State v. Vipra Khimji Gangaram Opponent.

Shah, C.J:— This reference arises from the following facts. The opponent Khimji Gangaram lodged information at the Police station of Visa-vauar against one Mohanial Durlabhji charging him with an offence under Section 447 Indian Penal Code. The complaint was investigated by the police who found it to be false, and so on a report made under Section 173 Cr PC, the Sub-Divisional Magistrate granted a ‘B’ summary, and the Head Constable of the Visavadar Police Station then filed a complaint in the Court of the First Class Magistrate, Visavadar, charging the opponent with offences under Ss. 182 and 465 I.P.C The opponent contended before the Magistrate that the offence, if any, fell under Section 211 and not under Section 182 I.P.C (apart from the offence under Section 465 I.P.C) and that he could be prosecuted only on a complaint of the Sub-Divisional Magistrate and not at the instance of the police. The learned Magistrate upheld this contention and discharged the opponent, and the learned Sessions Judge, Sorath, has made this reference asking us to set aside the order of the Visavadar Magistrate.

2. Now in our opinion the order passed by the learned Magistrate is correct. The opponent is alleged to have falsely charged Mohanial Durlabhji with an offence knowing that there was no just or lawful ground for such charge and the offence obviously is covered by Section 211 I.P.C It may be that it may as well fall under Section 182 I.P.C, but it is a well established principle that a prosecution for a lesser offence should not be launched when the facts alleged constitute a graver offence. Dealing with a similar point, it was held in ‘Bajaji Appaji v. Emperor’, AIR 1946 Bom 7, that where the graver offence under Section 211, Penal Code, is disclosed from the facts stated in a complaint, the condition laid down under Section 195(1)(b) of the Cr PC, for taking cognisance of such a case cannot be evaded by electing to name the offence under another Section which is more general, and less grave. We are in agreement with this view and hold that it is not proper to defeat the provisions of Section 195 of the Cr PC by charging the opponent with a lesser offence. The opponent should therefore properly have been charged under Section 211 I.P.C and in that event the complaint had to be held by the Sub-Divisional Magistrate, and it was not competent to the police officer to prosecute the opponent. This question too has been dealt with in the Bombay case cited above. It was held that where information relating to the commission of a cognisable offence is given to an officer in charge of a police station under Section 154 of the Cr PC, and is followed by investigation by him, be is bound under Section 113(1) to forward his final report to a Magistrate empowered to take cognisance of the offence on a police report. An order passed by the Magistrate on such report would dispose of the complaint made to the police. That order is not merely an administrative order but a judicial older of the Court. Therefore, if the complaint is held to be false and a B summary is issued, the offence under Section 211, I.P.C will have to be alleged to have been committed by the complainant in relation to the proceedings in the Magistrate's Court which ended in an issue of the B summary. The Magistrate passing an order on a final report of the police sent after the investigation under Section 173 of the Cr PC, should be deemed to be a Court passing a judicial order disposing of the information given to the police. There lore the Sub-Divisional Magistrate is required to file a complaint in respect of the offence under Section 211 I.P.C and in the absence of such a complaint the proceedings launched against the opponent before the Visavadar Magistrate are without jurisdiction. The learned Magistrate was therefore right in discharging the opponent. The learned Advocate General also agrees with this view and has not supported the reference.

3. Mr. Chakshi for the opponent has also urged that the information originally given by the opponent against Mohanlal Durlabhji was lodged with the Sub-Inspector of the Visavadar Police Station and that therefore the opponent could be prosecuted my on a complaint made by the Sub-Inspector and not by the Head Constable of that Police Station, the Head Constable being the Subordinate of the Sub-Inspector. The record before us does not show whether the information had been given by the opponent to the Sub-Inspector or not and in the absence of any material we do not propose to consider this objection; but if the allegation is true, then it is clear that the complaint against the opponent could not have been filed by the Head Constable.

4. In the result we reject this reference.

5. Reference rejected.