Patna High Court
Rit Lal Khatway vs The State Of Bihar on 1 December, 2006
Equivalent citations: 2007(1)BLJR551, 2007CRILJ593, 2007 CRI. L. J. 593, 2007 (2) AIR JHAR R 654, (2007) 3 EASTCRIC 241, (2007) 1 PAT LJR 302
JUDGMENT Indu Prabha Singh, J.
Page 0552
1. This appeal, by the sole appellant, has been filed against the judgment and order dated 16.6.1992 passed by Shri Sardar Bhagat Singh, Ist Addl. Sessions Judge, Darbhanga in S.T. No. 51/1981/21/1985 by which the appellant was convicted under Sections 193, 211 and 182 of the Indian Penal Code and is was sentenced to undergo simple imprisonment for three years, six months and three months respectively.
2. It appears that the present appellant filed a written report on 9.2.1976 before Dy. S.P. alleging therein that Swaroop Khatway and nine other accused persons abducted his daughter-in-law and also committed theft of certain house hold articles. The appellant also filed a protest-cum-complaint petition before the learned Chief Judicial Magistrate which, after enquiry, was found to be false. The complaint petition was dismissed by the learned Chief Judicial Magistrate on 2.1.1978 and he filed a complaint petition against the appellant for having committed the offence under the sections mentioned above. The learned Chief Judicial Magistrate was himself the complainant and the case was also lodged in his court. Subsequently, he transferred it to the court of Shri R.N.P. Singh, S.D.J.M., Darbhanga for further action. Since one of the offences alleged by the present appellant was under Section 364 of the Indian Penal Code which is exclusively triable by the court of session, the appellant was tried by Shri Sardar Bhagat Singh, Addl. Sessions Judge Ist, Darbhanga who was pleased to pass the impugned judgment of conviction. It is against this judgment that the present appeal has been filed....
3. In this appeal the appellant has contended that the judgment of conviction passed by the learned court below is tad in law and wrong on facts. Material errors of law were committed by the learned court below by recording a finding of guilty against the appellant on the basis of the evidence of the P.Ws. who figure as accused in the case lodged by the appellant. The learned Chief Judicial Magistrate who happened to be the complainant was not examined as a witness in the court and on this basis also the judgment of conviction of the learned court below can not be sustained. On these grounds amongst others it has been contended that this appeal be allowed and the judgment of conviction of the appellant be set aside.
4. The parties have been heard at length with respect to various questions of law and facts raised by them. In the first place it has been submitted on behalf of the Page 0553 appellant that the complaint petition filed against him by the learned Chief Judicial Magistrate was not in terms of law and, therefore, it should not have been entertained. In this connection my attention has been drawn to the definition of the complaint as mentioned in Clause (2)(d) of the Code of Criminal Procedure, 1973(in short the Code) which runs as follows:
2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
(Explanation ommitted).
5. From this definition it would appear that the complaint has to be made to a Magistrate with a view to his taking action under this Code. Annexure 1 is the complaint petition. It starts as follows:
In The Court of Chief Judicial Magistrate, Darbhanga. Name of the Complainant:-Sri Chandranan Singh Chief Judicial Magistrate, Darbhanga.
Its concluding portion runs as follows:
It is therefore deemed necessary in the interest of justice to file complaint against him for lodging false case against the accused of Sadar P.C. Case No. 8(2)/76 with intent to injure them and made false statements on S.A. in view of the order passed by the court of C.J.M., Barbhanga....
Hence this complaint for offences Under Section 182, 193 and 211 IPC for punishment according to law.
6. From the aforesaid it would appear that the Chief Judicial Magistrate is himself the complainant and he has also filed the complaint petition in his own court. Does the law permit it? In this connection a reference may be made to Section 195 of of the Code. This section deals with the prosecution for contempt of Lawful authority of public servants for offences against the public justice and for offences relating to documents given in evidence. It Sub-section (l) runs as follows:
(1) No Court shall take cognizance-
(a)(i) of any offence punishable under Sections 172 to 188 (both inclusive ) of the Indian penal Code (45 of 1860), XXX XX XX XX XX XX
(b)(i) of any offence punishable under any of the following sections of the Indian penal Code (45 of 1960), namely, Section 193 to 196(both inclusive) 199, 200, 205 to 311(both inclusive) and 228, when such offence is alleged to have been committed, in, or in relation to, any proceeding in any Court, or XXX XXX XXX XXX XXX XXX except on the complaint in wrting of that Court, or of some other Court to which that court is subordinate.
7. From the aforesaid it would appear that since in this case the learned Chief Judicial Magistrate was himself the complainant he could not have lodged the Page 0554 complaint petition in his own court. As there is clear provision in law that the complaint petition can also be lodged by some other court to which that court is subordinate. The judicial discipline required that if the Chief Judicial Magistrate himself was the complainant he should not have lodged the complaint petition in his own court. As a matter of fact this complaint petition should have been lodged by some other court to which the court of the Chief Judicial Magistrate was subordinate since the complaint petition to begin with has to be lodged in the court of the Chief Judicial Magistrate. This has not been done.
8. On the other hard from the record of the case it appears that on 16.5.1979 the learned Chief Judicial Magistrate held as follows: -
In view of the fact that false allegations with respect to serious offences have been made, the interest of justice requires that the complainant should be out up on trial. Let a complaint against the complainant Rit Lal Khatway s/o Makai Khatway of Village-Majiam, P.S. Sadar, District- Darbhanga for the offence Under Section 182, 193, 211 I.P.C. be filed accordingly.
It is in consequence to this order that the complaint petition (Annexure-1) as mentioned above has been filed showing the Chief Judicial Magistrate to be the complainant. Referring to Section 2(d) of the Code it is clear that a complaint petition has to be made to a Magistrate with a view to his taking action under the Code that some person has committed an offence. Annexure-1, however shows that it is not addressed to any Magistrate. If we looked to the order sheet dated 26.5.1979 it appears that the learned Chief Judicial Magistrate sent the complaint petition alongwith the case record to Shri R.N.P. Singh for taking cognizance and for proceeding in accordance with law since it has been filed by the Chief Judicial Magistrate himself. As noticed above in such a situation Section 195(i)(b)(i) shows that this complaint petition could have been filed by a court to which the court of the Chief Judicial Magistrate was subordinate since the Chief Judicial Magistrate himself is the complainant. This has not been done. Another important thing to be noted in this connection is that the complaint petition was also filed under Section 182 of the Indian Penal Code but Section 195(iii)(a)(i) of the Code shows that for an offence under Section 182 of the Indian Penal Code the complaint petition in writing has to be filed by the public servant concerned or by some other public servant to which he is administratively the subordinate. In the present case this has not been done since the complaint petition has been filed by the Chief Judicial Magistrate himself. It is well settled that a complaint under Section 195 of the Code must be a regular formal complaint in writing the procedure for which has been given in Section 340 of the Code. If no proper complaint has been filed the conviction will have to be set aside. It is well settled that a regular complaint petition as required by law should be filed under Section 195 of the Code.
9. In the present case as has been noticed above the complaint petition is not addressed to any Magistrate though by the subsequent order as recorded in the order sheet dated 26.5.1979 it was sent by Shri R.N.P. Singh, a Magistrate for taking cognizance. In this connection a reference may be made to Section 340 of the Code which prescribes the procedure in cases mentioned in Section 195 of the Code. Section 340 of the Code has no application to an offence mentioned with Section 195(i)(a) of the Code. For taking action under the provision of Section 340 of the Code a court has to be of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Page 0555 Sub-section (l) of Section 195 which appears to have been committed in or in relation to proceeding in that Court. It is well settled that it is only in glaring cases of deliberate falsehood (amounting to an offence under Sections 193 and 195) where conviction is highly likely that the court should direct prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency, the court orders prosecution in the larger interest of the administration of justice am not to gratify feelings of personal revenge or vinaictiveness or to serve the ends of a private party as has been held in the case of Santosh Singh v. Izhar Hussain and Anr. . It has been further held that the court must be satisfied that there is prima case of deliberate falsehoo on a matter of substance and there is reasonable foundation for the charge and also it is expedient in the interest of justice to file a complaint as has been held in the case of Chajoo Ram v. Radhey Shyam and Anr. .
10. From this it would appear that before lodging a complaint as provided by Section 340 of the Code, the court has to record a finding of any (i) prima facie case and deliberate falsehood on a matter of substance (ii) there is reasonable foundation for the charge and(iii) it is expedient in the interest of justice that a complaint should be filed.
11. In the present case there is no such finding recorded by the learned Chief Judicial Magistrate. He has simply stated in his order dated 16.5.1979 that false allegation with respect to serious offences have been made and the interest of justice requires that the complainant should be put on trial. In the complaint petition also he has recorded that on enquiry under Section 202 of the Code the accusation was found false by the court and, therefore, it was deemed necessary in the interest of justice to file the complaint against the complainant for lodging false case against the accused of Sadar P.S. Case No. 8(2) of 1976. It is thus clear that both the order sheet as also the complaint petition falls short of requirements of law as noticed above. It has been repeatedly held that if any improper complaint petition has been filed under Section 195 of the Code the conviction has to be set aside. Also it has been held that there must be a regular complaint petition. The definition of the complaint has already been noticed above.
12. So far as impugned judgment is concerned, it also suffers various o t he r defects. The learned court below has not properly taken into consideration the fact that most of the P.Ws. examined in this case happened to be accused in the case lodged by the present appellant. From this it would appear that they can be said to b e highly interested witness inimical towards the present appellant and their evidence should not have been accepted without proper scrutiny which is lacking in the present judgment. However, in view of my findings above I do not want to go into detail over the various flaws in the judgment.
13. From the detailed discussions made above it becomes perfectly clear to me that the impugned judgment can not be sustained in the eyes of law. The cognizance taken in this case also appears to be defective and not in terms of law. In this view of the matter, this appeal is fit to be allowed.
14. In the result, this appeal is allowed and the judgment of conviction of the learned court below is set aside. The appellant is acquitted of the various charges framed against him. He is directed to be set at liberty.