Basir-Ul-Huq And Others vs The State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 26 and 27 of 1952

Decision Date: 10 April 1953

Coram: Mehr Chand Mahajan, Vivian Bose, B. Jagannadhadas

In the matter titled Basir-Ul-Huq and Others versus the State of West Bengal, the Supreme Court of India rendered its judgment on 10 April 1953. The bench that decided the case comprised Justice Mehr Chand Mahajan, Justice Vivian Bose and Justice B. Jagannadhadas. The petitioners were identified as Basir-Ul-Huq and several others, while the respondent was the State of West Bengal. The judgment was recorded under the citation 1953 AIR 293 and also appears in the Supreme Court Reports as 1953 SCR 836, with additional references in later reports such as RF 1958 SC 124, R 1962 SC 876, R 1966 SC 523, APR 1966 SC 1775, RF 1971 SC 1708, RF 1971 SC 1935 and related entries. The statutory provisions examined included sections 190 and 195 of the Criminal Procedure Code, 1898, and sections 182, 297 and 500 of the Indian Penal Code, 1860.

The factual backdrop involved an individual, referred to as X, who lodged a report with the police alleging that X had killed his mother. Acting on that allegation, the police entered the cremation ground while a funeral pyre was burning. A subsequent examination of the dead body revealed that the complaint was false. On the basis of X’s complaint, the accused were charged with offences under section 297 of the Indian Penal Code, which relates to trespass with the intention of wounding religious feelings, and under section 500 of the Indian Penal Code, which concerns defamation. The petitioners argued that because the complaint disclosed offences under sections 182 and 211 of the Indian Penal Code, the criminal court should not take cognizance of the case except upon a complaint by a proper authority as required by section 195 of the Criminal Procedure Code.

The Court held that the facts forming the basis of the offence under section 297 were distinct from those constituting the offence under section 182, noting that the alleged trespass occurred after the false report had been made. Consequently, the requirement of section 195 did not bar the trial of the charge under section 297. Regarding the charge under section 500, the Court observed that when a false report discloses two separate offences—one against a public servant and another against a private individual—the latter offence is not excluded by section 195 of the Criminal Procedure Code, and the private individual may seek redress for the defamation. The Court referred to the decisions in Satish Chandra Chakravarti v. Ram Dayal De and Hori Ram Singh v. The Crown to support its reasoning. Finally, the Court warned that section 195 cannot be circumvented by charging a person with an offence to which the provision does not apply and then convicting him of another offence that does fall within its scope, even if the latter offence is described as a minor or different category under the Indian Penal Code.

The Court noted that the matter before it involved Criminal Appeals Nos 26 and 27 of 1952, which were filed under Article 134(1)(c) of the Constitution of India against the order dated 4 February 1952 issued by the Calcutta High Court (Chakravartti and Sinha JJ.) in Criminal Revision Nos 102 and 103 of 1952. Counsel for the appellants, counsel for the respondent and counsel for the complainant were instructed, and the judgment was delivered on 10 April 1953 by Justice Mahajan. The factual background began with the death of Mokshadamoyee Dassi, the mother of Dhirendra Nath Bera, who died sometime in the evening of 3 September 1949. At the time of her death Dhirendra Nath was not present in the house; he returned at about 8:30 p.m. and, together with several other persons, carried the dead body to the cremation ground. Subsequently Nurul Huda, who was the appellant in Criminal Appeal No 27 of 1952, lodged an information with the police stating that Dhirendra Nath had beaten and throttled his mother to death. While the funeral pyre was still burning, Nurul Huda, accompanied by the appellants in Criminal Appeal No 26 of 1952 and by the sub-inspector of police, arrived at the cremation ground. The appellants pointed to the dead body and told the sub-inspector that the complainant had killed his mother by throttling and that there were injury marks on the body that they could show if the body were taken down from the pyre. Acting on their suggestion, the fire was extinguished and the body was removed despite the protest of the complainant. An examination of the body revealed no marks of injury, and the appellants were unable to point out any such marks. The body was then sent for post-mortem examination, which was conducted on 5 September 1949, and the post-mortem also found no injuries on the deceased. After investigating the matter, the sub-inspector concluded that a false complaint had been made against Dhirendra Nath. Consequently, on 24 September 1949 Dhirendra Nath filed a petition of complaint before the Sub-Divisional Officer of Uluberia in Howrah district, alleging against the appellants in both cases and a third person, Sanwaral Huq, that the information provided by Nurul Huda to the police was false, that Nurul Huda and the other appellants had maliciously made imputations out of enmity with the intention of harming his reputation and religious feelings, and that they had trespassed on the cremation ground and caused the body to be taken down by making false accusations. The appellants were subsequently tried before Shri R. Ray Choudhury, Magistrate First Class, Uluberia, on charges under sections 297 and 500 of the Indian Penal Code.

The charge sheet presented against the accused set out two allegations. The first allegation stated that on the seventeenth day of Bhadra in the year 1356 of the Bengali calendar, at Panshila in the police station of Shyampur, the accused, with the purpose of offending the religious sentiments of the first plaintiff Dhirendra Nath Bera, entered the cremation ground where the funeral rites of the complainant’s mother were being performed, thereby committing an offence punishable under section 297 of the Indian Penal Code, an offence that fell within the magistrate’s jurisdiction. The second allegation asserted that on the same date and place the accused defamed the first plaintiff by alleging that he had killed his mother, doing so with knowledge or reckless disregard that such a statement would damage the plaintiff’s reputation, an act constituting an offence under section 500 of the Indian Penal Code, also within the magistrate’s cognizance. Neither of these charges referred to any false statements made to the police, nor did they contain facts that would disclose an offence under section 182 of the Indian Penal Code. The charge under section 297 was framed as a distinct offence that occurred after the police report had been filed, while the charge under section 500 related to the defamatory and libellous content of the report itself. The defence argued that Nurul Huda had lodged the police information in good faith, relying on a statement made by Asiram Bibi, and that none of the accused had actually entered the cremation ground as alleged. The magistrate, however, found the charges proved against all the accused, convicted each of them under sections 297 and 500, sentenced each to three months’ rigorous imprisonment for the section 297 offence and imposed a fine of one hundred rupees for the section 500 offence. The appellants appealed to the Sessions Judge of Howrah, who on 31 July 1950 set aside the convictions and sentences and acquitted the accused, holding that on the basis of the complaint the only offence that could be said to have been committed was under section 182 or section 211 of the Indian Penal Code, and that a court could not take cognizance of those offences except upon a complaint by a proper authority under section 195 of the Criminal Procedure Code. An application for revision of the acquittal was filed in the High Court. Before a bench comprising Justice K C Das Gupta and Justice P N Mookerjee, the judges examined the matter and concluded that, based on the facts alleged in the petition of complaint, distinct offences under sections 182, 297 and 500 of the Indian Penal Code had been disclosed.

The High Court judges, after examining the record, referred a specific question to a Full Bench for determination. The question was whether, when the facts set out in a complaint or in information presented to a magistrate disclose one offence whose cognizance the magistrate is barred from taking under the special provisions of sections 195, 196, 196-A, 197 or 199 of the Code of Criminal Procedure, the magistrate is also prohibited from taking cognizance of any other offences disclosed by the same facts that are not covered by those special provisions. The Full Bench answered this question in the negative, holding that the magistrate’s inability to proceed against the first offence does not extend to other distinct offences. Applying this principle, the Full Bench considered the conviction under section 297 of the Indian Penal Code. It observed that none of the provisions of sections 195 to 199 of the Criminal Procedure Code bars prosecution for the offence under section 297, because that offence did not arise from facts constituting an offence under section 182 or section 211 of the Penal Code. Instead, the offence under section 297 stemmed from a separate set of facts involving the trespass of the opposite parties into a burial ground and the removal of a corpse from a lighted funeral pyre. Regarding the conviction under section 500 of the Penal Code, the Bench noted that although the defamation charge was based on false information supplied to a public officer, this circumstance did not constitute a bar to prosecuting the appellants under section 500.

Consequently, the revision application was allowed, the earlier order of acquittal was set aside, and the Sessions Judge was directed to rehear the appeal on its merits. Upon remand, the appeal was heard, dismissed, and the convictions and sentences originally imposed by the magistrate were confirmed. The appellants then filed a further revision before the High Court against the Sessions Judge’s order, but those applications were summarily dismissed. Thereafter, the appellants applied to the High Court for a certificate under article 134(1)(c) of the Constitution, seeking leave to appeal to the Supreme Court. In that application they challenged the Full Bench order dated 22 June 1951. The opposing party argued that the interim order of the Full Bench could not be contested because it had not been appealed against at the time. Thus, the leave application presented two substantive questions: first, whether the accused were entitled to question the correctness of the Full Bench decision despite the absence of an earlier appeal; and second, whether the point decided by the Full Bench was of sufficient importance to justify the issuance of a certificate of appeal.

In the application for leave under article 134(1)(c) it was observed that the Full Bench judgment had not brought the proceedings to an end; instead it merely ordered that the appeal be reheard. Accordingly the Court held that the petitioners were not entitled to file an appeal from that judgment at the time it was delivered, and that they remained free to raise the issue now. The second issue presented – whether the matter was of sufficient public importance to warrant the grant of leave – was found to be of sufficient significance, and therefore leave was granted. The respondent’s counsel then raised a preliminary objection aimed at the first issue, whereas the appellants’ counsel focused on challenging the correctness of the Full Bench decision on its merits. The appellants’ counsel argued that the magistrate lacked jurisdiction to take cognizance of the complaint under sections 500 and 297 of the Indian Penal Code because the facts alleged constituted an offence punishable under section 182, which, according to the law, could be instituted only on a complaint made by a public servant. Section 195 of the Criminal Procedure Code, which formed the basis of the question, states, inter alia, that no court shall take cognizance of an offence punishable under sections 172 to 188 of the Indian Penal Code unless there is a written complaint by the public servant concerned or by a subordinate public servant. The statute therefore requires a written complaint from the concerned public servant before a prosecution for an offence under section 182 can be initiated. The provision, however, does not say that if, in the course of committing that offence, other distinct offences are committed, the magistrate is barred from taking cognizance of those additional offences. The counsel further explained that allegations in a complaint may have a double aspect: they may constitute an offence against the authority of a public servant or against public justice, and at the same time may constitute defamation or another separate offence. The section does not expressly prohibit the magistrate from taking cognizance of the separate offence, even when the public servant to whom the false report was made does not lodge a complaint. It was additionally argued that if, on the same facts, an offence that cannot be taken cognizance of under section 195 is disclosed, and the same facts also disclose another offence that falls outside the scope of section 195, and the prosecution proceeds with the latter without satisfying the requirements of section 195, then the effect would be to render section 195 ineffective; permitting such a course would defeat the purpose of the provision. It was further submitted that the prosecution may not sidestep the provisions of section 195 by characterising the offence as punishable under a different provision of the Penal Code. The Court concluded that the contention raised by the appellants’ counsel was without substance as far as the

In the present matter, the charge filed under section 297 of the Indian Penal Code was held, as the High Court observed, never to fall within the scope of section 195 of the Criminal Procedure Code. The alleged trespass was said to have taken place after the false report had been made, and the evidence established every element of that offence as relating to the conduct of the appellants during the period following the report. Because of these facts, the Court found that no serious argument could be made that section 195 was defeated merely because a magistrate had taken cognizance of the offence. Regarding the charge under section 500 of the Indian Penal Code, the Court noted that both principle and precedent make it clear that when a false report contains two separate offences—one directed against a public servant and another against a private individual—the provision of section 195 does not bar the private individual from seeking redress for the offence committed against him. Section 499 of the Indian Penal Code, which sets out the elements of defamation, provides limited immunity to persons who give testimony in court, but that immunity is qualified and not absolute as it is under English law. Under section 198 of the Criminal Procedure Code, a complaint concerning an offence under section 499 may be filed only by the person who has been defamed, just as cognizance of an offence under section 182 may be taken only on the complaint of the concerned public servant. In light of these statutory provisions, the Court saw no reason to accept the proposition that a complaint under section 499 could be taken into consideration only if both the public servant and the defamed person jointly made the complaint; otherwise the defamed individual would be left without any remedy. The statutes prescribe separate procedures for lodging complaints under the two Indian Penal Code provisions, and once the prescribed procedure is followed, the court is bound to take cognizance of the offence complained of. The Court found that decided cases fully support this view and it was not aware of any authority taking a contrary position concerning offences under section 500. Finally, the Court referred to the decision in Satish Chandra Chakravarti v. Ram Dayal De, where a five-judge panel of the Calcutta High Court held that when a single statement gives rise to two distinct offences—one under section 211, which is an offence against public justice, and another under section 499, where the personal element predominates—the latter offence may be taken into cognizance.

The Court observed that the Criminal Procedure Code does not prescribe a requirement of court sanction for taking cognizance of the offence in question, and therefore the offence can be proceeded against without such sanction. It further held that the two offences under consideration are fundamentally distinct and may each be taken cognizance of separately. The distinction is evident from the fact that one offence is classified as non-compoundable while the other remains compoundable. Consequently, for the initiation of proceedings relating to the non-compoundable offence, the legislature mandates the sanction of the court under section 195 of the Criminal Procedure Code, as reported in (1) (1920) 24 C.W.N. 982. In contrast, cognizance of the compoundable offence may be taken on the complaint of the person who was defamed. The Court could not deny that an accused may be tried under sections 182 and 500 of the Indian Penal Code on the same factual matrix, provided that both the public servant and the defamed person have lodged complaints. Accordingly, there is no justification for preventing one offence from being tried independently of the other, so long as the statutory requirements applicable to each are fulfilled.

Justice Harries, delivering the full-bench judgment, examined earlier decisions of the Calcutta High Court and noted that when the facts disclose the commission of several offences, some of which require court sanction and others that do not, the complainant is entitled to pursue only those offences that do not require sanction. To compel the complainant to satisfy the sanction requirement for all disclosed offences would amount to legislating beyond the scope of sections 195 to 199 of the Code of Criminal Procedure. Those sections delineate the requisites for prosecuting certain specified offences and must be confined to prosecutions for the offences expressly indicated therein. The Court remarked that, had the legislature intended to make a particular form of sanction or complaint obligatory for the prosecution of every offence revealed by the facts, it would have expressly provided such a requirement, which it has not. More recently, a full bench of the Madras High Court ruled that a party who has been defamed may institute proceedings under section 499 of the Indian Penal Code without a court-filed complaint under section 195. The issue before that court was whether a person who gave false evidence in a judicial proceeding could be prosecuted under section 499 without a complaint by the court before which the false evidence was offered. After an exhaustive review of decisions of various High Courts, the Madras bench answered affirmatively, emphasizing that the offence of giving false evidence in a judicial proceeding and the offence of defamation do not belong to the same genus but are distinct and separate in their characteristics and ingredients.

The Court observed that the Criminal Procedure Code did not impose any substantial restriction on the initiation and trial of one offence when such initiation was not dependent on first satisfying the procedural requirements for a different offence. This principle was considered applicable to the facts of the present case. Specifically, the Court noted that the essential elements required to establish an offence under section 182 of the Code of Criminal Procedure could not be said to coincide with the elements necessary for an offence under section 500 of the Indian Penal Code. Likewise, the offence of providing false information could not be classified within the same category as the offence of defamation.

While the Court held that section 195 of the Criminal Procedure Code did not preclude the trial of an accused person for a distinct offence that was disclosed by the same set of facts and that fell outside the scope of that section, it also emphasized that the provisions of section 195 could not be circumvented by employing artificial devices or by disguising the true nature of the charge. The test for determining whether the provisions were being evaded, the Court explained, was to examine whether the facts disclosed primarily and essentially an offence that required a formal complaint by a court or a public servant. In other words, the Court warned that it was not permissible to charge a person with an offence to which section 195 did not apply and then to secure a conviction for a different offence that did fall within the ambit of section 195 by arguing that the latter was merely a minor offence of the same character, or by labeling the conduct as punishable under another provision of the Indian Penal Code when, in substance, it belonged to the class of offences covered by section 195.

The Court further clarified that merely changing the label or description of an offence could not defeat the operation of section 195; prosecution for an offence that truly fell within its scope could not be taken cognizance of through a mis-description or a false label. Before concluding, the Court referred to the decision of the Federal Court in Hori Ram Singh v. The Crown. In that case, the appellant had been charged with offences under sections 409 and 477-A of the Indian Penal Code. The offence under section 477-A required prior consent of the Governor under section 270(1) of the Constitution Act, whereas consent was not required for proceedings under section 409. The appellant, a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service, was accused of dishonestly misappropriating medicines entrusted to him and, as a public servant, of wilfully omitting entries in a stock book of medicines belonging to the hospital where he worked. The Federal Court quashed the proceedings under section 477-A for lack of jurisdiction because the Governor’s consent had not been obtained, but it sent the matter back to the Sessions Judge to consider the charge under section 409, and it set aside the Sessions Judge’s acquittal on that charge. The Court highlighted that two distinct offences arising from the same transaction—one requiring gubernatorial sanction and the other not—did not bar the trial of the latter, illustrating that the lack of required consent for one offence could not impede prosecution for a separate offence disclosed by the same facts.

Because the Governor’s consent had not been obtained, the case was remitted to the Sessions Judge for consideration of the merits of the charge under section 409 of the Indian Penal Code. The Sessions Judge’s earlier order of acquittal on that charge was consequently set aside by the higher court. Two distinct offences were found to have arisen from the same transaction, one being misappropriation under section 409 and the other being an offence under section 477-A that required the Governor’s sanction. The lack of such sanction, which prevented cognizance of the section 477-A offence, was not held to bar trial on the section 409 charge. Leave to appeal under article 134 (1) (c) of the Constitution was granted solely on a question of law referred to the Full Bench. The order disposing the leave petition expressly noted that leave would not have been granted if the appeal had been limited to the merits. It was observed that, in view of the findings recorded by the final fact-finding court and the evidence on record, the elements of both offences had been fully established. Counsel for the appellants argued that, based on the facts, no offence under section 297 could be said to have been made out. The Court held that this issue was not open for consideration at this stage because the record already showed that all ingredients of the alleged offence had been established. Even assuming that point, the Court found no substance in the contention, as the prosecution evidence was sufficient to prove the offence against each of the appellants. Accordingly, the Court concluded that the appeals lacked merit and therefore dismissed them with no further relief granted. The dismissal of the appeals was recorded, and the agents representing the parties were listed as follows herein. Agent for the appellants was Sukumar Ghose; agent for the respondent was P. K. Bose; and agent for the complainant was S. C. Bannerjee.