http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: BASIR-UL-HUQ AND OTHERS

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL.NUR-UL-HUDAV.THE STATE OF WEST BENG

DATE OF JUDGMENT: 10/04/1953

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND BOSE, VIVIAN JAGANNADHADAS, B.

CITATION:  1953 AIR  293            1953 SCR  836  CITATOR INFO :  RF         1958 SC 124  (5)  R          1962 SC 876  (15)  R          1966 SC 523  (5)  APR        1966 SC1775  (5)  RF         1971 SC1708  (13)  RF         1971 SC1935  (8)

ACT: Criminal  Procedure  Code, 1898,  ss.  190,195-Indian  Penal Code,  1860, ss. 182, 297, 500-Report to police  alleging  X had  killed his mother - Trespass with police  on  cremation ground-Report  found  false-Complaint by X for trespass  and defamation-Maintainability-Jurisdiction  to take  cognizance of  offence-Whether  barred by s.  195,  Criminal  Procedure Code. 837

HEADNOTE: The  accused lodged information at a police station  that  X had  beaten and throttled his mother to death and  when  the funeral  pyre was in flames he entered the cremation  ground with  the  police.   The  dead body  was  examined  and  the complaint was found to be false.  On the complaint of X, the accused was charged with offences under section 297,  Indian Penal  Code  (trespass  to  wound  religious  feelings)  and section  500    Indian  Penal  Code  (defamation).   It   was contended  that, as the complaint disclosed  offences  under sections 182 and 211, Indian Penal Code, the Court could not take  cognizance  of the case except on a complaint  by  the proper authority under section 195, Criminal Procedure Code: Held,  (i)  that  the facts which  constituted  the  offence tinder   section   297  were  distinct  from   those   which constituted  an  offence under section 182, as  the  act  of trespass was alleged to have been committed after the making of the false report, so section 195 was no bar to the  trial of the charge under section 297. (ii)As  regards  the  charge under section  500,  where  the allegations  made  in a false report disclose  two  distinct offences, one against a public servant and the other against a  private  individual, the latter is not  debarred  by  the provisions  of  section 195, Criminal Procedure  Code,  from

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

seeking redress for the offence committed against him. Satish Chandra Chakravarti v. Ram Dayal De (24 C.W.N.  982); Hori Ram Singh v. The Crown [1939] F.C.R. 139 referred to. Section 195 cannot however be evaded by the device of charg- ing a person with an offence to which that section does  not apply  and  then convicting him of an offence  to  which  it does,  on the ground that the latter offence is a minor  one of  the same character, or by describing the offence as  one punishable  under  some other section of  the  Indian  Penal Code, though in truth and substance the offence falls in the category  of  sections mentioned in  section  195,  Criminal Procedure Code.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  26 and  27 of 1952.  Appeals under Article 134 (1) (c)  of  the Constitution  of  India from the Order dated  4th  February, 1952,  of  the Calcutta High Court (CHAKRAVARTTI  and  SINHA JJ.) in Criminal Revision Nos. 102 and 103 of 1952. S.C. Das Gupta and A.K. Dutt for the appellants. B. Sen for the respondent. Arun Kumar Datta for the complainant. 1953,  April 10.The Judgment of the Court was  delivered  by MAHAJAN J. 838 MAHAJAN  J.--These  two  appeals  arise  in  the   following circumstances: One Mokshadamoyee Dassi, mother of  Dhirendra Nath  Bera,  died  some  time in  the  evening  of  the  3rd September, 1949.  At the moment of her death Dhirendra  Nath was not present at the house.  On his return at, about  8-30 p.m. he along with some other persons took the dead body  to the  cremation  ground.   It appears that  Nurul  Huda,  the appellant  in  Criminal Appeal No. 27 of, 1952,  had  lodged information  at  the  police  station  to  the  effect  that Dhirendra Nath had beaten and throttled his mother to death. When  the funeral pyre was in flames, Nurul Ruda along  with the  appellants  in  Criminal  Appeal No.  26  of  1952  and accompanied  by the sub-inspector of police arrived  at  the cremation ground.  The appellants pointed out the dead  body and  told the sub-inspector that the complainant had  killed his  mother by throttling her and that there were  marks  of injury  on  the  body  which they could  show  to  the  sub- Inspector if he caused the body to be brought down from  the pyre.  At their suggestion the fire was extinguished and the dead  body  was  taken down from the pyre in  spite  of  the protests  from  the complainant.  On an examination  of  the dead  body it was found that there were no marks  of  injury on. it and the appellants were unable to point out any  such marks.  The body was however sent for postmortem examination which  was  held on 5th September, 1949, but no  injury  was found  on  the person of the  deceased.   The  sub-inspector after  investigation  reached the conclusion  that  a  false complaint had been made against Dhirendra Nath. On the 24th September, 1949, Dhirendra Nath filed a petition of  complaint in the Court of the Sub-Divisional Officer  of Uluberia  in the district of Howrali against the  appellants in  both the cases and one Sanwaral Huq.  It was alleged  in the  complaint that the information given by Nurul  Huda  to the  police  was  false,  that  Nurul  Huda  and  the  other appellants  had  made imputations mala fide  out  of  enmity against him with the intention of harming his reputation and that to wound his religious feelings they had trespassed on 839

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

the  cremation ground and caused the dead body to  be  taken out by making false imputations. The  appellants  were tried before Shri  R.  Ray  Choudhury, Magistrate  1st class, Uluberia, on charges  under  sections 297 and 500, Indian Penal Code.  The charges fraimed against them were in these terms :- "(1) That you on or about the 17th day of Bhadra, 1356  B.S. at Panshila, P. S. Shyampur, with the intention of  wounding the religious feelings of P. W. 1, Dhirendra Nath Bera,  the complainant,  committed trespass upon the  cremation  ground where  the  funeral rites of the mother of  the  complainant were  being  performed  and  thereby  committed  an  offence punishable under section 297, Indian Penal Code, and  within my cognizance; (2)  That  you oil or about the 17th day of Bhadra, 1356  B. S.  at Panshila, P. S. Shyampur, defamed P. W. 1,  Dhirendra Nath  Bera,  the complainant, by making  imputation  to  the effect  that he had killed his mother intending to harm,  or knowing  or  having reason to believe that  such  imputation would  harm  the reputation of the complainant  and  thereby committed  an offence punishable under section  500,  Indian Penal Code, and within my cognizance." None  of these charges relates to the falsity of the  report made  to the police or contains facts or  allegations  which disclose  an offence under section 182, Indian  Penal  Code. The  charge  under  section 297, Indian Penal  Code,  was  a distinct  one and concerned an act of the accused  committed after  the giving of the report.  The charge  under  section 500   related  to  defamatory  and   libellous   allegations contained in the report itself. It  was contended on behalf of the defence that  Nurul  Huda had  lodged information with the police tinder a  bona  fide belief  created in his mind on the statement of  one  Asiram Bibi  and that none of the accused persons had  entered  the cremation ground as alleged by the complainant, 840 The  magistrate  held  the charges proved  against  all  the appellants  and convicted each of them under sections 7  and 500, Indian Penal Code.  Each of the appellants was  awarded three  months’  rigorous imprisonment on  the  charge  under section 297 and each of them was sentenced to a fine of  Rs. 100 on the charge under section 500. The  appellants went up in appeal to the Sessions  Judge  of Howrah  who by his order dated 31st July, 1,950,  set  aside the  convictions and sentences and acquitted them.  He  held that  on the facts stated in the complaint the only  offence that could be said to have been committed by the  appellants was  one  under section 182 or section 21  1,  Indian  Penal Code, and that a court was not competent to take  cognizance of  those  offences  except  on  a  complaint  by  a  proper authority  under  the provisions of  section  195,  Criminal Procedure Code.  Against the acquittal order an  application in revision was preferred to the High Court.  This  petition came up for hearing before a Bench of the High Court (K.  C. Das  Gupta  and  P. N. Mookerjee JJ.).  The  learned  judges reached  the  conclusion that on the facts  alleged  in  the petition of complaint distinct offences under sections  182, 297  and 500, Indian Penal Code, had been  disclosed.   They however  referred  for the decision of the  Full  Bench  the following question:- "If  the facts alleged in a petition of complaint, or in  an information   received  by  the  magistrate,  on   which   a magistrate  can  ordinarily take cognizance  of  an  offence under  section  190, Criminal Procedure  Code,  disclose  an offence   of  which  cognizance  cannot  be  taken  by   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

magistrate because of the special provisions of section 195, or  196, or 196-A, or 197, or 199, Criminal Procedure  Code, is the magistrate also debarred because of this from  taking cognizance of other offences disclosed by the facts alleged, which  are  not  in any way affected by  the  provisions  of section  195,  or  1.96, or 196-A or 197  or  199,  Criminal Procedure Code." The  Full  Bench  answered  the  question  referred  in  the negative.  In respect of the conviction under 841 section 297, Indian Penal Code, the learned Judges said that there as nothing in sections 195 to 199, Criminal  Procedure Code,  which  could in any way bar the  prosecution  of  the appellants under that section, as it could in no way be said that  it  arose out of the facts which would  constitute  an offence  under  section 182, or section  211,  Indian  Penal Code.   On  the  other  hand,  it  arose  from  an  entirely different set of facts, namely, the trespass by the opposite parties  in the burial ground and the removal of the  corpse from  the lighted funeral pyre.  With regard to the  offence under   section  500,  it  was  observed  that  though   the prosecution   for   defamation  was  based  on   the   false information  given to a public officer,  that  circumstance, however,  was no bar for the prosecution of  the  appellants under  that  section.  In  the  result  the  application  in revision  was allowed, the order of acquittal was set  aside and the sessions judge was directed to re-hear the appeal on the merits. After  remand  the appeal was heard on the  merits  and  was dismissed.   The  convictions and sentences  passed  by  the magistrate  were  confirmed.   Against  the  order  of   the sessions  judge  the appellants went up in revision  to  the High Court but these applications were summarily  dismissed. The  appellants  thereupon applied to the High Court  for  a certificate  under article 134 (1) (c) of  the  Constitution for  leave to appeal to this Court.  In the application  the order  of  the  Full  Bench  dated  22nd  June,  1951,   was challenged.   This application was opposed on behalf of  the complainant on the ground that the interim order of the Pull Bench  not  having,  been  appealed  against  could  not  be challenged  at that stage.  Thus two  substantial  questions were argued in the leave application, namely, 1.whether  it  was  open  to the  accused  to  question  the correctness  of the Full Bench decision, it not having  been appealed from when it was passed, and, 2.whether the point decided by the Full Bench in itself  was of  sufficient  importance  to justify  the  granting  of  a certificate under article 134(1)(c). 109 842 As  the  judgment of the Full Bench did  not  terminate  the proceedings but merely directed the appeal to be reheard, it was  held that the petitioners could not appeal from  it  at that time and it was open to them to raise the point at this stage.   The  second question was considered  of  sufficient importance  to  justify  the grant of leave  and  leave  was accordingly granted. The learned counsel for the respondent raised a  preliminary objection  in order to canvass the first question  mentioned above,   while  the  learned  counsel  for  the   appellants canvassed the question of the correctness of the decision of the  Full  Bench  on  its merits.   He  contended  that  the magistrate  had  no jurisdiction to take cognizance  of  the complaint  under section 500 and section 297,  Indian  Penal Code,  as the facts disclosed constituted an  offence  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

section  182  which offence could not be tried except  on  a complaint by a public servant. Section 195, Criminal Procedure Code, on which the  question raised  is  grounded, provides, inter alia,  that  no  court shall  take  cognizance  of  an  offence  punishable   under sections  172  to  188, Indian Penal  Code,  except  on  the complaint  in  writing of the public servant  concerned,  or some  other public servant to whom he is  subordinate.   The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an  of-fence under  section 182 can be taken cognizance of.  It does  not further  provide that if in the course of the commission  of that  offence  other distinct offences  are  committed,  the magistrate is debarred from taking cognizance in respect  of those offences as well.  The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute  an offence against the authority of  the  public servant  or public justice, and on the other hand, they  may also  constitute  the offence of defamation  or  some  other distinct  offence.   The  section does not per  se  bar  the cognizance  by  the magistrate of that offence, even  if  no action  is  taken by the public servant to  whom  the  false report has been made.  It was however argued that if on  the same facts an 843 offence  of  which  no cognizance can  be  taken  under  the provisions  of section 195 is disclosed and the  same  facts disclose  another  offence  as well  which  is  outside  the purview  of  the  section and  prosecution  for  that  other offence  is taken cognizance of without the requirements  of section  195 having been fulfilled, then the  provisions  of that section would become nugatory and if such a course  was permitted  those  provisions  will stand  defeated.  It  was further said that it is not permissible for the  prosecution to  ignore the provisions of this section by describing  the offence as being punishable under some other section of  the Penal Code. In  our  judgment,  the contention  raised  by  the  learned counsel  for the appellants is without any substance so  far as  the  present  case is concerned.   The  charge  for  the offence  under section 297, Indian Penal Code, could  in  no circumstance, as pointed out by the High Court, be described as  falling  within  the purview of  section  195,  Criminal Procedure  Code.   The act of trespass was alleged  to  have been committed subsequent to the making of the false  report and  all the ingredients of the offence that have been  held to have been established on the evidence concern the conduct of  the appellants during the post-report period.  In  these circumstances,  no serious contention could be  raised  that the  provisions of section 195 would stand defeated  by  the magistrate having taken cognizance of the offence under that section. As regards the charge under section 500, Indian Penal  Code, it  seems fairly clear both on principle and authority  that where  the allegations made in a false report  disclose  two distinct  offences, one against the public servant  and  the other  against  a  private individual,  that  other  is  not debarred  by  the  provisions of section  195  from  seeking redress for the offence committed against him.  Section 499, Indian  Penal  Code, which mentions the ingredients  of  the offence  of defamation gives within defined limits  immunity to  persons making depositions in court, but it is now  well settled that immunity is a qualified one and is not absolute as it is in English law.  Under section 198, 844

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

Criminal  Procedure  Code,  a complaint  in  respect  of  an offence  under section 499, Indian Penal Code, can  only  be initiated  at  the instance of the person defamed,  in  like manner as cognizance for an offence under section 182 cannot be  taken  except at the complaint of  the  public  -servant concerned.  In view of these provisions there does not  seem in  principle  any  warrant  for  the  proposition  that   a complaint  under section 499 in such a situation  cannot  be taken  cognizance of unless two persons join in  making  it, i.e.,  it can only be considered if both the public  servant and  the  person defamed join in making  it,  otherwise  the person  defamed  is without any redress.   The  statute  has prescribed   distinct  procedure  for  the  making  of   the complaints  under these two provisions of the  Indian  Penal Code  and when the prescribed procedure has  been  followed, the  court  is  bound  to take  cognizance  of  the  offence complained of The decided cases fully support this view and our  attention has  not been drawn to any case which has taken  a  contrary view  as  regards offences under section 500,  Indian  Penal Code.   In Satish Chandra Chakravarti v. Ram Dayal  De  (1), five  judges  of  the Calcutta High  Court  considered  this question and held that where the maker of a single statement is guilty of two distinct offences, one under section 21  1, Indian  Penal  Code,  which is  an  offence  against  public justice, and the other an offence under section 499, wherein the personal element largely predominates, the offence under the  latter section can be taken cognizance of  without  the sanction  of the court concerned, as the Criminal  Procedure Code  has  not  provided for sanction of  court  for  taking cognizance  of  that  offence.  It was  said  that  the  two offences  being fundamentally distinct in nature,  could  be separately  taken cognizance of. That they are  distinct  in character  is patent from the fact that the former  is  made non-compoundable, while the latter remains compoundable;  in one   for  the  the  initiation  of  the   proceedings   the legislature requires the sanction of the court under section 195, (1)  (1920) 24 C.W.N. 982. 845 Criminal Procedure Code, while in the other, Cognizance  can be  taken  of  the offence on the complaint  of  the  person defamed.   It could not be denied that the accused could  be tried  of charges under sections 182 and 500,  Indian  Penal Code,  separately  on  the same facts  provided  the  public servant  as well as the person defamed made complaints.   If that  is  so,  there is no reason why one  cannot  be  tried independently  of the other so long as the  requirements  of each are satisfied.  Harries C. J. while delivering the Full Bench decision in question examined all the earlier cases of the  Calcutta  High Court and observed that where  upon  the facts  the commission of several offences is disclosed  some of  which require sanction and others do not, it is open  to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the  provisions of section-is 195 to 199 of the Code of Criminal  Procedure. Sections  195  to  199  deal with  the  requisites  for  the prosecution of certain specified offences and the provisions of  those sections must be limited to prosecutions  for  the offences actually indicated.  If it was the intention of the legislature  to  make sanctions or complaints in  a  certain form necessary for the prosecution of all offences disclosed by  facts  which  would give rise to  any  of  the  offences specifically  indicated in these sections,  the  legislature

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

could have said so but it did not. Recently  this matter was canvassed before a Full  Bench  of the Madras High Court and it was held that in such cases  it was  open  to the party defamed to  take  proceedings  under section  499, Indian Penal Code, without the court filing  a complaint  in  accordance with the provisions laid  down  in section  195.   There the question was whether  the  alleged defamer  who  had given false evidence in a court  could  be prosecuted  under section 499, Indian Penal Code, without  a complaint  by the court before whom fie gave  evidenice  and the  question  was  answered in  the  affirmative  after  an exhaustive review of the decided cases of the different High Courts in India.  It was said that if the offence of 846 giving   false  evidence  in  a  judicial   proceeding   and defamation do not belong to the same genus but are  distinct and  separate in their characteryistics and ingredients,  it was  difficult  to perceive any serious  inhibition  by  the Criminal  Procedure Code for initiation and trial of one  of these   offences   independently  of  anterior   resort   to fulfillinig   the  conditions  necessary  to   comnience   a prosecution  for  the other.  These  observations  have  apt application  to  the present case.  The ingredients  of  the offence  under  section  182  cannot  be  said  to  be   the ingredients  for the offence under section 500.  Nor can  it be   said  that  the  offence  relating  to   giving   false information relates to the same group of offences as that of defamation. Though, in our judgment, section 195 does not bar the  trial of an accused person for a distinct offence disclosed by the same  facts  and which is not included within the  ambit  of that  section,  it  has also to be borne in  mind  that  the provisions of that section cannot be evaded by resorting  to devices  or camouflages.  The test whether there is  evasion of  the  section  or  not  is  whether  the  facts  disclose primarily  and essentially an offence for which a  complaint of the court or of the public servant is required.  In other words, the provisions of the section cannot be evaded by the device  of charging a person with ail offence to which  that section does not apply and then convicting him of an offence to  which it does, upon the ground that such latter  offence is  a minor offence of the same character, or by  describing the offence as being one punishable under some other section of the Indian penal Code,, though in truth and substance the offence  falls  in  the category of  sections  mentioned  in section  195, Criminal Procedure Code.  Merely  by  changing the  garb  or label of an offence which is  essentially  all offence covered by the provisions of section 195 prosecution for  such an offence cannot be taken cognizance of  by  mis- describing it or by putting a wrong label on it. Before  concluding,  reference  nay  also  be  made  to  the decision  of  the  Federal Court in Hori Ram  Singh  v.  The Crown(1).  The appellant in that case was charged (1)  [1939] F.C.R. 159. 847 with  offences  under sections 409 and 477-A,  Indian  Penal Code.   The offence under section 477-A could not  be  taken cognizance  of without the previous consent of the  Governor under  section  270(1) of the Constitution  Act,  while  the consent of the Governor was not required for the institution of  the  proceedings under section 409, Indian  Penal  Code. The charge was that the accused dishonestly  misappropriated or  converted to his own certain medicines entrusted to  him in  his official capacity as a sub-assistant surgeon in  the Punjab  Provincial  Subordinate  Medical  Service.   He  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

further charged that being a public servant, be wilfully and with intent to defraud omitted to record certain entries  in a stock book of medicines belonging to the hospital where he was  employed and in his possession.  The proceedings  under section 477-A were quashed by the Federal Court for want  of jurisdiction,  the consent of the Governor not  having  been obtained,  but the case was sent back to the sessions  judge for  hearing  oil  the merits as regards  the  charge  under section  409, Indian Penal Code, and the order of  acquittal passed  by  the  sessions judge under that  charge  was  set aside.   Two distinct offences having been committed in  the same  transaction, one an offence of misappropriation  under section  409  and the other an offence under  section  477-A which  required  the  sanction of  the  Governor,  the  cir- cumstance  that cognizance could not be taken of the  latter offence without such consent was not considered a bar to the trial  of  the appellant with respect to the  offence  under section 409. Leave   to  appeal  under  article  134  (1)  (c)   of   the Constitution was limited to the question of law referred  to the  Full Bench in this case, and it was distinctly said  in the  order disposing of the leave petition that leave  would not  have  been  granted had the scope of  the  appeal  been limited  to  the merits of the case.  It was  observed  that having regard to the findings recorded by the final court of fact, as also the evidence in the case the elements of  both the  offences  had  been  fully  established.   The  learned counsel  for the appellants attempted to argue that  on  the facts found no 848 offence  under section 297 could be said to have  been  made out.  This point, in our opinion, is not open at this stage, it having been hold that all the ingredients of the  offence had been established on the record.  Even otherwise there is no  substance  in  the contention  because  the  prosecution evidence  is sufficient to hold the offence  proved  against all the appellants. For  the  reasons  given  above we hold  that  there  is  no substance   in  these  appeals  and  they  are   accordingly dismissed. Appeals dismissed. Agent for the appellants: Sukumar Ghose. Agent for the respondent: P. K. Bose. Agent for the complainant: S. C. Bannerjee.