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Premdas v. Lalloo Ram
Structured Summary of the Opinion
Factual and Procedural Background
The petition arises under Section 417(3) of the Criminal Procedure Code (Cr PC) seeking leave to appeal against the acquittal of four persons (Lalloo Ram, Kishandas, Kundanlal and Nanhelal) who were tried jointly with two others (Ramnath and Baijnath) in a prosecution for murder. The deceased, Nanhelal (also known as Nanhelal Dadhiwala), brother of the petitioner Premdas, died from injuries sustained in a beating.
Two separate and nearly simultaneous informations were lodged at the Hoshangabad police station: one by accused Ramnath and another by Mathoo Kotwar. At the scene the Station House Officer received a report from one Sunder implicating the four non-applicants as well as Ramnath and Baijnath. Following investigation, the police submitted a charge sheet only against Ramnath and Baijnath.
The petitioner Premdas applied to the committing magistrate to have the four non-applicants joined as accused; he also applied for permission for his engaged lawyer to assist the District Police Prosecutor, and that application was allowed. The magistrate ordered that the four non-applicants be arrayed as co-accused and, after enquiry under Section 207-A, committed all six accused to the Court of Session. After trial the four non-applicants were acquitted; this petition challenges those acquittals under Section 417(3).
Legal Issues Presented
- Whether the acquittal of the four non-applicants occurred in a "case instituted on complaint" for the purpose of Section 417(3) Cr PC (i.e., whether the petitioner had standing as a complainant to apply for special leave to appeal).
- Whether the petitioner's application to have the four persons added as accused, in circumstances where no charge sheet had been filed against them by the police, amounted to initiating a separate case instituted on his complaint (as opposed to being part of the police-initiated case).
- Whether the procedural steps actually taken by the committing magistrate (including using Section 207-A procedure and not examining the petitioner under Section 200) indicate that a fresh complaint-case was instituted or that the proceedings remained part of the police-initiated case.
Arguments of the Parties
Petitioner's Arguments
- The learned counsel for the petitioner argued that because the police had not presented any charge sheet against the four non-applicants and because the petitioner had applied to have them added as accused, that application amounted to a "complaint" as defined in Section 4(h) of the Cr PC. On that basis the case as regards the four non-applicants was a case instituted on the petitioner's complaint and he therefore had locus to make an application under Section 417(3).
- It was further urged that effectively there were two cases — one instituted on the police charge sheet against Ramnath and Baijnath, and a second instituted on the petitioner's complaint against the four non-applicants — and that the joint trial resulted only from the operation of Section 239 of the Cr PC; despite the joint trial, the case against the four non-applicants remained one instituted on complaint.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sk. Osman Gani v. Baramdeo Singh, AIR 1959 Cal 145 | Interpreted the expression "case instituted on complaint": a "case" means a "cause" before the Court; mere filing of a petition/complaint does not by itself create a "cause" unless the Court applies its mind and takes further proceedings. | The court expressed respectful agreement with this interpretation and relied on it to conclude that a mere protest petition did not by itself convert proceedings into a case instituted on complaint when the magistrate had already taken cognizance on a police charge sheet. |
| Mahabir Prasad v. State, AIR 1958 Orissa 11 | Established that a magistrate's jurisdiction to take cognizance on a police report is not ousted merely because a complaint (or protest petition) is pending; the magistrate may still direct further enquiry or call for a charge sheet. | The court applied this principle to hold that the petitioner’s protest petition did not oust the magistrate’s jurisdiction or create a separate complaint-case; the petitioner’s application to add accused was viewed as a request to have them added to the existing police-initiated case. |
| Kshetrabashi v. Lalit Kumar, AIR 1959 Cal 595 | Held (by a single judge) that where a complaint is filed, sent for police enquiry, and thereafter the police file a charge-sheet on which cognizance is taken, the case can be said to be instituted on the complaint. | The court noted this decision but observed that an earlier Division Bench decision of the Calcutta High Court (Sk. Osman Gani) was to the contrary and had not been cited to the single judge in Kshetrabashi. The court did not adopt Kshetrabashi's view for the present matter. |
| V.B. Mohd. Ibrahim v. Alfred Schafranek, AIR 1960 Mys 173 | Held a view in line with Sk. Osman Gani regarding the meaning/application of a case instituted on complaint. | The court noted this decision as supporting the view adopted from Sk. Osman Gani and relied on this alignment when deciding the present petition. |
Court's Reasoning and Analysis
The court began with textual and contextual interpretation of the word "case" in the phrase "case instituted on complaint" found in Section 417(3) Cr PC. Adopting the dictionary meaning ("cause") and following the reasoning in Sk. Osman Gani, the court held that a "case" denotes a cause before the court and only comes into existence when the court applies its mind and takes further proceedings on a petition or complaint.
The court distinguished between allegations naming persons and the taking of cognizance: cognizance is of an offence and not merely against particular named offenders. A magistrate has the power, in proceedings initiated either by police report or complaint, to take cognizance of offences or persons not specifically mentioned at the outset if at a later stage other offences or participants are made out. Therefore, bringing additional offences or persons before the court in the course of existing proceedings does not amount to the initiation of a fresh case.
Applying these principles, the court found that the petition filed by Premdas was essentially a request to have the four non-applicants added as accused in the police-initiated case (i.e., the charge sheet already before the magistrate). This reading was supported by the petitioner's own statement that the court was "seized of the case," indicating he regarded the proceedings as the police-initiated matter.
The court examined the committing magistrate's procedure and noted that the magistrate did not treat the petition as a fresh complaint: the petitioner was not examined under Section 200 (which is the procedure where a complaint is being enquired into), and the procedure followed was under Section 207-A applicable to cases triable by the Court of Session (police-initiated procedure), not Section 207 (which governs cases instituted otherwise than on police report). This factual procedural posture supported the conclusion that there was no separate complaint-case initiated by the petitioner.
The court also relied on Mahabir Prasad to emphasize that a pending complaint (or protest petition) does not oust the magistrate's jurisdiction to take action on a police report. The petitioner’s application was therefore treated as seeking addition in the existing police-filed case rather than creating a distinct complaint-case.
The court noted contrary authority (the single-judge decision in Kshetrabashi) but observed that the earlier Division Bench decision in Sk. Osman Gani, and the Mysore decision in V.B. Mohd. Ibrahim, supported the analytical approach the court adopted.
Holding and Implications
Holding: The petition under Section 417(3) Cr PC was dismissed. Petition dismissed.
Implications:
- Direct effect on the parties: the petitioner was held not to have locus under Section 417(3) in respect of the acquittal of the four non-applicants because the acquittal occurred in proceedings that were instituted on the police charge sheet and not in a case instituted on the petitioner's complaint.
- The court applied existing authorities and interpretative principles (as discussed above) to reach its result. The opinion does not announce or discuss any broader new legal principle beyond applying established interpretations of what constitutes a "case instituted on complaint" and clarifying that addition of accused in ongoing police-initiated proceedings does not convert those proceedings into a separate complaint-case.
1. This is petition under Section 417(3) of the Cr PC, for leave to appeal against the acquittal of the four non-applicants, Lalloo Ram, Kishandas, Kundanlal and Nanhclal, in a prosecution for offence of murder, in which these four non-applicants who were acquitted, were tried jointly with two others, Ramnath and Baijnath, who were convicted of the offence of murder. One Nanhelal, who was also known as Nanhelal Dadhiwala, the brother of the petitioner Premdas died as a result of beating administered to him. Two separate and almost simultaneous information were lodged at the police station house, Hoshangabad, in respect of this incident, one by Ramnath, one of the accused persons, and lie other by Mathoo Kotwar. The Station House Officer, Hoshangalbad, went to the spot and at the spot one Sunder made a report to him, wherein he implicated) the four non-applicants, as well as Ramnath and Baijnath, as having participated in the assault, which resulted in the fatal injuries to the deceased.
2. After investigation, the police put up a charge sheet for offence of murder of the deceased against only two, viz. Ramnath and Baijnath. Thereafter, the petitioner Premdas made an application in the Court of the committing magistrate for joining the four non-applicants, against whom no charge sheet had been presented, as accused. The application, after making a grievance of the fact that the charge sheet was against only two out of six ??? went on to state:
“The applicant, who is the brother of the deceased Nanhelal, the alleged victim of the murderous assault under enquiry, desires, therefore, to call the attention of the Court with respect to this omission of the four assailants from the scheme of the case and humbly submits that proceedings at this stage be held up and action be expeditiously taken to order issue of necessary processes for securing the attendance of the said four persons, viz. (1) Lallaram, (2) Kishandas, (3) Kundanlal and (4) Nanhelal, so as to be joined as co-accused, along with Ramnath and Baijnath, who are present at the enquiry.
The joining of the said four persons is called for and is necessary in the ends of justice and this Court can independently do it because it is seized of the case.”
3. There was a second application moved at that very time by the petitioner that he had engaged a lawyer who should be permitted to assist the District Police Prosecutor in the conduct of the case before the Court. That application was allowed. The magistrate, after considering the application, first mentioned, ordered that the four non-applicants also be arrayed as co-accused. This was accordingly done.
4. The committing magistrate, after making enquiry under Section 207-A of the Cr PC, committed all the six accused persons to the Court of session. After the trial, as stated earlier, the four non-applicants were acquitted and the petition under consideration is in respect of that acquittal.
5. The locus standi of the petitioner to make a petition under Section 417(3) of the Cr PC, has been challenged. That section reads as follows:
“417(3). If such an order of acquittal is passed an any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”
6. The first point for consideration is whether the acquittal of the four non-applicants was in a case instituted on complaint. The learned counsel for the petitioner has urged that since the police had not presented any charge sheet against these non-applicants, and since they were arrayed as accused on the application of the petitioner, which amounted to a complaint as defined in Section 4(h) of the Cr PC, the case, so far as the non-applicants were concerned, was one instituted on his complaint, and hence he was competent to make this petition.
7. It was also urged that, in fact, there were two cases instituted, — one against the two accused, Ramnath and Baijnath, on the charge sheet presented by the police, and the second against the four non-applicants on the complaint of the petitioner, and that it was only because of Section 239 of the Cr PC, that the trial of the accused persons in the two different cases, happened to be a joint trial, and that in spite of that joint trial, the case against the four non-applicants remained a case instituted on the complaint of the petitioner.
8. The word ‘case’ has not been defined in the Code of the Criminal Procedure. The dictionary meaning of the word as given in Webster's dictionary, when it is used in relation to legal matters is ‘cause’. The Calcutta High Court in Sk. Osman Gani v. Baramdeo Singh, AIR 1959 Cal 145, when considering the expression “case instituted on complaint”, after scrutinizing the scheme of the Code of Criminal Procedure, was of the view that “a case” means “a cause” before the Court. The mere filing, of a petition or a complaint does not by itself without anything further being done in the matter, bring into existence a “cause”. It is only when the Court applies its mind to the matter in the petition to take further proceedings that there is a case in the sense of ‘cause’ before the Court. I am, therefore, in respectful agreement with the interpretation put on the word “case” by the Calcutta High Court.
9. Now, a cause before a criminal Court, when it is initiated by an allegation of commission of an offence, is a matter relating to the facts of the commission of the offence, and that involves ascertaining, when a person is named in the allegation as the offender, whether it was he who committed it. That, however, does not mean that the cause before the Court is only in respect of the person named as an offender in the allegation or is one only in respect of offence specifically mentioned in the information, on the basis of which cognizance is taken. Cognizance is taken, under the Code of Criminal Procedure, of an offence and not as against offenders.
10. A magistrate, in all cases, whether instituted on a complaint or on a police report, has power to take cognizance in respect of any other offence, not mentioned in the complaint or police report, and also against persons not so mentioned, if at a subsequent stage, other offences are made out, or it is found that persons other than those mentioned, have also participated in that offence. Hence, in such a case, action taken by the magistrate in respect of an offence or offender, not mentioned in the complaint or police report, would not amount to starting a fresh case, but would be action taken in the course of proceedings already instituted.
11. In Mahabir Prasad v. State, AIR 1958 Orissa 11, an informant had made a report to the police about theft of certain ornaments. The police, after investigation, sent a final report to the Sub-Divisional Magistrate. The informant then filed what is known as a ‘protest petition’, alleging that the police had not investigated the case properly and praying that either the police be directed to be a charge sheet, or that the Sub-Divisional Magistrate should hold a judicial inquiry. The magistrate, at first, accepted the final report, but subsequently directed holding of an enquiry by another magistrate and submitting a report.
12. As a result of that enquiry by the other magistrate, a report was submitted that the enquiry revealed that a prima facie case against two persons for offence under section 411, Indian Penal Code, had been made out.
13. The Sub-Divisional Magistrate then passed an order directing the police to file a charge sheet. It was pointed out that merely because a protest petition, which is usually treated as a complaint, pending, the jurisdiction of the magistrate to take cognizance on police report in respect of the same offence, was not taken away.
14. Though the facts of this Orissa case are different, the principle that the jurisdiction of a magistrate to call for a charge sheet, even if a complaint is presented to him, is not taken away, would apply. The petitioner had made an application to add the non-applicants as accused persons. Obviously, it means that he prayed that they be added as accused in the charge sheet that was already presented by the police. This is further made clear by the statement of the petitioner that this could be done as the Court was “seized of the “case”” (underlining here in is mine). The case referred to could only be the one started on the charge sheet. The petitioner did not thus contemplate initiation of a fresh or separate case against the four non-applicants.
15. The committing magistrate, in the present case, did not take action against the non-applicants treating the petition made by Premdas as a complaint. That would be seen from the fact that he did not examine the complainant as required by Section 200 of the Cr PC. The procedure for enquiry into cases triable by Court of session that was followed was one prescribed under section 207-A of the Code and not the one prescribed under section 207 of the Code, which governs cases instituted otherwise than on police report.
16. The petitioner himself treated the case as regards the cognizance of offence taken, as already instituted on police report and allowed the non-applicants to be dealt with in the proceedings that had already been instituted. I am, therefore, inclined to hold that, though the petitioner did file what may be termed as a protest petition, which is equivalent to a complaint, the case, which ended in the acquittal of the four non-applicants, was already instituted on the charge sheet, on basis of which cognizance of the offence had already been taken by the committing magistrate, and that non-mention of these four non-applicants in the charge sheet as offenders and their being subsequently added as accused, would not affect the above conclusion since there was no separate case as such Instituted.
17. The learned counsel for the petitioner referred to a decision of a single Judge of the Calcutta High Court in Kshetrabashi v. Lalit Kumar, AIR 1959 Cal 595, where it was held that when a complaint is filed before a magistrate, who sends it for enquiry by police, whereafter the police file a charge-sheet, on which cognizance is taken by the magistrate,’ the case can be said to be instituted on a complaint. The earlier Division Bench decision of the same High Court in AIR 1959 Cal 145, (supra) to the contrary does not appear to have been brought to the notice of the single Judge deciding Kshetrabashi's case, AIR 1959 Cal 595. The decision in V.B Mohd. Ibrahim v. Alfred Schafranek, AIR 1960 Mys 173, is in line with the view taken in Sk. Osman Gani's case, AIR 1959 Cal 145.
18. (Portion omitted as not approved.) The result is that the petition under Section 417(3) of the Cr PC, is dismissed.
LD/D.H.Z
19. Petition dismissed.
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