Tayab Ullah Complainant v. King-Emperor

This is a Reference under sec. 438, Cr. P.C, by the Additional Sessions Judge of Sylhet. On the 17th January 1916 the Petitioner laid a first information, under sec. 154, Cr. P.C, at the Maulvi Bazar Police Station against Karam Sheikh and others and alleged that they had stolen his paddy and had thereby committed a cognizable offence under sec. 379, I.P.C The police investigated into the matter and on the 31st January submitted a final report under sec. 173, to the effect that the case appeared to be false and that there was no evidence for false prosecution. The Sub-divisional Officer, on receipt of this report, passed an order on the 12th February in the following terms: “Complainant to prove his case.” It will be observed that the complainant had not applied to the Magistrate to investigate into the matter. On the 18th March the Magistrate examined four witnesses and ordered the police “to adduce evidence on the 5th April to prove that the case was malicious.” On the day fixed, six more witnesses were examined. The Magistrate then recorded the following order: “It is evident from their depositions that there is a party feeling in the village, but the witnesses examined by the complainant had suppressed it. The complainant has totally failed to prove his case. I declare the case to be maliciously false and dismiss it under sec. 203. I sanction the prosecution of the complainant Tayabulla under sec. 211, I.P.C” The Sessions Judge has on the application of Tayabullah recommended that the order be set aside. It is plain that the order for sanction cannot be supported.

No sanction was required in this case under sec. 195(1)(b). A sanction is requisite in respect of an offence under sec. 211, I.P.C, only when suah offence has been committed in, or in relation to, any proceeding in any Court; no sanction is necessary when a false charge has been made to the police and has not been followed by a judicial investigation thereof by a Court [Karim Buksh v. King-Emperor (1), Bhimajaja v. Moove(2) and Emperor v. Ahamed(3)]. The position is different where, upon the police report as to the falsity of the complaint, the complainant insists upon a Judicial investigation; if he does so, he is deemed to have preferred a complaint to the Magistrate; if the Magistrate finds his case to be false, a sanction would be requisite under sec. 195(1)(b) as the offence may be said to have been committed in a proceeding in a Court. Queen v. Syamlal(4), Jogendranath v. Emperor(5) and Queen-Empress v. Beari(6). In the case before us, the Petitioner never applied to the Magistrate for investigation; he did not impugn the correctness of the police report nor did he pray that the person accused by him might be brought to trial. He was never examined on oath by the Magistrate; he cannot by any stretch of language be deemed to have made a “complaint” under sec. 4(h), and it is difficult to understand what the Magistrate meant when he dismissed the case under sec. 203. It is thus clear that the order for sanction to prosecute is bad, if it be deemed to have been granted under sec. 195. The order is equally bad, if we hold that the Magistrate has inaccurately expressed himself and that what he really intended was to make an order under sec. 476(1). In the first place, as pointed out in Dharamdas v. King-Emperor(7) and Jadunandan v. King-Emperor(8), sec. 476 must be read with sec. 195 and is consequently restricted by the limitations contained in cl. (b) of that section. An order for prosecution under sec. 476 cannot thus be made where the alleged offence under sec. 211 has been committed, not in Court but in relation to a police investigation. In the second place, a Court is competent to take action under sec. 476, only when the alleged offence has been committed before it or brought under its notice in the course of a judicial proceeding. Here the alleged offence was not committed in Court; nor was it brought to the notice of the Magistrate in the course of a judicial proceeding. The report by the police was not under sec. 157 so as to entitle the Magistrate to proceed under sec. 159—the procedure he adopted is not contemplated by the Code [Mauli Durzi v. Naurangilal(9)]. There was thus no judicial proceeding before him, and he could not consequently have taken action under sec. 476. It follows accordingly that his order cannot be sustained, either under sec. 195 or under sec. 476. We must therefore accept the recommendation of the Sessions Judge and set aside the order of the 5th April 1916.

S.C.M

Conviction set aside.