Patna High Court
D. Sunder vs Emperor on 14 May, 1918
Equivalent citations: 52IND. CAS.282, AIR 1919 PATNA 511
JUDGMENT Ali Imam, J.
1. The petitioner is undergoing trial under Section 182 of the Indian Penal Code before the Sadar Sub-Divisional Officer of Monghyr. The circumstances which have culminated in this prosecution are shortly these.
2. The petitioner is a Sub-Manager in the Darbhanga Raj and is in charge of the Kharagpur Circle, which is situated in the Monghyr district. It appears that there is a Kund known as Rishi Kund with a temple in plots Nos. 77 and 79 respectively in village Biroj pur in the Zemindari of the Binaili Raj and in the possession of the Mahant of Bhola Nath. Contiguous with the Bataili Raj property is the Zamindari 6f the Darbhanga Raj. The two estates are demarcated by a line of pillars since 1908 and there has been since then no kind of dispute between the two Zamindaris. There are also some hot springs situated in the Darbhanga Raj land in the neighbourhood of the Rishi Kund and the temple mentioned above. These hot springs are visited by-pilgrims every three years for the purposes of worship and such offerings as are made on these occasions are collected by the servants of the Darbhanga Raj. It is alleged that there has been an attempt on the part of the Mahant to take these offerings and that the petitioner was informed that the Mahant had, in fact, gathered men to forcibly carry out his intention. Apprehending a breach of the peace, the petitioner on the 12th September 1917 wrote to the District Magistrate of Monghyr to the effect that he had received from the Raj officers placed near the hot springs alluded to above information purporting to be that a Sub-Inspector of Kharagpur Thana had helped the Mahant on a previous occasion and that the present Sub-Inspector had shown some indications of displeasure, and that for that reason he prayed the District Magistrate to depute a responsible Police Officer other than the Sub Inspector or a Deputy Magistrate for preventing the apprehended breach of peace, the cost of which would be met by the Darbhanga, Raj. It appears that Bibu Charu Chandra Choudhury was accordingly deputed by the District Magistrate to proceed to the spot and make necessary enquiries. Babu Charu Chandra Choudhury, having arrived on the spot, relaid the boundary and found that the disputed portion of the land on which these hot springs are fell within the property of the Darbhanga Raj. It appears from a note submitted by this officer on the 16th of March 1918 that the Sub Inspector had issued notices on both sides to prevent a breach of the peace. It also appears from that report that at the time of the enquiry the petitioner had represented to this officer that the Sub Inspector should not have issued notices on the servants of the Darbhanga Raj when the land in dispute was situated within the boundary of the Raj property. The note further goes on to say that the Deputy Magistrate made a local enquiry as to whether the Sub-Inspector had helped any particular party. The note also says that the result of the enquiry was embodied in a report dated the 10th of November 19i7 and was submitted to the District Magistrate. Nothing seems to have been done in the case so far as the petitioner is concerned till the 2nd of January 1918, when the District Magistrate of Monghyr passed the following order:
Owing to an oversight no final orders have been passed by me on this report. This oversight has been brought to my notice by the Superintendent of Police. I now pass orders as follows: I am satisfied from this report that the Sub-Inspector of Kharagpur Thana has done his duty in the matter and that the complaint made against him by the Sub-Manager has been unjustified. Inform all concerned and file.
3. It appears from the explanation furnished by the District Magistrate of Monghyr that on the 17th of December the Superintendent of Police had drawn the attention of the' District Magistrate to the case and had told him that the Sub- Inspector of Kharagpur Thana was constantly urging to be allowed to proceed against the petitioner for defamation, on account of allegations made by him in the letter that he had written to the District Magistrate on which Babu Charu Chandra Choudhury had been deputed to enquire and report. It also appears that the Sub-Inspector could not proceed in the matter unless there was a final order passed by the District Magistrate on the said report. Two days after the final order quoted above bad been passed, the District Magistrate received an application from the Sub Inspector with the previously obtained permission of the Superintendent of Police praying for sanction to prosecute the petitioner under Section 182 of the Indian Penal Code. This sanction was duly granted and the prosecution of the petitioner was started.
4. The petitioner contends that his prosecution under Section 182 of the Indian Penal Code is bad, inasmuch as the sanction to prosecute him was obtained without any notice served upon him, that the information given by him to the District Magistrate was in fact not found to be false by any competent authority before the sanction was given, that the information given by him to the District Magistrate did not contain any false information as his knowledge was based on what he has received as a report from his Forest Ranger and other responsible officers of the Raj, and lastly that there was nothing in the proceedings before the District Magistrate to show that the information given to him by the petitioner was false to the knowledge of the petitioner and that he believed the same to be false. On the above grounds he prays, firstly, to quash the proceedings or in the alternative to transfer the case from the file of the trying Magistrate to the file of any other Magistrate or pass such order as might appear to this Court to be proper. In order to appreciate the exact position relating to the grant of sanction to prosecute the petitioner, it is necessary to consider those portions of the letter written by the petitioner to the District Magistrate which have been considered the basis for the sanction for the prosecution under Section 182 of the Indian Penal Code. The letter is a very long one but the portions that are relevant to the matter before me are as follows:
But I regret to bring it to your notice that in consequence of the improper proceedings of the Sub Inspector in charge of the Kharagpur Thana at Rishi Kund yesterday, it is feared that there will be a disturbance of some sort on Sunday, the 16th of September 1917, and that trouble and annoyance will arise."
"But yesterday the Sub-Inspector of the Kharagpur Thana visited Rishi Kund and called up some of the Darbhanga Raj servants and peons who were on duty there, saying that he had come to enquire into the allegations contained in a petition which the Mahant had written. I am informed that the Sub Inspector lost his temper and became violent, threatening and intimidating the Darbhanga Raj servants, although he was repeatedly assured that there had been no breach of the peace of any sort and that everything was perfectly quiet in the place."
"Notwithstanding this, however, the Sub-Inspector, I am told, has arranged to help the Mahant with reference to his petition and I learn that he will again visit Rishi Kund springs on Saturday next, the 15th of September, and try to forcibly put the Mahant in possession of them on Sunday morning. I am further informed that the Mahant himself has arranged for men of bad character to attend on Sunday morning and disturb the public tranquillity, and with the help of the Sub-Inspector of Police, he will obtain forcible possession of the springs in the lands which belong to the Darbhanga Raj.
5. The letter in question begins with the words, ' Sir, I am directed to inform you as follows" and is dated the 12th of September 1917. Two days after the petitioner received a letter from the District Magistrate of Monghyr which runs as follows:
Sir, I am in receipt of your letter of the 12th instant in which you have been good enough to give me certain information under which the Mela is being held at Rishi Kund hot springs. You inform me in paragraph 6 of your letter under reply that you are directed to bring certain matters to my notice and to ask me to issue certain orders to the Sub-Inspector of Police at Kharagpur, and you also proceed to say that you are instructed to ask me to depute certain officers to the spot on Saturday and Sunday. In reply I have the honour to request you to be good enough to let me know from whom you have received the directions and instructions referred to.
6. The petitioner replied to the above letter of the 19th September 1917. This also is a long letter and all that is necessary for the purposes of this case is to refer to such portions of it as are material. The petitioner in this letter says, firstly, that his letter of the 12th September was written to the District Magistrate on the authority of the Hon'ble Maharaja Bahadur of Darbhanga. He next thanks the District Magistrate for having sent a guard of one head constable and eight constables for keeping the peace at the fair. He then says that in the circumstances as known to him and to his subordinates at the time the letter was written to the District Magistrate, there was no other course left to the Raj but to lay the facts before the head of the District and to await his help for maintaining the public tranquillity. Thereafter he details in the letter the points of difference that have arisen between the Mahant and the Raj and winds up the letter by saying that the latter had tried with the help of the Kharagpur Police to establish his title and right to land situated in the Darbhanga Raj but had failed completely in his endeavours to give the Raj annoyance and trouble.
7. These are the facts and circumstances under which the sanction to prosecute the petitioner under Section 182 of the Indian Penal Code was accorded.
8. One of the ingredients to prove an offence under that section is that the accused should know or have reason to believe that the information given by him was false. It is essentially a case in which mens rea must be established either by direct evidence or by the circumstances of the case and the conduct of the accused. It has been contended for the petitioner that before any sanction could be given to prosecute him, it was necessary for the learned District Magistrate of Monghyr to satisfy himself that the conduct of the accused fell within the mischief of Section 182 of the Indian Penal Code and that for this it was necessary that there should have been before the learned District Magistrate some evidence, either direct or inferential, to establish the fact that the information was false to the knowledge or belief of the petitioner. For this proposition reliance was placed upon Habibur Rahman v. Munshi Khodabux 11 C.W.N. 195 : 5 C.L.J. 219 : 5 Cr. L.J. 29 and Govindan Nayar, In the matter of the petition of 7 M. 224 : 8 Ind. Jur. 80 : 2 Weir 179 : 2 Ind. Dec. (N.s.) 741.
9. My attention was also drawn to grounds Nos. 4 and 5 of the petition. These two grounds are as follows:
1. For that the order is bad in law and liable to be set aside inasmuch as there is nothing to show that the informations were false to his knowledge or he believed them to be false.
2. For that the order is otherwise bad in law and without jurisdiction.
10. I looked up the explanation furnished by the learned District Magistrate of Monghyr with reference to these grounds and found that these grounds have been disposed of by the words "no remarks." Thereupon I asked the learned Government Pleader who appeared for the opposite party to tell me if there was anything on the record to show that the learned District Magistrate had anything before him to satisfy himself as regards the knowledge or belief of the accused regarding the falsity of the information given by him. The learned Government Pleader was unable to point out anything from the record to show that such was the case, but asked me to give him an opportunity to communicate with the learned District Magistrate to find out whether there was any such material before him at the time the sanction to prosecute the petitioner was granted. I accordingly allowed the case to stand over for the learned Government Pleader to be instructed on this point.
11. The case was again taken up on the 3rd of May 1918 and the learned Government Pleader informed the Court that he had no material to show that the information given by the petitioner to the District Magistrate was false to his knowledge or belief. In the absence of any such direct evidence it is necessary for me to consider whether there are circumstances in this case to show that the petitioner, when giving information to the District Magistrate, knew or had reason to believe that it was false. There is nothing on the record to show that the petitioner had any malice against the Sub-Inspector. There is also nothing to show that he had any reason to disbelieve the reports made to him by his subordinates, nor is there any-thing to indicate that the information given by him to the District Magistrate was within his personal knowledge. On the contrary the letters written by him to the District Magistrate read together dearly point out that he was wholly relying upon the reports he had received from his subordinates. It should also be remembered that there was an apprehension of a serious breach of the peace and that the petitioner invoked the protection of the District Magistrate, impelled not so much by the desire to injure any particular officer of the Police as to avert the breach of the peace that was likely to take place. It may be that in giving the District Magistrate the information contained in his letters he placed too much confidence on the report of his subordinates. These, however, cannot be regarded in the circumstances of the case as evidence of mala fides on his part. In fact the whole of the record is singularly wanting in proof of any mala fides on the part of the petitioner against the Sub Inspector. It seems to me, therefore, that it was not open to the learned District Magistrate to grant sanction for the prosecution of the petitioner without having before him some material upon which he could hold that the information given by him was fake to his knowledge or belief. 1, therefore, set aside the sanction given by the District Magistrate to prosecute the petitioner and order all further proceedings in the case to be stayed.