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PETITIONER: ABDUL REHMAN MAHOMED YUSUF

       Vs.

RESPONDENT: MAHOMED HAJI AHMAD AGBOTWALAAND ANOTHER

DATE OF JUDGMENT: 15/09/1959

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER WANCHOO, K.N.

CITATION:  1960 AIR   82            1960 SCR  (1) 749  CITATOR INFO :  RF         1976 SC1750  (4)

ACT: Criminal  Procedure--Defamation-Facts stated in  the  charge not   mentioned  in  the  complaint-Separate  complaint   if necessary Code of Criminal Procedure, 1898 (V of 1898),  ss. 198 and 238(3).

HEADNOTE: The  appellant filed a complaint against the respondent  and another under ss 385, 389, 500/109 of the Indian Penal Code. The Trial Court found that there was no conspiracy to defame the appellant or to extort money from him and a charge under S.  500  Indian  Penal  Code only  was  framed  against  the respondent.   It was found that the facts mentioned  in  the charge  were not stated in the complaint.  The  Trial  Court holding that a separate complaint should have been filed  in respect  of  the  offence  with  which  the  respondent  was charged,  acquitted  him.   The  High  Court  rejected   the appellant’s  application  for revision of the order  of  the Trial  Court  with the remark " rejected as no  offence  The appellant appealed by special leave. Held,  that  the  offence charged was  a  separate  offence, although  of the same kind, from the offence in  respect  of which the facts had been stated in the complaint.  For  this separate offence a separate complaint should have been filed in  accordance with the provisions of s. 198 of the Code  of Criminal Procedure.  The Provisions of s. 198 of the Code of Criminal  Procedure  are mandatory.  In appeal  the  Supreme Court could do what the High Court could have done The order of acquittal of the respondent was a nullity, and the proper order should be one of discharge.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 174  of 1956. Appeal  by special leave from the judgment and  order  dated the  April 15, 1955, of the Bombay High Court,  in  Criminal Revision  Application  No. 392 of 1955, arising out  of  the judgment   and  order  dated  December  14,  1954,  of   the

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Presidency  Magistrate, 15th Court Mazagaon, Bombay in  Case No. 532/S of 1953. E.   B. Ghasvala and I. N. Shroff, for the appellant. C.   B.  Aggarwala,  J.  B. Dadachanji,  S.  N.  Andley  and Rameshwar Nath, for respondent No. 1. H.   J. Umrigar, R. H. Dhebar and T. M. Sen, for  respondent No. 2. 95 750 1959.   September  15.   The  Judgment  of  the  Court   was delivered by IMAM J.-A complaint was filed by the appellant on the 4th of December,  1953,  against the respondent Agbotwala  and  one Phirozbai Mazarkhan under ss. 385, 389 and 500/34 and 109 of the  Indian Penal Code in the Presidency  Magistrate’s  15th Court, Mazagoan, Bombay.  The accused were summoned.  As the accused Phirozbai Mazarkhan could not be produced the  trial produced  against  the  respondent  Agbotwala   (hereinafter referred  to  as  the  respondent)  only.   The   Presidency Magistrate  was  not satisfied, on the  evidence,  that  the respondent  and Phirozbai Mazarkhan had conspired either  to defame  the appellant or to extort money from him.  He  also held that there was no evidence to show that the  respondent knew  that  Phirozbai Mazarkhan was committing  on  offence. Accordingly, he declined to frame a charge under ss. 385 and 389134 and 109 of the Indian Penal Code. The Presidency Magistrate, however, framed a charge under s. 500, I.P.C., against the respondent who pleaded not  guilty. He  was  of  the opinion, after  the  consideration  of  the evidence,  that the respondent had on the 13th  of  October, 1952  uttered before Mr. Parab, an advocate, the  defamatory words  with  which be was charged.  He was  further  of  the opinion that s. 198 of the Code of Criminal Procedure  stood in the way of his taking cognizance.  Although the complaint had been made by the person aggrieved, there was no  mention therein of the facts which formed the subject matter of  the offence  with  which the respondent had been  charged.   The complainant, namely, the appellant not having mentioned  the facts   which  constituted  the  offence  with   which   the respondent  had  been charged, the charge had  been  wrongly framed.  The Presidency Magistrate was of the opinion that a complaint  should have been filed in respect of the  offence with which the respondent had been charged.  As that had not been  done  in the recent case the charge had  been  wrongly framed.  He accordingly acquitted the respondent. Against  the  decision  of  the  Presidency  Magistrate   an application in revision was filed by the appellant in 751 the High Court of Bombay which was dismissed with the remark "Rejected as no offence".  Thereafter the appellant obtained special leave from this Court to appeal against the decision of the High Court. When the appellant filed his complaint before the Presidency Magistrate  he  referred  to the nature  of  the  defamatory statement made by Phirozbai Mazarkhan which was contained is the  notice sent to him by Mr. N. K. Parab on behalf of  his client Phirozbai Mazarkhan.  After giving good many  details of  the correspondence which ensued thereon, he referred  to the part played by the respondent in paragraphs 19 to 24  of the  complaint.  Whatever was alleged by the  appellant  was the result of knowledge obtained after enquiries.  The  most important  of these paragraphs, so far as the respondent  is concerned, is paragraph 22 which is as follows:- " I have also come to know as a result of my enquiries  that Accused No. 2 was seen on occasions and at the relevant time

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going  to  the  office of the said  advocate  Mr.  Parab  at Mazagoan  with a woman.  My enquiries further revealed  that Accused  No. 2 was in fact instrumental in  connection  with the aforesaid correspondence and filing a complaint and that though  in  fact  the complaint was filed  in  the  name  of Accused No. 1 Accused No. 2 was the real person behind it." The appellant then finally alleged that Phirozbai  Mazarkhan and the respondent had conspired together and in furtherance of  their common intention attempted to put him in  fear  of injury in body and reputation and in property and that  they did  so  with  the  object  of  committing  extortion.    He accordingly asserted that the accused had committed offences under  ss. 385, 389 and 500/34 and 109 of the  Indian  Penal Code. At  the trial the charge which had been framed  against  the respondent was as follows:- "  I, H. G. Mahimtura, Presidency Magistrate, hereby  charge you Mohomed Haji Ahmed Agbotwala as follows :- "  That  you on or about 13-10-52 at  Bombay  defamed  Abdul Rehman Mohamed Yusuf by making 752 or  publishing  to witness N.K.  Parab  certain  imputations concerning  the said Abdul Rehman to wit that a woman  named Phirozbai Mazarkhan was in his keeping, that he had promised to  marry  her  but did not keep his  promise  and  that  he cheated her of her ornaments worth about Rs. 30,000 by means of  spoken  words  intending to harm or  knowing  or  having reason  to  believe  that such amputations  would  harm  the reputation  of  the  said  Abdul  Rehman  and  you   thereby committed  an  offence punishable under section 500  of  the Indian Penal Code and within my cognizance. " And I hereby direct that you be tried on the said charge. " Charge explained. " Accused pleads not guilty." It  will  be  noticed  that this  charge  asserts  that  the respondent  had uttered defamatory words to the advocate  N. K.  Parab.   It  had  not been asserted as  a  fact  in  the complaint  that  the respondent had uttered  any  defamatory words  to  Mr. Parab.  The utmost which  had  been  asserted therein against the respondent was that he was  instrumental in  connection with the correspondence that  ensued  between the  advocate  Parab and himself and in the  filing  of  the complaint by Phirozbai Mazarkhan against the appellant. It was urged on behalf of the appellant that the  Presidency Magistrate having found that the respondent had uttered  the words  mentioned  in the charge to the  advocate  Parab,  he should  not have acquitted the respondent as s. 198  of  the Code of Criminal Procedure was no real impediment in the way of the Presidency Magistrate.  He had taken cognizance of an offence under s. 500/34 and 109 of the Indian Penal Code  on the  complaint filed by the appellant.  If at the  trial  it appeared  that  an  offence  under  s.  500  only  had  been committed  it was open to the Presidency Magistrate to  take cognizance  of  that  offence without  the  necessity  of  a separate  complaint  in respect thereof. It was  also  urged that if the complaint was read as a whole it indicated  that the  respondent  must have uttered the  words,  the  subject matter of the charge, 753 and  that  those  words were not uttered  to  Mr.  Parab  by Phirozbai  Mazarkhan only.  Finally, it was  suggested  that even if it be assumed that for the charge framed a  separate complaint should have been filed and no cognizance could  be taken for the offence charged in view of s. 198 of the  Code of Criminal Procedure and that the Presidency Magistrate was

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right  in  his  opinion that he had wrongly  framed  such  a charge,  it  was his duty to make a reference  to  the  High Court  for the cancellation of the charge.   The  Presidency Magistrate acted without jurisdiction in proceeding  further with  the  case and recording an order of acquittal  on  the ground  that a complaint stating the facts, upon  which  the present charge could have been framed, had not been filed. On behalf of the respondent it was urged that the Presidency Magistrate  correctly acquitted the respondent as there  was no  complaint for the offence as charged and s. 198  of  the Code  of  Criminal  Procedure  prohibited  him  from  taking cognizance  of the offence mentioned in the charge.  It  was pointed  out  that  the  offence  of  defamation  could   be committed  on  several occasions.  The  charge,  as  framed, referred  to  the  defamatory words  alleged  to  have  been uttered by the respondent to Mr. Parab.  This was a separate offence  though of the same kind from the offence  mentioned in the complaint. It  was  further pointed out that  although  the  Presidency Magistrate had expressed the opinion that the respondent had uttered  the  defamatory words charged to Mr. Parab  he  had given no grounds upon which he came to this conclusion.   If the  entire  evidence and the attending  circumstances  were taken  into consideration it was clear that the evidence  of Parab could not be believed.  Even if it be assumed that the Presidency Magistrate wrongly acquitted the accused this was not  a  case in which the order of acquittal should  be  set aside. The  submissions  made on behalf of the  appellant  and  the respondent were advanced with skill and elaborate  arguments were urged in support of the respective contentions. 754 It  seems  to  us that on the  findings  of  the  Presidency Magistrate,   he  could  not  have  recorded  an  order   of acquittal.  The complaint as filed was not with reference to any  alleged defamatory words uttered by the  respondent  to Mr. Parab.  Although the Presidency Magistrate believed  the evidence of Mr. Parab he was of the opinion that he  wrongly framed  the charge as the complaint did not state the  facts which constituted the offence with which the respondent  had been   charged.    In  such  a  situation   the   Presidency Magistrate,  instead  of proceeding to record  an  order  of acquittal,  should have brought the matter to the notice  of the  High Court so -that the error might be  corrected.   As the  matter is before us in appeal we can do that which  the High Court could have done. In  our opinion, the offence charged was a separate  offence although  of  the same kind from the offence in  respect  of which the facts has been stated in the complaint.  For  this separate offence a complaint should have been filed and  the provisions  of  s.  198 of the Code  of  Criminal  Procedure complied  with.   In  our opinion  the  provisions  of  that section  are  mandatory.   Even in s. 238  of  the  Code  of Criminal  Procedure the importance of the provisions  of  s. 198  or s. 199 of the Code is emphasised.  Cl. (3)  of  this section  specifically  states that the  provisions  of  this section  do  not  authorise the  conviction  of  an  offence referred to in s. 198 or 199 when no complaint has been made as  required by these sections.  The  Presidency  Magistrate wrongly framed the charge, as on the record, when in respect of the offence charged there was no complaint filed and  the facts as stated in the complaint actually filed did not make out the offence as charged. It  is clear from the findings of the Presidency  Magistrate that the offence of conspiracy and abatement, as alleged  in

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the complaint actually filed, had not been established.   He should  have then discharged the accused and refrained  from framing  a charge for an offence in respect of  which  there was  no  complaint before him as required by s. 198  of  the Code of Criminal Procedure.  He had no jurisdiction to frame the   charge  he  had  framed.   His  order  of   acquittal, therefore, must be regarded as a nullity. 755 In  this appeal this Court can do what the High Court  could have  done.  We accordingly allow the appeal and  set  aside the  order  of acquittal made by the  Presidency  Magistrate but,  on  the finding of the Presidency Magistrate  that  no offence of conspiracy or abetment arising therefrom bad been established,  we  direct  that  the  present  complaint   be dismissed.  The respondent is accordingly discharged. Appeal allowed.