Abdul Rehman Mahomed Yusuf vs Mahomed Haji Ahmad Agbotwala

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

Court: supreme-court

Case Number: Criminal Appeal No. 174 of 1956

Decision Date: 15 September 1959

Coram: Syed Jaffer Imam, K.N. Wanchoo

In this matter the Supreme Court of India rendered its judgment on 15 September 1959. The opinion was authored by Justice Syed Jaffer Imam, with Justice K.N. Wanchoo also sitting on the bench. The petitioner was Abdul Rehman Mahomed Yusuf and the respondents were Mahomed Haji Ahmad Agbotwala together with another respondent. The decision was reported in 1960 AIR 82 and 1960 SCR (1) 749 and is also referenced in the citator as RF 1976 SC1750 (4). The case concerned criminal procedure in a defamation action, specifically the requirement that the facts set out in the charge must be recited in the complaint and that a separate complaint must be filed where necessary, in accordance with sections 198 and 238(3) of the Code of Criminal Procedure, 1898. The appellant had lodged a complaint invoking sections 385, 389, 500 and 109 of the Indian Penal Code against the respondents. The trial magistrate found no evidence of a conspiracy to defame the appellant or to extort money and consequently framed only a charge under section 500 of the IPC against respondent Agbotwala. The magistrate observed that the factual allegations contained in that charge were not mentioned in the original complaint. Accordingly, the trial court held that a separate complaint should have been presented for the offence with which the respondent was charged and therefore acquitted him.

The High Court, on a revision application, rejected the appellant’s plea, remarking that no offence was made out. The appellant then obtained special leave to appeal. The Supreme Court held that the offence for which a charge was framed constituted a distinct offence, although of the same kind, from the offence described in the original complaint, and that a separate complaint was required under the mandatory provision of section 198 of the Code of Criminal Procedure. The Court further observed that it could grant the relief that the High Court could have granted, namely that the order of acquittal was a nullity and the proper order was a discharge. The appeal was Criminal Appeal No. 174 of 1956, taken by special leave from the Bombay High Court’s order dated 15 April 1955 in Criminal Revision Application No. 392 of 1955, which arose from the Presidency Magistrate’s order dated 14 December 1954 in Case No. 532/S of 1953 of the 15th Court, Mazagaon, Bombay. Counsel for the appellant were E.B. Ghasvala and I.N. Shroff; counsel for respondent No. 1 were C.B. Aggarwala, J.B. Dadachanji, S.N. Andley and R. Rameshwar Nath; and counsel for respondent No. 2 were H.J. Umrigar, R.H. Dhebar and T.M. Sen. The judgment was delivered on 15 September 1959 by Justice Imam. The factual background recorded that the appellant filed a complaint on 4 December 1953 against respondent Agbotwala and another individual, Phirozbai Mazarkhan, invoking sections 385, 389, 500, 34 and 109 of the Indian Penal Code before the Presidency Magistrate’s 15th Court, Mazagaon, Bombay. The accused

Both accused were summoned before the Presidency Magistrate. Because Phirozbai Mazarkhan could not be produced, the trial proceeded only against the respondent, Mahomed Haji Ahmed Agbotwala. The magistrate examined the evidence and concluded that it did not establish a conspiracy between the respondent and Phirozbai Mazarkhan either to defame the appellant or to extort money from him. Moreover, the magistrate found no proof that the respondent was aware that Phirozbai Mazarkhan was committing any offence. Consequently, the magistrate declined to frame charges under sections 385, 389, 134 and 109 of the Indian Penal Code. Nonetheless, the magistrate did frame a charge under section 500 of the Indian Penal Code against the respondent, who entered a plea of not guilty.

The magistrate expressed the view that, after considering the evidence, the respondent had, on 13 October 1952, uttered the defamatory words for which he was charged in the presence of Mr N. K. Parab, an advocate. The magistrate further held that section 198 of the Code of Criminal Procedure barred him from taking cognizance of the matter because the complaint, although filed by the aggrieved person, did not contain the factual particulars that formed the basis of the alleged offence. In the magistrate’s opinion, the charge was therefore incorrectly framed, as a proper complaint should have been filed regarding the specific offence under section 500. Since such a complaint was absent, the magistrate concluded that the charge was improperly framed and consequently acquitted the respondent.

The appellant challenged the magistrate’s decision by filing a revision application before the High Court of Bombay. The High Court dismissed the revision with the observation that the application was “Rejected as no offence.” The appellant subsequently obtained special leave from this Court to appeal the High Court’s decision. In the original complaint presented to the Presidency Magistrate, the appellant referred to the nature of the defamatory statement allegedly made by Phirozbai Mazarkhan, which was reproduced in a notice sent to him by Mr Parab on behalf of Mazarkhan. After providing extensive details of the ensuing correspondence, the appellant highlighted the role played by the respondent in paragraphs 19 to 24 of the complaint. The appellant asserted that the allegations were based on knowledge acquired through enquiries. Paragraph 22, which the appellant emphasized, stated:

“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 going to the office of the said advocate Mr Parab at Mazgaon 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.”

In the complaint the appellant contended that although the complaint was formally filed in the name of Accused No. 1, the true person acting behind it was Accused No. 2. He further alleged that Phirozbai Mazarkhan and the respondent had conspired together and, in furtherance of their common intention, had tried to frighten him with the prospect of bodily injury, injury to his reputation and loss of property, with the ultimate aim of extorting him. Accordingly, the appellant asserted that the accused had committed offences punishable under sections 385, 389, 500 in conjunction with section 34, and section 109 of the Indian Penal Code. At the trial the charge framed against the respondent read as follows: “I, H. G. Mahimtura, Presidency Magistrate, hereby charge you Mohomed Haji Ahmed Agbotwala as follows—That on or about 13‑10‑52 at Bombay you defamed Abdul Rehman Mohamed Yusuf by making or publishing to witness N. K. Parab certain imputations concerning the said Abdul Rehman, namely that a woman named Phirozbai Mazarkhan was in his keeping, that he had promised to marry her but failed to keep that promise, and that he cheated her of ornaments worth about Rs 30,000 by spoken words, intending to harm or knowing or having reason to believe that such statements would harm the reputation of the said Abdul Rehman; and that by so doing you thereby committed an offence punishable under section 500 of the Indian Penal Code and within my cognizance.” The magistrate then directed that the accused be tried on the said charge, explained the charge, and recorded that the accused pleaded not guilty. It is noteworthy that this charge specifically asserts that the respondent uttered defamatory words to the advocate N. K. Parab. However, the original complaint did not state as a fact that the respondent had uttered any defamatory words to Mr. Parab; the most that the complaint alleged against the respondent was that he was instrumental in the correspondence that ensued between advocate Parab and the appellant and in the filing of the complaint by Phirozbai Mazarkhan against the appellant. The appellant argued that, having found that the respondent had indeed uttered the words described in the charge to advocate Parab, the Presidency Magistrate should not have acquitted the respondent because section 198 of the Code of Criminal Procedure did not pose a real impediment to the magistrate’s jurisdiction. The magistrate had taken cognizance of an offence under sections 500, 34 and 109 of the Indian Penal Code on the basis of the complaint filed by the appellant. The appellant further submitted that, if at trial it appeared that only an offence under section 500 had been committed, the magistrate was free to take cognizance of that offence without the need for a separate complaint. In addition, it was urged that a reading of the complaint as a whole indicated that the respondent must have uttered the words forming the subject‑matter of the charge, and that those words were not, in fact, uttered to Mr. Parab.

It was submitted that the complaint had been filed only by Phirozbai Mazarkhan. The argument then advanced suggested that, even if it were assumed that the charge which had been framed required a separate complaint and that, in accordance with section 198 of the Code of Criminal Procedure, no cognizance could be taken of the offence charged, the Presidency Magistrate was nevertheless correct in his view that the charge had been wrongly framed. The submission further contended that, under those circumstances, the Magistrate’s duty was to refer the matter to the High Court for cancellation of the charge rather than to proceed himself. Accordingly, the contention was that the Presidency Magistrate had acted without jurisdiction when he continued with the proceedings and subsequently recorded an order of acquittal on the basis that a complaint containing the facts necessary to support the present charge had not been filed.

Representing the respondent, it was urged that the acquittal was proper because there was no complaint regarding the offence as framed, and because section 198 of the Code of Criminal Procedure barred the Magistrate from taking cognizance of the alleged offence. It was emphasized that defamation could occur on more than one occasion and that the charge specifically alleged that the respondent had spoken defamatory words to Mr Parab. That alleged defamatory act constituted a separate offence, although it was of the same general kind as the offence described in the original complaint. Further, it was pointed out that although the Presidency Magistrate had expressed the opinion that the respondent had uttered the defamatory words to Mr Parab, he had not provided any reasons or grounds for arriving at that conclusion. When the entire evidence and the surrounding circumstances were considered, the evidence of Mr Parab appeared unreliable. Even assuming that the Magistrate had incorrectly acquitted the accused, the argument was that the order of acquittal should not be set aside.

The Court observed that both parties had presented their submissions with considerable skill and had advanced elaborate arguments in support of their respective positions. In the Court’s view, based on the findings of the Presidency Magistrate, an acquittal could not have been recorded. The complaint that had been filed did not refer to any alleged defamatory words spoken by the respondent to Mr Parab. Although the Magistrate had placed confidence in the testimony of Mr Parab, he nonetheless concluded that the charge had been wrongly framed because the complaint did not contain the facts constituting the offence for which the respondent had been charged. In that situation, the proper course would have been for the Presidency Magistrate to refer the matter to the High Court for correction, rather than to proceed to record an acquittal. Since the present matter was before the appellate Court, the Court indicated that it could perform the function that the High Court should have performed. The Court further held that the offence charged was a distinct offence, albeit of the same kind, from the offence described in the factual allegations of the original complaint.

In this case the Court noted that for the separate offence identified, a fresh complaint should have been lodged and the requirements of section 198 of the Code of Criminal Procedure should have been observed. The Court held that the provisions of that section are mandatory and cannot be ignored. It further pointed out that even section 238 of the Code stresses the importance of complying with the provisions of sections 198 and 199. Clause (3) of section 238 expressly provides that the provisions of that section do not empower a conviction for an offence referred to in sections 198 or 199 when the requisite complaint has not been filed as mandated by those sections. Accordingly, the Court found that the Presidency Magistrate had framed the charge incorrectly because, on the record, no complaint was filed in respect of the offence that was alleged and the facts set out in the complaint that had actually been filed did not constitute the offence as framed. The findings of the Presidency Magistrate made it clear that the alleged offence of conspiracy and abetment had not been established. Therefore the Magistrate should have discharged the accused and should not have proceeded to frame a charge for an offence for which there was no complaint, as required by section 198 of the Code of Criminal Procedure. Because the Magistrate lacked jurisdiction to frame such a charge, his order of acquittal was held to be a nullity. The Court observed that, in this appeal, it could perform the function that the High Court could have performed. Consequently, the appeal was allowed, the order of acquittal made by the Presidency Magistrate was set aside, and, on the basis of the finding that no offence of conspiracy or abetment had been established, the present complaint was dismissed. The respondent was therefore discharged and the appeal was allowed.