Madras High Court
R.K.Selvarajan Chettiar @ vs S.Murugavel on 22 October, 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22/10/2002 CORAM THE HONOURABLE MR.JUSTICE A.PACKIARAJ Crl.O.P.No.16790 of 2001 and Crl.M.P.No.5796 of 2001 R.K.Selvarajan Chettiar @ Raghavan Chettiar .. Petitioner. -Vs- S.Murugavel .. Respondent. !For Petitioner: Mr.V.Raghavachari ^For Respondent: Mr.D.Veerasekaran Prayer: Petition filed to set aside the order of the learned Additional Sessions Judge @ Pondicherry made in Cr.R.P.No.1 of 2001 dated 20.07.2001, confirming the order of the learned Judicial Magistrate-I in Crl.M.P.No.1803 of 2001 in C.C.No.338 of 2000 dated 16.05.2001. :O R D E R
This petition has been filed against the orders of the Additional Sessions Judge, Pondicherry, passed in Crl.R.P.No.1 of 2001, dismissing the revision, filed against the orders passed in Crl.M.P.No.1803 of 2001 in C.C.No.338 of 2000, on the file of the Judicial Magistrate-I, Pondicherry, who had dismissed the application for discharge filed by the petitioner herein, against the prosecution of offences under Section 211, 500 and 506(2) IPC.
2.Since the original petition itself, filed by the petitioner, was against the cognizance taken by the Magistrate in relation to the private complaint filed by the respondent herein and the same having been dismissed, against which a revision was filed before the Court of Sessions, which had also confirmed the orders of the learned Magistrate, this Court could have easily disposed of the matter by stating that in terms of 399(3) a petition in the nature of a second revision is not maintainable, as two courts have already gone into the preliminary objection taken by the petitioner and dismissed those applications. However, it is seen that in order to get away from the bar under Section 399(3) IPC, this petition has been filed under Section 482 Cr.P.C, which amply establishes the fact that what cannot be directly done is sought to be indirectly done by invoking Section 482 Cr.P.C.
3.Nevertheless, since the counsel persisted in his argument stating that the Magistrate had taken cognizance on the private complaint, which is in flagrant violation of laws and this is one of the exceptional cases, where the inherent powers of the High Court has to be invoked to rectify such mistakes, I consider it necessary to go into the facts of the case.
4. It may not be very relevant to go into the facts of the case, suffice to state for the purpose of disposing of this application that the petitioner had earlier given a complaint to the Inspector General of Police, Pondicherry on 21.8.2000, against the respondent herein alleging that the respondent has forged his signatures and impersonated him in the District Registrar's Office at Pondicherry and thereby executed five gift Settlement Deeds in his favour. The said matter was referred by the Inspector General of Police to the CID of Police, Pondicherry, who summoned the respondent and conducted an enquiry, which is pending. In addition to this complaint, the petitioner had also given false message before the private TV Channel called Sky Sat, which has telecasted the same in Pondicherry on 24.8.2000, 26.8.2000 and 27.8.2000 and thereby the petitioner is said to have wilfully given a false complaint to the police, thereby committed offences under Section 211 IPC as well as under Section 500 IPC, defaming the respondent through his message in the media, which are false to his knowledge and wantonly made. Hence the respondent herein had filed a private complaint before the Court of Sub Divisional Judicial Magistrate, Pondicherry on 06.09.2000, who after taking sworn statement and examining witnesses under Section 200 Cr.P.C had taken cognizance of the complaint under Section 211, 500 and 506 (2) IPC.
5.It is against this complaint that the petitioner had filed an application under Section 245 Cr.P.C, before the concerned Magistrate to discharge him of the offences. The substantial grounds raised by him were two in number; firstly being that the learned Magistrate erred in taking cognizance for of an offence under Section 211 IPC, since according to the learned counsel, it is only on the basis of a complaint by the Court, cognizance could be taken in view of Section 195(1)( b) and secondly, the Magistrate cannot take cognizance of an offence under Section 500 IPC, since a complaint to the police is absolutely privileged. However, the learned Magistrate dismissed the said application, against which the petitioner filed a revision before the Court of Sessions, which, after considering the elaborate contentions advanced by both parties, dismissed the revision, holding that the Magistrate was perfectly justified in taking cognizance of offences under Section 211, 500 IPC and 506 (2) IPC.
6.Here again in this petition also, the petitioner has raised the same points. The learned counsel for the petitioner argued that the learned Magistrate erred in taking cognizance of an offence under Section 211 IPC, in view of the clear bar enshrined in Section 195(i)(b) Cr.P.C. This ground has merely to be stated to be dismissed, since Section 195(i)(b) would apply only when there was a proceeding in the Court, since the language of the Section is abundantly clear, which reads as follows:
Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence:
(1)No Court shall take cognizance
(a) ......
(b) (i) of any offence punishable under any of the following sections of IPC, namely, sections 193 to 196(both inclusive, 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court -
except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
7.Therefore, it is clear from the above that a complaint of a Court is necessary, only if and when the offence is committed in any proceedings before the Court, but it does not take away the right of an individual to file a complaint under this offence, if the subject matter has not come to the Court at all. The learned counsel for the petitioner then gave up this argument and made an alternate argument stating that the complaint given by the petitioner to the police, though at a later stage, was referred on the ground that it was civil in nature, the concerned officer has not given any finding that the complaint was false. In other words, the learned counsel would submit that the complaint was pending investigation at the time of the present complaint being filed by the respondent before the Court and the petitioner's complaint to the police has not reached the finality and that at any rate it has not been found to be false. In the absence of the consequences of the investigation and in the absence of any clear finding that it is false, a complaint for an offence under Section 211 IPC is not made out.
8.In support of his argument advanced above, the learned counsel cited a number of decisions of various Courts. In my opinion, I do not think that any of them would have any relevance to the present facts and the points raised before this Court. However, I would like to refer to the decisions stated by the counsel for the petitioner.
9.The first of the decision relied on by the learned counsel is the judgment of the Kerala High Court reported in Ahmed Kutty Vs. State of Kerala (AIR 1963 Kerala 152), wherein it has been stated that the mere statements of facts or communications of suspicions cannot amount to institution of criminal proceedings within the meaning of Section 211 IPC and His Lordship has went on to hold that the ingredient of the offence is to the effect that the prosecution is bound to prove that the charge was wilfully false to the knowledge of the maker of the charge. This is a case where the accused was convicted after preliminary trial and then the learned Judge has come to the conclusion that the prosecution was not able to prove that the statement made by the accused to the police was not wilfully made and consequently the accused was acquitted. But the case on hand before us is one at the stage of dawn, wherein the state of establishing the falsity has not reached.
10.The next decision referred to by the learned counsel is the judgment of the Nagpur High Court reported in Ganpatram Dinaram Agarwal Vs. Mt.Rambai (AIR (37) 1950 Nagpur 20), which also relates to a complaint given to a police and a prosecution was launched for an offence under Section 500 IPC, wherein the accused after trial was convicted. In the said case, the accused has not referred the name of the complainant, in the First Information Report and during the course of the investigation, he had stated that he entertained some suspicion against the complainant and therefore, His Lordship while appreciating evidence let in by the prosecution has come to a conclusion that merely having a suspicion against a person cannot, in the eye of law, be stated to falsely charging a person of having committed the offence and therefore, had acquitted the accused in the said case.
11.The third decision referred to is the judgment reported in Abdul Hakim Khan Chaudhuri Vs. Emperor (AIR 1932 Cal 511), which relates to a case where a complaint had been given by the accused in the First Information Report against the complainant for an offence under Section 211 IPC. The same was set aside on the ground that a complaint given to a police officer pertaining to a non cognizable offence, does not attract the provisions of Section 211 IPC, so as to say that it does not amount to falsely charging that person, since in a non cognizable case, the police officer has no power to file a prosecution, which would result in institution of criminal proceedings.
12. Yet another decision cited by the learned counsel is the judgment reported in In re Subban Samban (AIR 1944 Madras 391), wherein a complaint has been given to a superior officer and His Lordship Justice Kuppuswami Iyer,J had held that Section 211 IPC is not made out, since it was only a report to his superior officer, in the discharge of his duties and that he did not sent it with the intention to set the criminal law in motion. But in our case, it is the intention of the complainant, who had given a report to the police solely with a view to take action against him and initiate criminal proceedings against him and consequently the aforesaid decision would not apply at all.
13.The learned counsel would further rely on a decision of the Apex Court reported in Santokh Singh Vs. Hussain and another (AIR 1973 SC 2190), wherein Their Lordships have interpreted the language used in Section 211 IPC namely false charges does n ean giving false evidence and in the said case, it was a proceeding before a criminal Court and the High Court had given a direction to the Registrar to file a complaint under Section 211 IPC because the accused had in the said case wrongly identified a person in the Identification parade. Therefore, their Lordships have held that a wrong identification in the High Court would not come under the category of false charge being made and consequently, set aside the order and in fact Their Lordships have held that since it was a proceedings in Court and even if the wrong identification would attract the provisions of Section 211 IPC, the Court has to decide whether there is in fact a false accusation and finally whether it is expedient in the interest of justice on the facts and circumstances of the present case to direct a complaint to be filed under Section 211 IPC. Since this being a case pending in the criminal Court, I do not think that it has any relevance to the facts of the present case before us.
14.The next decision cited by the learned counsel is the judgment reported in Haridas Das and another Vs. State of West Bengal and Others (1964 7 SCR 23), wherein an application was filed for contempt of Court against the erring party. The question that arose was whether Section 211 IPC would apply, since the person who initiated the contempt proceedings can be termed to be a person instituting a criminal proceedings and ultimately Their Lordships of the Supreme Court have answered the question in the affirmative and have maintained the prosecution. This decision in no way supports the case of the petitioner.
15.The learned counsel would also cite a decision of the Madras High Court reported in M.Neelakantadas Vs. M.Gopinathan (1995-2-L.W. 68), a judgment in a second appeal, wherein the plaintiff had filed a suit for damages against the defendant for having maliciously prosecuted him. The question that arose there was whether it was an offence under Section 211 IPC or 182 IPC and it was held that the defendant had given a false information without any justification and had only committed an offence under Section 182 IPC and not 211 IPC. Consequently, I feel that this decision does not support the case of the petitioner.
16.The learned counsel would further cite a decision reported in Empress of India Vs. Abdul Hasan (ILR 1 All. 498[1877]). But to my surprise the said decision cited by him though not read in Court, but circulated is directly against his arguments. In the said case one Abdul Hasan had been to the Police station and gave a complaint against Ser Mal of having stolen certain surgical instruments. After investigation was over it was found that Ser Mal has not committed the offence. Hence a complaint under Section 211 IPC was instituted against him and ultimately after the trial he was convicted for two years imprisonment, against which he had filed an appeal and the learned Sessions Judge had acquitted him holding that the charge of false complaint could not be sustained because the Magistrate had not entered in to the charge of theft and in support of it His Lordship in the said judgment has relied upon the decision reported in The Queen Vs. Subbanna Gaundan (1 Mad. HCR 30). But then it was found that the said case referred in that decision was the resultant of a criminal trial pending before the concerned Magistrate. But in the case cited supra, there was no trial pending on that date before any criminal Court and consequently, the High Court had held that the acquittal was wrong and ultimately maintained the conviction and sentence passed by the Magistrate against Abdul Hasan.
17.After the elaborate arguments advanced by the learned counsel and after going through all the decisions cited by him, in my view, I am not in agreement with his contention that Section 195(1)(b) can ever come to his rescue and he fairly gave up the point during his argument, since there was no proceedings before any Court, which would authorise only that Court to give a complaint.
18.The next argument is also not equally appealable to me, since he was not able to support his argument with any authorities that before a Court could take cognizance of an offence under Section 211 IPC, the investigation should have reached the finality or that a complaint to a police officer under Section 500 IPC is also absolutely privileged, they would come under the exception.
19.As against this, there is a direct decision which deals with this point and if I say so with certain amount of force that the decision of the Apex Court reported in M.L.Seti Vs. R.P.Kapur (AIR 1967 SC 52 8), is directly on the point and I need not refer to any other decision at all, since in my opinion it applies in all fours. In the said case before the Apex court, on 10.12.1958 the appellant (who was later tried for an offence under Section 211 IPC) had filed a complaint before the Inspector General of Police, Chandigarh against R.P.Kappor charging them with commission of offence punishable under Section 420, 114 and 120-B IPC. On 11.4.1959, when the matter was still under investigation, the respondent (the accused in the police complaint) filed a complaint in the Court of Judicial Magistrate I Class, Chandigarh against the appellant for an offence under Section 211 IPC among other offences. However the Supreme Court accepted that a complaint to the police would attract the provisions of Section 211 IPC. But they went into the question as to whether the cognizance taken by the Magistrate before the conclusion of the investigation was right or wrong. That appears to be the question put forward before this Court in the present case also. Since it is not the case of the petitioner that an offence under Section 211 IPC has not been made out or disputed.
20.The contention is relevant only to the fact that neither the police, nor the Court have given a finding that it is a false complaint. Can the Magistrate then take cognizance of a complaint on a private complaint ? The identical point has been answered at Paragraph 9 of the decision of the Apex Court cited supra, wherein their Lordships have said that the important aspect that has to be kept in view is that the point of time at which the legality of the cognizance taken has to be judged, is the time when cognizance is taken under Section 190 Cr.P.C, which applies to try such cases.
21.The only restriction placed for the Magistrate to take cognizance of such an offence under Section 211 IPC is in view of Section 195(1 )(b) of Cr.P.C and that restriction comes into operation only when there is a proceeding in the Court, but when there is no proceeding at all before any Court, the Magistrate is perfectly justified in taking cognizance of the offence, even though the matter is pending investigation.
22.One of the main contention raised on behalf of the appellant in the case cited supra was that can a private person file a complaint under Section 211 IPC when the First Information Report is under investigation, relating to a cognizable offence and according to the learned counsel who appeared on behalf of the appellant in the said case, even after the conclusion of the investigation and even after the matter has been referred, the referred report will have to be accepted by the Magistrate and when he accepts the order of the referred notice, it amounts to a Judicial Order and consequently, it is only the Court that is empowered to give a complaint. But however, Their Lordships of the Apex Court have stated in the said case that since cognizance had already been taken, while the matter was pending investigation and the matter had not reached its finality on the police filing a report under Section 173 Cr.P.C and the Magistrate acting in his judicial capacity, the cognizance already taken by the Magistrate is not illegal and consequently has upheld it. In my opinion, the said decision squarely applies to the facts of this case, wherein admittedly a matter was under investigation and the Judicial Magistrate has taken cognizance of the matter before any judicial order has been passed and consequently, I am not in agreement with the points raised by the petitioner.
23.At this juncture, I would like to add that as far as the complainant is concerned, he does not get his right only on the police officer or the court giving a finding that the complaint is false but in my opinion, the cause of action arises at the time and on the day when he comes to know (to his knowledge) that the complaint is false and this does not depend upon any other forum giving a finding that it is false. Therefore, in such circumstances, the complainant gets a vested right, the moment he becomes aware that a false complaint has been given against him and he need not necessarily wait till the police officer or the court gives a finding that the complaint is false.
24. The other contention raised by the learned counsel was that if such a restriction has been allowed in every complaint pending before the police officers, the respective accused in the said complaint would file a complaint before the Court of the concerned Magistrate for an offence under Section 211 IPC and it would lead to an anamolous position. As a matter of fact, the same argument was even found advanced in M.L.Seti's case before the Apex Court, wherein Their Lordships have held that it is unnecessary to interpret the law in such a way so as to necessarily avoid such a situation. There appears to be no defect, if both the cases are simultaneously taken and tried together in the same Court, one after the other and the Apex Court had repelled the argument. In view of the said observation by the Apex court, I am not in agreement put forward by the learned counsel.
25.The last of the contention raised by the learned counsel is that a complaint to the police is absolutely privileged and an offence under Section 500 IPC would not be made out. I am not in agreement with the argument advanced by the learned counsel, since the Madras High Court in 1. Usha Adelin, 2. Son Jayarajan, 3.Russel, 4.Lakshmanan & 5.Mariadoss Vs. Sathiadoss (1990 LW CRL 320), wherein His Lordship Justice Arunachalam has elaborately gone into the question and has held that the complaint given to the police officer would at best come under the exceptions and it is only in the Court of the trial, the exceptions has to be pleaded and there is no absolute privilege as far as the complaint given to the police officer, but is only a qualified privilege and consequently, there is no merit in this argument.
26. For the foregoing reasons, I feel that the learned Magistrate is perfectly justified in taking cognizance of the case and this petition accordingly, deserves to be dismissed and is dismissed. Consequently, connected Crl.M.P is closed.
csh 22-10-2002 Index:Yes Internet:Yes To
1.The Judicial Magistrate Pondicherry.
2.The Additional Sessions Judge Pondicherry.