Under the Rules of this Court the whole case together with the question propounded was referred to a Full Bench for decision.
6. Section 195 deals with prosecutions for contempt of lawful authority of public servants, prosecutions for certain offences against public justice, and prosecutions for certain offences relating to documents given in evidence. The section provides that no prosecution for contempt of the lawful authority of public servants can be instituted except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. The section further provides that no prosecution for the other two classes of offences can be instituted except on a complaint in writing of the Court concerned or of some other Court to which the Court is subordinate.
7. Section 196 deals with prosecutions for certain offences against the State and provides that no prosecution can be instituted for such offences unless upon complaint made by order of, or under authority from the Provincial Government or some officer empowered by the Provincial Government in that behalf.
8. Section 196A deals with prosecutions for certain classes of criminal conspiracy and provides that prosecutions cannot be instituted except upon complaint made by order or under authority from the Provincial Government or certain officers empowered by the Provincial Government
9. Section 197 deals with prosecutions of Judges and public servants and such prosecutions can only be instituted with the previous sanction of either the Governor-General or the Governor of a Province.
10. Section 199 of the Code deals with prosecutions for adultery or enticing a married woman and provides that a prosecution cannot be instituted for either of these offences except upon a complaint made by the injured spouse or in her absence by some person who had care of such woman on behalf of the other spouse, at the time when the alleged offence was said to have been committed.
11. On behalf of the complainant petitioner it was contended that these sections of the Code of Criminal Procedure only required complaints to be made by public servants or Magistrates or judicial officers or only required previous sanction for the specific offences mentioned in the sections. If the facts, though they might disclosed offences under those particular sections, disclosed offences under other sections not referred to in secs. 195 to 199 of the Code of Criminal Procedure, prosecutions in respect of such offences could be instituted without observing the formalities required by those sections of the Code of Criminal Procedure.
12. On behalf of the accused however it was contended that if prosecutions for offences other than those mentioned in sees. 195 to 199 of the Code of Criminal Procedure could be instituted without the formalities prescribed by those sections of the Code then the provisions of those sections of the Code could be circumvented and defeated. It was therefore necessary, it was said, to insist that if the facts disclosed any of the offences mentioned in secs. 195 to 199 of the Code of Criminal Procedure, then the formalities required by those sections would have to be observed and the requirements of those sections strictly fulfilled.
13. In support of the contentions urged by the accused a number of cases of this Court were relied upon. In the case of Prafulla Kumar Ghose v. Harendra Nath Chatterjee* (1) [(1916) 21 C.W.N 253 : I.L.R 44 Cal. 970 : 25 C.L.J 445] the petitioners had instituted criminal proceedings under sec. 409 of the Indian Penal Code against the opposite parties who were discharged as the learned Magistrate found that the petitioners had no lawful or reasonable ground for the action that they had taken and that their complaint was not made in good faith. The opposite party then applied to the Magistrate for sanction under sec. 195 of the Code of Criminal Procedure to prosecute the petitioners under sec. 211 of the Indian Penal Code and in the alternative asked for process under sec 500 of the Indian Penal Code. The learned Magistrate refused sanction to prosecute for an offence under sec. 211 of the Indian Penal Code, but granted process under sec. 500 of the Indian Penal Code. A Bench of this Court held that on the facts the offence, if any, was clearly under sec. 211 of the Indian Penal Code and the application for sanction to prosecute for that offence having been rejected the petitioners could not be proceeded against under sec. 500 or sec. 500/109 of the Indian Penal Code on the same facts.
14. In Ibrahim v. Emperor (2) [(1928) 111 I.C 433] another Bench of this Court-held that where the offence committed is really one under sec. 471 of the Indian Penal Code, it is illegal to reduce the charge to one under Sec. 474 of the Indian Penal Code, and prosecute the accussed without a complaint under sec. 476 of the Code of Criminal Procedure. In this case the case which I have referred to earlier, Profulla Kumar Ghose v. Harendra Nath Charterjee (1) [(1916) 21 C.W.N 253 : I.L.R 44 Cal. 970 : 25 C.L.J 445] was cited with approval and followed.
15. A smilar view was taken by Henderson, J., in the case of Ranibala… v. Radharani Dasi…. (3) [(1945) 48 Cr. L.J 660 : 231 I.C 37] and by Sen, J., in the recent case of Osman Mistry v. Atul Krishna Ghose (4) (A.I.R 1949 Cal. 632 : 51 Cr. L.J 97). The same view was again taken by Sen and Chunder, JJ., in Benoy Kumar Mandal v. The State (5) [(unreported) Criminal Revision No. 59 of 1950].
16. The petitioner also relied on a number of authorities of this Court and of other High Courts in India. In Satish Chandra Chakravarti v. Ram Dayal De (6) [(1920) 24 C.W.N 982 S.B : I.L.R 48 Cal. 388] a Bench of five Judges held that the dismissal of an application by a party to a judicial proceeding for sanction to prosecute the Opposite party under secs. 181 and 193 of the Indian Penal Code for statements made by the latter or oath was no bar to a prosecution for the same statements under sec. 500 of the Indian Penal Code, the prosecution having been started prior to the application for sanction, and its dismissal further not attracting the operation of sec. 403 of the Code of Criminal Procedure.
17. This decision of five learned Judges has been referred to in other cases as a decision of a Full Bench. But it is quite clear from the records of this Court that it was a decision of a Special Bench and therefore though five learned Judges constituted the Special Bench the case only has the authority of a decision of a Division Bench. If this case could be regarded as the decision of a Full Bench the matter would have been concluded. But it cannot be so regarded. Sir Asutosh Mookerjee, A.C.J, who delivered the judgment of the Special Bench observed at page 1000:
“The Court is bound to administer the law as enunciated by the legislature and neither to enlarge nor to restrict the sphere of its application. As Baron Parke said in Egerton v. Brownlow (7) [(1853) 4 H.L.C 123] ‘it is the province of the Judge to expound the law only; the written from the statutes; the unwritten or Common Law from the decisions of our predecessors and of our existing Courts, from text-writers of acknowledged authority and upon the principles to be clearly deduced from them by sound reason and just inference’. Now, the maker of a single statement may be guilty of two distinct offences, one under sec. 211 (which is an offence against public justice) and the other, an offence under sec. 499, wherein the personal element largely predominates. The legislature has provided, in the Criminal Procedure Code, 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 sec. 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 under sec. 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, under sec. 198 of the Code of Criminal Procedure. Whether every statement made by an Advocate, by a party to a judicial proceeding, by a witness therein, should be excluded from the category of defamation or, if included therein, should be made punishable in a proceeding instituted only with the sanction of the. Court where the statement was made, are manifestly questions of policy which can be settled appropriately only by the legislature. If, for reasons of public policy, the legislature thinks fit to adopt the first alternative, as it is unquestionably competent to do, and to confer on advocates, parties and witnesses, not merely a qualified privilege as at present, but an absolute privilege as in the case of Judges, a new exception framed in suitable terms should be inserted in sec. 499 of the Indian Penal Code. If, on the other hand, the second alternative commends itself to the legislature as more expedient, sec. 500 of the Indian Penal Code may well be included in the list of sections contained in sec. 195(1)(b) of the Code of Criminal Procedure. It is, after all, the province of the statesman, and not of a Judicial Tribunal, to discuss, and of the legislature to determine, what is the best for the public good and to provide for it by proper enactments. But, till the law has been amended, in one or other of the modes just indicated, or, possibly in some other manner, it is incumbent upon us, if we are to, avoid the greatest uncertainty and confusion, to interpret the clear and unambiguous provisions of the statute in the plain, natural sense, and not allow ourselves to be led into speculations as to their reasonableness or unreasonableness by reference to the ever captivating but often misleading ideals of public policy.”
18. The view of the Special Bench was accepted and followed by a Bench of this Court in Superintendent and Remembrancer of Legal Affairs, Bengal v. Biswambhar Brahmin (8) [(1929) I.L.R 56 Cal. 1041] in which it was held that no, complaint by a Court is necessary for the prosecution of an offence under sec. 471 of the Indian Penal Code where, subsequent to the complaint being preferred and cognizance being taken thereon, a suit was instituted in the Court on the document in question. Graham, J., in his judgment expressly held 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, if he so wishes, to proceed in respect of those only which do not require sanction.
19. In a later case — Guru Prosad Ram Gupta v. Rameswar Marwari (9) [(1938) 42 C.W.N 674]— another Bench of this Court held that a prosecution of the complainant in a criminal case under sec. 500 of the Indian Penal Code at the instance of the accused on the ground that the former had brought a false charge of theft against the latter of which he had been acquitted could not be refused or quashed on the ground that it had the intention or effect of avoiding sec. 195 of the Code of Criminal Procedure when no sanction was asked for or refused.
20. The same view has been taken by other High Courts. See — Yeok Kuk v. Emperor (10) (I.L.R 6 Rang. 386 : A.I.R 1928 Rang. 252); Mohammad Isa v. Nasim Hussain (11) (I.L.R 1940 All. 214 : A.I.R 1940 All. 246 : 1940 A.L.J 79); Chanan Singh v. Tarak Singh (12) (A.I.R 1942 Lah. 76 : 199 I.C 543 : 43 Cr. L.J 572); Sheo Ahir v. Emperor (13) (I.L.R 17 Pat. 680 : A.I.R 1938 Pat. 548 : 178 I.C 487); In re, Vishwanath M. Hedge (14) [(1951) 53 Bom. L.R 55]; and Narayana Ayyar v. G. Veerappa Pillai (15) (A.I.R 1951 Mad. 34 F.B), which is a decision of a Full Bench.
21. In my judgment the Special Bench decision in Satis Chandra Chakravarty v. Ram Dayal De (6) [(1920) 24 C.W.N 982 S.B : I.L.R 48 Cal. 388] correctly states the law on the subject. Sections 195 to 199 of the Code of Criminal Procedure deal with the requisites for the prosecution of certain specified offences and it appears to me that the provisions of those sections must be limited to prosecutions for the offence 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 Sections 195 to 199 of the Code of Criminal Procedure the legislature could have said so. But it did not. It only made complaints in a particular form or previous sanctions necessary for the prosecution of particular offences and it appears to me that to hold that these sections of the Code of Criminal Procedure apply to all prosecutions based on certain facts is clearly erroneous. As pointed out by Sir Asutosh Mookerjee, A.C.J, in the Special Bench case, Satish Chandra Chakravarty v. Ram Dayal De (6) [(1920) 24 C.W.N 982 S.B : I.L.R 48 Cal. 388] to which I have made reference, it is the duty of the Court to construe these sections and to construe them according to the language used. It is not for a court to speculate as to what the legislature should or might have said. Regard can only be had to what the legislature has said. It has been Suggested in the cases which take the contrary view that to allow a prosecution for some other offence without a particular form of complaint, where the facts disclose an offence requiring a particular form of complaint, would be to defeat the provision in the Code requiring that particular form of complaint. It seems to me however that the legislature clearly intended a particular form of complaint or a previous sanction for the prosecution of certain offences only and there is nothing in these sections to suggest the prosecutions in respect of other offences based on the same facts could not be instituted except by observing the provisions of secs. 195 to 199 of the Code of Criminal Procedure. To accept the view of the learned Sessions Judge in this case would amount to reading into these sections of the Criminal Procedure Code something which does not appear in those sections. The view of the Special Bench appears to me to be unassailable and to hold otherwise would amount to legislating and adding very materially to the provisions of those sections in the Code of Criminal Procedure.
22. Further, the view that no prosecution for defamation under sec. 500 of the Code of Criminal Procedure can be instituted in respect of false information given to a public servant with intent that the latter should act upon it, except upon the complaint of the public servant would lead to a somewhat startling result. That contention is based on the view that no prosecution should be instituted to defeat the provisions of secs. 195 to 199 of the Code of Criminal Procedure. To institute a prosecution for defamation would, it is said, defeat the necessity for a particular form of complaint as required by sec. 195(1)(a) of the Code of Criminal Procedure.
23. It must be remembered that by reason of sec. 198 of the Code of Criminal Procedure no Court can take cognizance of an offence under sec. 500 of the Indian Penal Code which is in Chapter XXI of that) Code, except upon a complaint made by the person aggrieved of such offence. That being so, where the facts disclose an offence under sec. 500 of the Indian Penal Code a complaint by the person aggrieved is necessary and therefore it appears to me that if the facts also disclose an offence under sec. 183 of the Indian Penal Code it will be impossible to prosecute either offence except possibly on the complaint of two persons. If a prosecution for the offence under sec. 183 was instituted, it could be met with the contention that the facts disclosed an offence under sec. 500 and cognizance could only be taken upon the complaint of the person aggrieved, and to allow cognizance of art offence under sec. 182 of the Indian Penal Code upon the complaint of the public servant concerned would defeat the provisions of sec. 198 of the Code of Criminal Procedure. Similarly, to allow a prosecution for defamation on a complaint of the aggrieved person could be said to defeat the provisions of sec. 195(1)(a) of the Code if the defamatory statement appeared in a complaint made to a public officer, because a prosecution under sec. 182 for making such a complaint to a public officer could only be instituted upon the complaint of the public officer. The result would be that no prosecution could be instituted as the prosecution for one offence could be said to defeat the mandatory provisions of law required for the prosecution of another offence arising Out of the same facts.
24. No such difficulties, however, can arise if the view enunciated in the Special Bench case Satish Chandra Chakravarty v. Ram Dayal De (6) [(1920) 24 C.W.N 982 S.B : I.L.R 48 Cal. 388], to which I have made reference is accepted. If a particular form of complaint or a previous sanction is only necessary for the prosecution of the offences specifically indicated in secs. 195 to 199 of the Code of Criminal Procedure, then prosecutions for other offences not specified therein may be instituted without the particular forms of complaint or previous sanctions required by those sections. The construction placed upon these sections of the Code of Criminal Procedure by the Special Bench is the right construction and I would accordingly answer the question submitted to this Full Bench in the negative.
25. In any event I fail to see how the learned Sessions Judge could have held that a prosecution under sec. 297 of the Indian Penal Code could not be instituted by reason of anything in sec. 195 to sec. 199 of the Code of Criminal Procedure. The offence under sec. 297 of the Indian Penal Code is the offence of trespassing any place of worship or in any place set apart for the performance of funeral rites, with the intention of wounding the feelings of any person or insulting the religion of such person or with knowledge that the feelings of such person would be likely to be insulted thereby. The prosecution for this offence could in no way be said to arise out of the facts which would constitute an offence under see. 182 or sec. 211 of the Indian Penal Code. The prosecution would arise from any 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. Nevertheless the learned Judge held that no prosecution could be instituted for this offence because no complaint had been made by the public officer to, whom false information had been given. Clearly there is nothing in secs. 195 to 199 of the Code of Criminal Procedure which could possibly be said to prevent a prosecution for this offence.
26. With regard to the conviction under sec. 500 of the Indian Penal Code it is true that the prosecution for defamation was based on the false information given to a public officer with intent that the latter should act on it; and that being so a prosecution under Sec. 182 and Sec 500 of the Indian Penal Code could be said to arise out of the same facts.
27. For the reasons which I have already given there was in my view no ground whatsoever for the learned Sessions Judge holding that the accused could not be prosecuted under sec. 500 of the Indian Penal Code without the sanction of the public officer as required by sec. 195(1)(a) of the Code. The order of the learned Sessions Judge therefore was clearly erroneous and must be set aside. The learned Sessions Judge did not deal with the appeal on the merits, but allowed the appeal upon this preliminary point. It will therefore be necessary for the learned Sessions Judge to consider the appeal opt the merits and to come to a conclusion whether or not the offences under secs. 297 and 500 of the Indian Penal Code were established beyond reasonable doubt.
28. In the result therefore this petition must be allowed. The order of the learned Sessions Judge is set aside and we direct that the appeal be reheard by the learned Sessions Judge upon the merits. The Rule is accordingly made absolute.
Chakravartti, J.:— I entirely agree with my Lord, the Chief Justice.
Das Gupta, J.:— I entirely agree with my Lord, the Chief Justice.
A.K.D.G
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