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Case Number

Criminal Application for Revision No. 111 of 1931

Advocates

J.J Cursetji, with Messrs Bhimji and Co., Attorneys, for the complainant-petitioner.
Taraporewala, Acting Advocate General, with P.B Shingne, Government Pleader, for the Crown.
The arguments of counsel are sufficiently indicated in the judgment of the Acting Chief Justice.

Judges

Mr. Patkar
A.C.J
Mr. Murphy, J.

Acts

section 499, exception 8, of the Indian Penal Code, since section 105 of the Indian Evidence Act
section 27 of the City of Bombay Police Act (Bom. IV of 1902).
sections 76 and 79 of the Indian Penal Code
section 27 of the City of Bombay Police Act.
SECTION 203 CRIMINAL PROCEDURE CODE
SECTION 202 CRIMINAL PROCEDURE CODE
section 105 of the Indian Evidence Act
section 363, Indian Penal Code,
section 342, Indian Penal Code,
BOMBAY POLICE ACT

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Smart Summary

Summary of Opinion — Patkar, A.C.J. (with concurring opinion of Murphy, J.)

Factual and Procedural Background

On October 26, 1930 the petitioner attended a national flag salutation ceremony at the Esplanade Maidan. When police officers allegedly attempted to snatch the national flag from her, she resisted; she and 13 others were thereafter put into a police motor van and, according to the complaint, were made to get down at a lonely place between Ghatkopar and Bhandup despite her protests that they be taken to jail or returned to Bombay.

The petitioner filed a complaint before the Magistrate initially without naming the sergeant. The Magistrate issued a notice, and on December 10, 1930 the Police Commissioner supplied the name of the accused as Sergeant Finan. On December 12 the Commissioner sent a letter stating that the accused had acted under his orders. At the hearing on January 15, 1931 the accused appeared, did not dispute the complainant's statements, and said that he had acted under the Commissioner's orders.

The Magistrate proceeded under section 202 of the Criminal Procedure Code, considered whether offences under sections 363 (kidnapping from lawful guardianship) and 342 (wrongful confinement) of the Indian Penal Code lay, and held that the accused in good faith believed he was bound by law to obey orders and so was protected by sections 76 and 79 IPC; the Magistrate discharged the notice and dismissed the complaint.

The petitioner sought revision of that order. The High Court (Patkar, A.C.J., with Murphy, J. concurring) considered procedural propriety, the limits of a s.202 inquiry, the evidentiary burden under section 105 of the Indian Evidence Act, and whether the Magistrate erred in dismissing the complaint without a proper investigation and taking of legal evidence.

Legal Issues Presented

Whether the Magistrate's procedure under section 202 CrPC — including issuing a notice to the accused and omitting to record reasons — was legally proper in the circumstances of this case.
Whether a Magistrate conducting an inquiry under section 202 CrPC may investigate and dismiss a complaint on the ground that the accused is protected by exceptions in the Indian Penal Code (specifically sections 76 and 79) without taking legal evidence to prove those exceptions.
Whether the practice in some Magistrates' Courts of issuing a notice to the accused prior to issuing process under section 202 CrPC is legally permissible.
What is the evidentiary burden when an accused pleads a general exception (such as sections 76 and 79 IPC) in response to an admitted set of facts — i.e., whether the accused must prove the circumstances bringing the case within the exception (section 105, Evidence Act).
Whether the complaint under section 363 IPC (kidnapping from lawful guardianship) required investigation in light of the factual admission that the petitioner went voluntarily.

Arguments of the Parties

Applicant (Petitioner)'s Arguments

The Magistrate erred procedurally by not recording any reasons under section 202 CrPC when he postponed issuing process and conducted the inquiry.
The prevailing practice in Bombay Magistrates' Courts of issuing notice to the accused before issuing process under section 202 CrPC is illegal.
Because the accused admitted the truth of the complaint, the onus of proving good faith (the defence raised) lay upon the accused and the Magistrate ought to have taken evidence and decided the matter at a proper trial rather than dismiss the complaint summarily.

Crown's (Respondent's) Arguments

The accused was protected by sections 76 and 79 IPC because he acted under the orders of the Commissioner of Police and, even if the order was not justified under section 27 of the City of Bombay Police Act, the accused as a Sergeant was bound to obey the Commissioner and might have acted under a bona fide mistake of fact.
Reliance was placed on Pramatha Nath Barat v. P.C. Lahiri to show that an officer acting under orders and a bona fide mistake of fact may be protected by sections 76 and 79 IPC, where there had been a full investigation in that case.
The Commissioner’s letter (stating the accused acted under his orders) supported the accused's plea that he acted under orders.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Appa Rao Mudaliar v. Janaki Ammal (Madras Full Bench)	Held that the practice of issuing a notice to the accused before issuing process under section 202 CrPC was improper and discontinued.	The Court noted this decision as authority that such practice had been rejected in Madras, but contrasted it with other decisions permitting the practice; used to frame the debate about permissibility and desirability of issuing notice before process.
Bhim Lal Sah v. Emperor	Held that the accused should not be made a party to a proceeding under section 202, nor allowed to cross-examine prosecution witnesses or to adduce defence evidence in that inquiry.	The Court cited it to show authorities that limit accused participation in a s.202 inquiry and to contrast procedural approaches in different jurisdictions.
In re Virbhan Bhagaji	Following In re Tukaram, held that the Bombay practice of issuing notice to the accused before issuing process under section 202 CrPC is not illegal.	The Court referred to this decision to demonstrate that the practice was held permissible in Bombay and to record Fawcett, J.'s distinction between illegality and desirability of such a practice.
In re Tukaram	Authority followed to justify the permissibility of issuing notice to the accused before issuing process under section 202 (as applied in Bombay).	Used as a supporting precedent for the view that issuing notice under s.202 is not necessarily illegal in Bombay.
Emperor v. Dhondu	Held that a complaint cannot be dismissed under section 203 CrPC without taking any evidence on the ground that the accused is covered by an exception (here, reference to section 499 IPC, exception 8), because section 105 Evidence Act places the burden of proving an exception on the accused.	The Court applied the principle that section 105 Evidence Act places the burden on an accused to prove circumstances bringing the case within an exception, and therefore a Magistrate should not dismiss a complaint sumarily without taking legal evidence to discharge that burden.
Pramatha Nath Barat v. P.C. Lahiri	Where an officer acted without malice and under an apparent lawful instruction (a circular), a mistake of fact made in good faith may attract protection under sections 76 and 79 IPC; the accused was acquitted after a full investigation.	The Court relied on this case to demonstrate that protection under sections 76 and 79 IPC is available where established, but emphasized that in that case a full investigation had been conducted — contrasting it with the present summary dismissal under section 203 CrPC.

Court's Reasoning and Analysis

The High Court's analysis proceeded in distinct steps, each tied closely to statutory limits and evidentiary rules reproduced in the opinion.

Jurisdiction and procedure under section 202 CrPC:
The Magistrate had jurisdiction under s.202 to postpone issue of process and to inquire into the truth or falsehood of the complaint. An omission to record reasons for conducting an inquiry under s.202 would be an irregularity only if the procedure adopted was otherwise lawful and proper in the circumstances.
Permissibility of issuing notice to accused before process:
The Court reviewed conflicting authorities. Madras Full Bench had condemned the practice, while decisions in Bombay (In re Virbhan Bhagaji, following In re Tukaram) had held it not illegal. The Court assumed, for the purposes of this case, that issuing notice to avoid false or frivolous complaints may be permissible but cautioned that the inquiry under s.202 is limited in scope.
Limited scope of a s.202 inquiry:
Section 202 inquiry is for ascertaining the truth or falsehood of the complaint — i.e., whether there is prima facie evidence to issue process — and is not intended to supplant a full trial. It is not meant to permit the accused to exonerate himself by mere unproved allegation of a defence or exception.
Burden of proof for exceptions — application of section 105 Evidence Act:
Section 105 Indian Evidence Act places the burden on the accused to prove the existence of circumstances bringing the case within any general or special exception in the Penal Code. Therefore, when the accused pleads protection under sections 76 and 79 IPC, it is incumbent on the Magistrate to take legal evidence and satisfy himself whether the accused has discharged that burden; a letter from the Commissioner, not being proved by legal evidence, was not sufficient by itself.
Effect of admission of facts by the accused:
Murphy, J. emphasized that once the truth of the facts alleged is admitted, a s.202 inquiry must end and proceedings transform into a trial to decide the plea of exception on the merits. The accused’s admission of facts coupled with a plea of exception required the Magistrate to proceed to take evidence and decide whether the defence of bona fide mistake of fact was established.
Application to the present case and outcome directives:
Because the Commissioner’s precise order was not produced as legal evidence and the accused had merely pleaded that he acted under orders and in good faith, the Magistrate erred in dismissing the complaint summarily. The Court directed that the Magistrate should investigate the complaint, take legal evidence as to whether the Commissioner’s order was lawful, and determine whether the accused, by reason of a mistake of fact, was entitled to protection under sections 76 and 79 IPC. If so established, the accused may be acquitted; if not, he must be dealt with according to law.
On section 363 vs section 342:
The Court held that investigation under section 363 (kidnapping from lawful guardianship) was unnecessary because the petitioner had gone voluntarily; however the complaint under section 342 (wrongful confinement) required investigation and the Magistrate was directed to investigate that charge.

Holding and Implications

Holding: Order of discharge set aside and case remanded.

Immediate effect and directives:

The High Court set aside the Magistrate's order dismissing the complaint under section 203 CrPC and remanded the matter to the Magistrate for further investigation.
The Magistrate was directed to take legal evidence and determine:
- whether the Commissioner's order (which the accused relied upon) was legal and could be proved by legal evidence;
- whether, if the order was not legally valid, the accused nonetheless acted under a bona fide mistake of fact and so was entitled to protection under sections 76 and 79 IPC;
- and, based on the evidence, either acquit the accused if the exception is established or deal with him according to law if it is not.
The complaint under section 363 IPC need not be investigated given that the petitioner had gone voluntarily; the Magistrate was to investigate the complaint under section 342 IPC.

Broader implications: The opinion clarifies procedural limits of a s.202 CrPC inquiry and reiterates the evidentiary rule in section 105 Evidence Act that the accused bears the burden of proving exceptions. The decision does not announce any broader novel legal principle beyond applying established authority and statutory rules to the facts; its immediate consequence is to require a proper investigation and taking of legal evidence before dismissing complaints on the ground of an exception.

Order of discharge set aside and case remanded.

Issued by: Patkar, A.C.J.; concurring opinion by Murphy, J. (B.G.R. noted).

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Gulabbai Baburao Parkar (Complainant), v. Sergeant J.A Finan (Accused), Opponent.

Patkar, A.C.J:—

The petitioner applies for revision of the order passed by the Presidency Magistrate, Third Court, discharging the notice and dismissing the complaint brought by the petitioner against the opponent Sergeant Finan charging him with the offences under sections 363 and 342 of the Indian Penal Code.

It appears that on October 26, 1930, the petitioner went to the Esplanade Maidan to witness the national flag salutation ceremony, and resisted the endeavours of the Police Officers who tried to snatch the national flag in her hand, whereupon the petitioner along with 13 others was made to sit in a Police Motor van, and it is alleged was made to get down at a lonely place between Ghatkopar and Bhandup in spite of her repeated protests either to take her to jail or back to Bombay.

She filed a complaint before the learned Magistrate without mentioning the name of the sergeant. The learned Magistrate issued, a notice and the Police Commissioner on December 10, 1930, furnished the name of the accused as Sergeant Finan. On December 12, the Commissioner sent a letter stating that the accused had acted under his orders. On January 15, 1931, when the case was called on, the accused appeared in person and did not dispute the correctness of the statements made by the complainant. When questioned by the Magistrate whether he had anything to say, he replied that under the Commissioner's order he took the women to Ghatkopar Road.

The learned Magistrate held an enquiry under section 202 of the Criminal Procedure Code and in view of the evidence of the complainant and the admission of the accused proceeded to consider the question whether the prosecution under sections 363 and 342 would lie against the accused. The learned Magistrate held that as the accused was led to believe in good faith under a misconception of fact that he was bound by law to carry out the order, he was entitled to the protection afforded by sections 76 and 79 of the Indian Penal Code. He, therefore, discharged the notice and dismissed the complaint.

It is urged on behalf of the applicant that the procedure adopted by the learned Magistrate is erroneous inasmuch as he did not record any reasons under section 202 of the Criminal Procedure Code, that the practice prevailing in the Magistrates' Courts in Bombay of issuing a notice to the accused before issuing a process against him under section 202 of the Criminal Procedure Code was illegal, and that the accused having admitted the truth of the complaint, the onus of proving good faith was on the accused, and the Magistrate ought not to have dismissed the complaint but ought to have decided the case on taking evidence.

The learned Magistrate had jurisdiction under section 202, if he thought fit, for reasons to be recorded in writing, to postpone the issue of process for compelling the attendance of the person complained against, and to enquire into the case himself for the purpose of ascertaining the truth or falsehood of the complaint. The omission to record reasons would amount merely to an irregularity if the procedure adopted by the Magistrate was legal and proper under the circumstances of the case.

The practice of issuing a notice to the accused before issuing a process against him under section 202 of the Criminal Procedure Code was held to be improper and was discontinued by the Madras High Court by the Full Bench decision in Appa Rao Mudaliar v. Janaki Ammal. In Bhim Lal Sah v. Emperor it was held that the accused should not be made a party to a proceeding under section 202, nor allowed to cross-examine the prosecution witnesses, or to adduce evidence for the defence. In In re Virbhan Bhagaji it was held, following the decision in the case of In re Tukaram, that the practice which prevails in the Magistrates' Courts in Bombay of issuing a notice to the accused, before issuing a process against him under section 202 of the Criminal Procedure Code, is not illegal. Fawcett, J. observed that there was a clear distinction between considering whether such a procedure is illegal and whether such a procedure is desirable, and though he felt the force of the objections to having a sort of preliminary trial of a case, he did not think that there was anything absolutely illegal in the issue of a notice to an accused person, but was of opinion that it was a matter more for any directions that the High Court as a body might think fit to issue than for a Division Bench of the High Court to deal with.

Assuming that the procedure of issuing a notice to an accused person before issuing a process under section 202 is permissible in order to avoid false and frivolous complaints, the nature of the inquiry is limited by section 202 of the Criminal Procedure Code. The inquiry can be made by the Magistrate under section 202 for the purpose of ascertaining the truth or falsehood of the complaint. The inquiry or investigation under section 202 is not intended to supersede a regular trial. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint, that is, for ascertaining whether there is evidence in support of the complainant's charge so as to justify the issue of a process and the commencement of the proceedings against the accused, and is not intended to cover an inquiry by the Magistrate as to whether the unproved allegation of the accused exonerates him. In the present case, the accused did not dispute the correctness of the statement made by the complainant, and when questioned replied that under the Commissioner's order he took the women, to the Ghatkopar Road, and in effect pleaded that his action was justified as having been done in good faith, and that he was protected by sections 76 and 79 of the Indian Penal Code.

The letter written by the Commissioner on December 12, that it was under his orders that the accused acted in connection with the incident, is not proved by legal evidence in the case. Under section 105 of the Indian Evidence Act when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. It was, therefore, incumbent on the Magistrate to investigate the complaint and to find out whether the allegation of the accused that he was protected by sections 76 and 79 of the Indian Penal Code was made out by legal evidence before him. In Emperor v. Dhondu it was held that a complaint charging defamation cannot be dismissed by the Magistrate under section 203 of the Criminal Procedure Code, without taking any evidence, on the ground that the accused is protected by section 499, exception 8, of the Indian Penal Code, since section 105 of the Indian Evidence Act places the burden of proving the exception on the accused. The limits of the inquiry under section 202 have been circumscribed and the scope of the inquiry is restricted only to the ascertainment of the truth or falsehood of the complaint, that is, for ascertaining whether the material facts alleged by the prosecution are true or false, and the provisions of section 202 are not intended to supersede the regular trial of the case by allowing the accused to make out his defence merely by alleging it without legal proof in support of his allegation.

It is urged on behalf of the Crown that the accused is protected under sections 76 and 79 of the Indian Penal Code and reliance has been placed on the decision in the case of Pramatha Nath Barat v. P.C Lahiri, where a Deputy Commissioner of Police sent a head constable, placed under suspension, to the lockup, without malice and in conformity with a Circular order of the Commissioner of Police, and it was held that he was justified in assuming that the said Circular order had received the sanction of the Government of Bengal and that as he, by reason of a mistake of fact and not of law, in good faith, believed himself to be bound by law to obey the instructions of the Commissioner of Police, and to be justified by law in sending the head constable to such custody, he was protected by sections 76 and 79 of the Indian Penal Code. In that case the accused was acquitted by the Magistrate on a full investigation of the case, and the complaint was not dismissed under section 203 of the Criminal Procedure Code in a summary way as in the present case.

It is urged on behalf of the Crown that the order of the Commissioner of Police was justified under section 27 of the City of Bombay Police Act (Bom. IV of 1902). The learned Magistrate held that the order was not justified by section 27 of the City of Bombay Police Act. It is urged on behalf of the Crown that even if the order was not justified under section 27 of the City of Bombay Police Act, the accused who was in service as a Sergeant for 18 months was bound to obey the order of the Commissioner, and by reason of a mistake of fact considered himself bound to obey that order and was, therefore, protected under sections 76 and 79 of the Indian Penal Code. The precise order passed by the Commissioner is not before us and has not been proved before the Magistrate by legal evidence in the case.

The Magistrate, in our opinion, should investigate this complaint, take legal evidence, and decide whether the order passed by the Commissioner was legal, and whether, if it was not a legal order, the accused, by reason of a mistake of fact, felt himself bound to obey that order, and was entitled to the protection afforded by sections 76 and 79 of the Indian Penal Code. If he comes to the conclusion that the accused is so protected, it will be open to him to acquit the accused. If, on the other hand, he comes to a contrary conclusion he will deal with the accused according to law.

I do not think that it is necessary to investigate the complaint under section 363, Indian Penal Code, as the petitioner had gone to the Maidan voluntarily on an errand of her own, and the accused had no intention to interfere with the rights of the lawful guardian of the petitioner, if any. The complaint under section 342, Indian Penal Code, will have to be investigated.

I would, therefore, set aside the order dismissing the complaint under section 203 of the Criminal Procedure Code and direct the Magistrate to investigate the complaint under section 342, Indian Penal Code, and deal with the case according to law.

Murphy, J.:—The complainant was arrested for attending a flag salutation ceremony, which had been forbidden by the Commissioner of Police, and she alleged that on her arrest she and some other women were put into a van and taken some miles along the Thana Road, where they were left to find their own way home. A complaint was filed for wrongful restraint and kidnapping from lawful guardianship. It is clear on the facts that they are not covered by the conditions which kidnapping from lawful guardianship require, and there only remains the offence of wrongful restraint.

The complaint was originally made against an unknown Sergeant, but the name of the accused was supplied by the Police authorities in the course of the trial. On receipt of the name, the Magistrate elected to hold an inquiry under section 202, Criminal Procedure Code, and issued a notice on the accused, instead of process. The accused appeared and pleaded the orders of his superior officer and a mistake of fact under sections 76 and 79 of the Indian Penal Code, and he was discharged by the learned Magistrate on the ground that his action was covered by the exceptions.

Now, it is a clear condition of the holding of an inquiry by a Magistrate, that he shall do so if in doubt ae to the truth or falsehood of the complaint, as appears from the end of sub-section (1) before the first proviso. The section is intended to protect the public from the harassment of reckless accusations; but once the truth of the facts alleged is admitted, the inquiry under section 202 must clearly be at an end, and the proceedings then be transformed into a trial.

This is what has happened here. The facts alleged were admitted, and an exception was pleaded. It was then the duty of the Magistrate to proceed with the case as at a trial, and decide the plea of the exception on the merits, the burden being on the accused to show that he acted under a bona fide mistake of fact, thinking that the Commissioner of Police's order was one of deportation, a power which the Commissioner of Police has, under the City of Bombay Police Act, in certain circumstances, and after deciding on the validity or otherwise of the plea, to acquit the accused, or to convict him as the facts might require. But the learned Magistrate discharged the accused when the facts were admitted on the bare plea of the exception, and here I think that he was in error.

I agree, therefore, with the order proposed by the learned Chief Justice.

Order of discharge set aside and case remanded.

B.G.R

Gulabbai Baburao Parkar (Complainant), v. Sergeant J.A Finan (Accused), Opponent.

Summary of Opinion — Patkar, A.C.J. (with concurring opinion of Murphy, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant (Petitioner)'s Arguments

Crown's (Respondent's) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Gulabbai Baburao Parkar (Complainant), v. Sergeant J.A Finan (Accused), Opponent.

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