BASIR-UL-HUQ AND OTHERS v. THE STATE OF WEST BENGAL
Citation: [1953] 1 S.C.R. 836; 1953 INSC 34
Court: Supreme Court of India
Bench: MEHR CHAND MAHAJAN , VIVIAN BOSE, B. JAGANNADHADAS
Judgment date:
Case summary
1953 INSC 34. Supreme Court of India judgment dated 1953-04-10. BASIR-UL-HUQ AND OTHERS v. THE STATE OF WEST BENGAL. Read the judgment and case details on...
Judgment text
836 SUPREME COURT HEi'ORTS [i953] judgment, so it is not necessary to do m9re than out-line them here. The quota-holder here is Beharilal . :ii·~:'l:d. Bairathi. In this case also, Dharsi Moolji paid Dwarkadas Khetan for the goods and the Mills sent the bales to Dharsi Moolji for delivery in the same truck as the 13 bales. Dharsi Moolji refused to accept these bales also, so they were deposited in the Dady Seth godown along with the other thirteen. Dwarkadas Khetan & Company has been entered as the person to whom delivery was made. For the reasons given above, we hold that this was a true and accurate return. The appeal is allowed. The conviction and sentence in each of the four cases is set aside. The fines, if paid, will be refunded. Appeal allowed. Agent for appellants Nos. 1, 2 & 4: Rajirider Narain. Agent for appellant No. 3: Ganpat Rai. Agent for the respondent: G. H. Rajadhyaksha. BASIR-UL-HUQ AND O'fHERS v. THE STATE OF WEST BENGAL. NUR-UL-HUDA v. THE STATE OF 'WEST BENGAL.
[MEHR CHAND MAHAJAN, VIVIAN BosE and JAGANNADHA DAS JJ. ] Criminal Procedure Gode, 1898, ss. 190, 195-Indian Penal Gode, 1860, ss. 182, 297, 500-Report to police all'9ing X had killed his 11iother-Trespass ivith police on cremation ground-Report fo11nd false-Oornplaint by X for trespass and defrin. ation-Main-tainability-Jurisdiction to take counizance of ofjence- Whether barred by s. 195, Criminal Procedure Gode. - s. c. R. SUPREME COURT REPOR'l'S 837 1953 The accused fo 1 false report disclose two distinct offences, one against the public servant and the other against a private indi-vidual, 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 that immunity is a qualified one and is not absolute as it is in English law.
Under section 198, - 844 SUPREME cou:R'r HEPORTS [1953] Criminal Procedure Code, a complaint in, respect of an offence under section 499, Indian Penal Code, can onlv be initiated at the instance of the person defamed, i! 1 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 offenoo complained of.
The decided cases fully support this view and our attention has not been drawn to any case which ha. s taken a contrary view as regards offences under section 500, Indian Penal Code. In 8atis 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 211, 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. Tha.
t they are distinct in character is patent from the fact that tho 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, (I) (1920) 24 C. W. ;,. /, 982, • .. - 8. C. H. SUPREME COCRT REPORTS 845 1953 Criminal Proce,dure Code, while in the other, l'ognizance can be taken of the offence on the complaint of the Rus·ir-ul-Huq person defamed. It could not be denied that the nnd Othe1·s accused could be tried of charges under sections 182 and v. 500, Indian Penal Code, separately on the same facts 'l'he State of pro1-ided the public servant as well as the person Trest Bengal. defamed made complaints. If that is so, there is no il1ahajan J, 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 proce~d 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 sections 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 could have said so but it did not.
R,ecently 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 he gave evidence and the question was answered in the affirmative after an exhaustive review of the decided cases of the difl:erent High Courts in India. It was said that if the offence of - 84(i SUPREME COGRi REPORtS Ii953J g1vmg false evidence in a judicial proceeding and defamation do not belong to the same genus but aro . ha.
jit·-ul-Huq distinct and separate in their characteristics and ingredients, it was difficult to perceive any serious inhibition bv the Criminal Procedure Code for initiation and trial of one of these offences independently of mitcrim resort to fulfilling the conditions necessary tn rnnunence a prosecution for the other. These observa-tions have apt application to tho 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 relntes to the same group of offences as that of defamation. Though, in our judgment, section l! J5 docs 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 i' whether the facts disclose prim. arily and essentially an offence for whieh 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 n person with an offence to which that section does not :1pply and then convieting him of an oftence to which it docs, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being 0110 punishable under some other section of the Indian Penal Code, though in tl'uth and substance the offence falis 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 an offence covered by the provisions of seetion 195 prosecution foi:, such an offence cannot lie taken cognizance of by mis-describing it or by putting a wrong label on it.
Before concluding, reference may also be made to the decision of the Federal Court in Hori Ram Singh v. The Grown('). The appellant in that case was charged (1) (1939] F. C. R. 159. - . 1953 with offences. under sections 409 and 477-A, Indian Penal Code. The offence un<ler section 477-A could not Bn&ir-ul-Huq be taken cognizance of withff1t the previous consent (//Id Othe1·s of the Governor under section 2iO(l) of the Constitution v. Act, while the consent of the Governor was not required The State of TVest Bengal. for the institution of the proceedings under section 409, Indian Penal Code. The charge was that the accused Jfahajan J. dishonestly misapptopriated or converted to his own certain medicines entrusted to him in his official capa- C'ity as a sub-assistant surgeon in the Punjab Provin-cial Subordinate Medical Service.
He was further charged that being a public servant, he wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employe<l 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 on 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 section409 and the other an offence under section 477-A which required the sanction of the Governor, the circumstance 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 artide 134 (1 ) (c) of the Constitution was limited to the question of law referred to the }tu]] 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 re-corded by the fina,I court of fact, as also the evidence in the case the elements of both the offl•nces had been fullv established.
The learned counsel for the appellants attempted to argue that on the facts found no 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 held 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: 8. C. Bannerjee. LAKSHMANA NADAR AND OTHERS v. R. RAMIER. [MEHR CHAND MAHAJAN and S. R. DAS JJ.
] Hindu law-Will--Beqiwst to wife for her lifetime and to daitghter absolutely after wife's lifetime-Estate taken by wife- TVhether ordinary life estate or Hindn widow's estate-Danghter's estate-Whether vested-Death of daitghter be/ore widow, effect of -Constrnction of Hindn will-Gnidina principles. A Hindu Brahmin governed by the l'IIitakshara law made a \vill in \vhich he gave the following directions: "After my life. time, you, the aforesaid Rauganayaki Ammal, my wife, shall till your lifetime enjoy the aforesaid entire properties ... After your lifetime, Ramalakshmi Ammal, our daughter and her heirs shall enjoy them with absolute rights and powers of alie. nation such as gift, exchange and sale from son to grandson and so on for gener-ations. As regards the payment of maintenance to be made to 0, wife of iny late son, H, my wife Ranganayaki Ammal shall pay the same as she pleases and obtain a release deed.
" After the death of the testatol' his \vife entered into possession of his properties bnt Lefore the r1eath of his wifo, his daughter and all her children died: Held, (i) that on a proper constrndion of the will in the light of surrounding circumstances, the testator had conferred on bis
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