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Nand Kishore Lal Complainant Petr. v. King-Emperor Opposite Party.
Factual and Procedural Background
The petitioner lodged a complaint with the police at Garhwa alleging that Thakur Singh and others had robbed him of Rs. 1,200 on 21st May 1923. The police investigated under section 380 of the Indian Penal Code (IPC) and reported the case as false under section 173 of the Criminal Procedure Code (Cr PC). The Inspector recommended that the complainant be called to show cause against prosecution under section 211, IPC. The Magistrate ordered the complainant to show cause, and after hearing, found the complainant's story false and expressed that the police should prosecute the complainant under section 211, IPC. Subsequently, proceedings under section 476 of the Cr PC were initiated by the Deputy Magistrate to prosecute the complainant for filing a false case. The Deputy Magistrate took cognizance and issued summons against the petitioner. The petitioner challenged this order by way of revision.
Legal Issues Presented
- Whether the order passed under section 476 of the Cr PC by the Deputy Magistrate was valid in law given that no judicial proceeding as contemplated by section 476 was pending before the Magistrate.
- Whether the Magistrate had taken cognizance of a judicial proceeding under section 190, clause (b) of the Cr PC, thereby justifying the initiation of prosecution under section 211, IPC.
- Whether an inquiry before a Magistrate, where the complainant is asked to prove his case based on police information, constitutes a judicial proceeding under section 476 of the Cr PC.
Arguments of the Parties
Petitioner’s Arguments
- The order under section 476 of the Cr PC is bad in law because no judicial proceeding was pending before the Magistrate as required by that section.
- The case relied on, Tayab Ullah v. King-Emperor, supports the proposition that the order is invalid when no judicial proceeding exists.
- An order under section 476 to prosecute under section 211, IPC, can only be passed when the offence relates to a proceeding in a Court, which was not the case here.
Respondent’s Arguments
- The learned Assistant Government Advocate argued that upon receipt of the police report, a judicial proceeding was initiated before the Magistrate under section 190, clause (b) of the Cr PC.
- The Advocate contended that the Magistrate took cognizance of the case under section 190 and that the position was akin to the Magistrate finding the complaint false after taking cognizance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tayab Ullah v. King-Emperor | Establishes that an order under section 476 Cr PC is invalid if no judicial proceeding is pending before the Magistrate. | The Court relied on this precedent to hold that the order under section 476 was bad in law because no judicial proceeding as contemplated by section 476 existed. |
| Triloki Mahto v. The King-Emperor | Clarifies that an inquiry by a Magistrate where the complainant is asked to prove a police information is not a judicial proceeding under section 476 Cr PC. | The Court applied this principle to reject the argument that the Magistrate had taken cognizance of a judicial proceeding, reinforcing the invalidity of the prosecution order. |
Court's Reasoning and Analysis
The Court analyzed whether the proceeding initiated under section 476 of the Cr PC was valid. It examined the nature of the Magistrate’s actions after the police report was received. The Court found that the Magistrate did not take cognizance of the offence complained of by the petitioner in the sense required by section 476. Instead, the Magistrate merely called upon the complainant to show cause against prosecution under section 211, IPC, which did not amount to a judicial proceeding. The Court rejected the argument that the Magistrate’s inquiry equated to taking cognizance under section 190, Cr PC. It relied on the precedent from Triloki Mahto v. The King-Emperor, which held that such an inquiry is not a judicial proceeding for the purposes of section 476. Therefore, the order for prosecution under section 476 was held to be bad in law and liable to be set aside.
Holding and Implications
The Court set aside the order passed under section 476 of the Cr PC and quashed the subsequent prosecution proceedings initiated against the petitioner.
The direct effect of this decision is the termination of the prosecution under section 211, IPC against the petitioner initiated through the impugned order. The Court did not establish any new precedent but reaffirmed the interpretation of section 476 Cr PC as requiring a pending judicial proceeding before the Magistrate for such prosecution to be valid.
1. This is an application in revision against the order of the Deputy Magistrate of Palamau purporting to be under section 476 of the Cr PC. The facts are shortly these:—
2. The petitioner lodged a complaint before the police at Garhwa against one Thakur Singh and others alleging that they had robbed him of a sum of Rs. 1,200 on the 21st May, 1923.
3. The police investigated into the case under section 380, I.P.C, and reported it to be false. The report was under section 173 of the Cr PC. This report was made by the Sub-Inspector through the Inspector of police and the Inspector wrote in the report that the case was false and he recommended that the complainant should be asked to show cause against prosecution under section 211, I.P.C The learned Magistrate thereupon made the following order on the 6th June, 1923:—
“Sub-Inspector's report seen. Call on the complainant to show cause against prosecution under section 211, I.P.C, on the 27th June, 1923.”
4. The petitioner showed cause and the order of the 5th July, 1923, runs thus:—
“Petition filed showing cause. It is simply a repudiation of the police report. Complainant still adheres to his contention that the case is true. He will prove his allegations on 20th July, 1923, and take all necessary steps to produce any evidence be wishes to on that date.”
5. It appears that the complainant, namely, the petitioner in this Court, examined certain witnesses and arguments were beard on the 7th August, 1923, on which date the learned Deputy Magistrate held that his story was false and that he had failed to prove his case. He therefore expressed his opinion that as a matter of principle the police should take necessary steps to prosecute the complainant under section 211, I.P.C The order-sheet of the 11th September runs thus:—
“Sub-Inspector submits a list of 10 P.Ws Separate proceedings under section 476 of the Cr PC, drawn up and placed in a separate file.”
6. The proceeding, however, which is referred to in the order of the 11th September appears to have been drawn up on the 14th September, 1923, and runs thus:—
“Whereas on 22nd May, 1923, the above mentioned Nand Kishore Lal of Sarhastal P.S Untari made a charge of theft under section 380, I.P.C, against Thakur Singh and others before the Sub-Inspector of Garhwa which on investigation was found to be false, and whereas the said Nand Kishore Lal was given a further opportunity in an enquiry before this Court of proving his case and failed to do so by the evidence he adduced, and the offence (section 211, I.P.C) in respect of which it is now proposed to prosecute the complainant (Nand Kishore Lal) being one mentioned under section 195, clause (b) of the Cr PC. I do now therefore by this proceeding under section 476 of the Cr PC, order the prosecution under section 211, I.P.C, of the said Nand Kishore Lal and send the case for disposal with the list of P.Ws filed by the police, to Maulvi Amir, Magistrate, first class.”
7. Upon this proceeding the matter went to Mr. Amir, the Deputy Magistrate and he has taken cognizance of the case and has issued summons against the petitioner.
8. Now, the point taken by the learned vakil for the petitioner is that the order under section 476 of the Cr PC, is bad in law inasmuch as there was no judicial proceeding pending before the Magistrate as-contemplated by section 476 and he relies upon the case of Tayab Ullah v. King-Emperor (1). The facts of that case are very similar to the facts of the present case-and it is clear that, having regard to the proceeding before the learned Deputy Magistrate, there was no judicial proceeding as contemplated by section 476 and the order passed under section 476 is bad in law. An order under section 476 to prosecute the petitioner under section 211, I.P.C, could only be passed when such an offence was committed in or in relation to any proceeding in any Court. Hera there was no proceeding in Court. It has been argued by the learned Assistant Government Advocate that as soon as the report of the police was received by the Magistrate a judicial proceeding was started before him and he took cognizance of the case under section 190, clause (b) of the Cr PC. This argument does not appear to me to be a sound argument. The Magistrate did not taka cognizance of the offence complained of by the petitioner. He upon receipt of the report of the police called upon the petitioner to show cause against his prosecution under section 211, I.P.C It has been argued by the learned Assistant Government Advocate that the position was the same as if the learned Deputy Magistrate had taken cognizance of the case under section 190 and had found the complaint to be false. To my mind this argument is not sound. In a similar case this Court held that an enquiry by a Magistrate before whom the complainant had been asked to prove his case in reference to an information lodged before the police is not a judicial proceeding under section 476 of the Cr PC—vide Triloki Mahto v. The King-Emperor (2).
9. The result is that the order of the learned Deputy Magistrate under section 476 of the Cr PC, is bad in law and must be set aside and as a result thereof the proceeding initiated by the learned Deputy Magistrate in accordance with the order under section 476 of the Cr PC, must also be quashed.
10. Order set aside.
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