High Court Division :
(Criminal Revisional Jurisdiction)
Md Emdadul Huq J
Mohammad Ullah J
Saleh Ahmed Shaheen (Md)………..Petitioner
vs
State………..Respondent*
Judgment
October 26th, 2011
Code of Criminal Procedure (V of 1898)
Sections 195(l)(b) or (c) and 476
Penal Code (XLV of 1860)
Section 211
Adalat has not complied with any of the four requirements. He has neither formed any opinion nor recorded any finding as to whether he was satisfied about the necessity of inquiry into an offence under section 211 of the Penal Code nor did he make any complaint signed by him nor did he send it to a competent Magistrate. The Judge mechanically accorded permission above. It is neither a legal nor proper order and therefore it is liable to be set-aside to the extent of according permission for prosecuting the informant under section 211 of the Penal Code. . ….. (15 & 16)
No one appears-For the Petitioner.
Purobi Rani Sharma AAG-For the State.
Judgment
Md Emdadul Huq J: In this Criminal Revision under section 439 of the Code of Criminal Procedure 1898 (shortly the Code, 1898), the petitioner, being the informant of Nari-o-Shishu Nirjatan Daman Special Case No. 32 of 1998, has challenged the order dated 16-8-1998 passed by the learned Judge of Nari-o-Shishu Nirjatan Daman Bishesh Adalat, Sherpur (shortly the Adalat) according permission to the Investigating Officer for filing a prosecution report in respect of the offence under section 211 of the Penal Code against the petitioner informant for instituting the said case as a false one.
2. Earlier a Rule was issued on the matter.
3. The matter appeared in the list with the name of the learned advocate for the petitioner for consecutive days since 23-10-2011 but none appears when it is taken up today for hearing.
4. Ms Purabi Sharma, the learned Assistant Attorney-General submits that she has no instruction on the matter from the opposite party (State).
5. We have considered the materials record including the impugned order and the grounds taken in the revisional application along with the Annexure thereto.
6. Facts relevant for disposal of the Rule, in brief, are stated below:
The petitioner filed a petition of complaint (Annexure-A) before the learned Magistrate, 1st Class, Sherpur alleging that the 3(three) accused persons named therein and 3(three) other unknown persons committed offences under sections 13 and 14 of the Nari-o-Shishu Nirjatan (Bishes Bidhan) Ain, 1995 (shortly the Ain, 1995). The learned Magistrate sent the complaint to the Sherpur Police Station with a direction to treat the same as a First Information Report (shortly FIR). Accordingly Sherpur PS Case No.9 dated 7-8-1997 was registered. However, after investigation, the Investigating Officer, being a Sub-Inspector of Police, submitted a final report with recommendation that the accused persons named in the FIR should be discharged. The said Investigating Officer further made a prayer for filing prosecution report against the informant on the ground that the accusations made by the later were false.
7. On receipt of the final report, the learned Judge of the Adalat, by the impugned order, accepted the same and discharged the FIR named accused persons and further rejected the Naraji petition filed by the informant petitioner against the final report. By the same order, the learned Judge of the Adalat also accorded permission to the Investigating Officer to file a prosecution report against the informant petitioner in respect of the offence under section 211 of the Penal Code.
8. It appears from the certified copy of the impugned order dated 10-8-1998 and the Final Report No. 11 dated 26-2-1998 (Annexure-B) that the learned Judge of the Adalat passed the impugned order with an intention to proceed under section’ 476 of the Code 1898. The said section 476 empowers certain courts including a criminal court to make a’ complaint about commission of the offences specified in sections 195(1)(b) or (c) of the Code, 1898.
9. For proper appreciation of the legal position on the matter, relevant portion of sections 195(1) and 476 of the Code, 1898, are quoted below.
“195: Prosecution for contempt of lawful authority of public servants. 1) No court shall take cognizance
(a)………………
(b) (Prosecution for certain offences against public justice) of any offence punishable under any of the following sections of the same Code, namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate, or.
(c)………
(2), (3), (4), (5) ………….”
Section 195(1) of the Code, 1898 clearly restricts cognizance’ of certain offences, including the offence tinder section 211 of the Penal Code. The restrictions are referred to in section 476 of the Code, 1898 in the following terms:
“476. Procedure in cases mentioned in section 195:-
(1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section, 195, subsection (1) clause (b) or clause (c) which appears to have been committed ‘in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in waiting signed by the presiding Officer of the Court, and shall forward the same to a Magistrate of the ‘first class having jurisdiction, and may take sufficient security for the appearance, of the accused before such Magistrate or if the alleged offence is non bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to, appear and give evidence before such Magistrate.
Provided that ………..
For the purposes of this section………………
(2), (3)………………”
10. The legislative intent of section 476 read with section 195(1), of the Code, 1898 is that prosecution and cognizance of certain offences including that under 211 of the Penal Code are to be dealt with caution. Accordingly the law has not allowed private individuals to lodge complaint against any person with the allegation that the latter initiated a false case. Because this liberty may seriously jeopardize the judicial and legal system. It may lead to a sort of anarchy. For instance, in case of failure of a criminal case in the form of dismissal of complaint, discharge or acquittal of the accused persons or otherwise, the complainant or others initiating or involved in a criminal proceeding may face the accusation of false prosecution.
11. So to avoid such probability, the law sections 476 and 195(1) require that the concerned court itself has to initiate a complaint about a false case in the manner prescribed in those provisions. The essence of these provisions are that the court must record a finding about falsehood of the case and accordingly the presiding Judge or the officer himself will make a complaint.
12. The said section requires that, for prosecuting any person in respect of offences mentioned in sections 195(1), clause (b) or (c) i.e. offences under section 211 of the Penal Code and other sections the following four pre-conditions are to be fulfilled:
a) The concerned court (Civil, Revenue or Criminal) has to form an opinion that inquiry should be made in relation to the offence under section 211 or the other sections of the Penal Code as mentioned in section 195 (1)
(b) or (c) of the Code 1898.
b) Such opinion has to be recorded as a finding by that court or by a superior court to the effect that the said offence(s) appears to have been committed.
c) After recording such finding, the presiding Judge/officer of such court himself has to make a complaint under his own signature. The superior court may however direct its subordinate court to make such complaint.
d) Then the complaint is to be forwarded to a Magistrate, First Class having jurisdiction.
13. It is noted that the Adalat was established under the Ain, 1995 (repealed by Act No. 8 of 2000) for dealing with offences specified therein. So it was a criminal court established under law and it had the lawful authority to exercise the powers under section 476 of the Code 1898. But in doing so, the Adalat or for that matter any other court specified in section 476 must comply with the aforesaid requirements.
14. But in the instant case it appears that the learned Judge of the Adalat has not done so. This will be clear from his order as quoted below:
bw_ KMwb‡RÝ wel‡q ïbvbx, Ae¨vnwZi welq ïbvbx Ges bvivwR `iLv¯Í ïbvbxi Rb¨ †ck Kiv nBj|
ïwbjvg| KvMR cÎvw` ch©v‡jvPbv Kwijvg|
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AZtci Avmvgx †gvQvt Av‡gbv LvZzb, †gvt Aveyj Kvjvg I †gvt Av³vi †nv‡mb Gi cÖ‡Z¨K‡K †gvKÏgvq `vq nB‡Z Ae¨vnwZ cÖ`vb Kiv nBj|
Ab¨w`‡K msev“vZv †gvt mv‡jn Avn‡¤§` kvwn‡bi weiæ‡× `twet 211 aviv †gvZv‡eK cÖwmwKDkb `vwL‡ji AbygwZ cÖ`vb Kiv nBj|
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15. It is evident that the Adalat has not complied with any of the four requirements as mentioned above. He has neither formed any opinion nor recorded any finding as to whether he was satisfied about the necessity of inquiry into an offence under section 211 of the Penal Code nor did he make any complaint signed by him nor did he send it to a competent Magistrate. The learned Judge mechanically accorded permission as quoted above.
16. In view of the above we hold that the impugned order is not sustainable. It is neither a legal nor proper order and therefore it is liable to be set-aside to the extent of according permission for prosecuting the informant petitioner under section 211 of the Penal Code.
17. In the result, the Rule is made absolute.
18. The order dated 16-8-1998 passed by the learned Judge of the Nari-o-Shishu Nirjatan Daman Bishesh Adalat, Sherpur passed in Nari-o-Shishu Nirjatan Bishesh Mamla No. 32 of 1998 is hereby set-aside so far it relates to according to permission for submission of prosecution a report for under section 211 of the Penal Code against the informant petitioner.
Send copies of this judgment to the learned Sessions Judge and Nari-o-Shishu Nirjatan Daman Tribunal of Sherpur District.
(Criminal Revisional Jurisdiction)
Md Emdadul Huq J
Mohammad Ullah J
Saleh Ahmed Shaheen (Md)………..Petitioner
vs
State………..Respondent*
Judgment
October 26th, 2011
Code of Criminal Procedure (V of 1898)
Sections 195(l)(b) or (c) and 476
Penal Code (XLV of 1860)
Section 211
Adalat has not complied with any of the four requirements. He has neither formed any opinion nor recorded any finding as to whether he was satisfied about the necessity of inquiry into an offence under section 211 of the Penal Code nor did he make any complaint signed by him nor did he send it to a competent Magistrate. The Judge mechanically accorded permission above. It is neither a legal nor proper order and therefore it is liable to be set-aside to the extent of according permission for prosecuting the informant under section 211 of the Penal Code. . ….. (15 & 16)
No one appears-For the Petitioner.
Purobi Rani Sharma AAG-For the State.
Judgment
Md Emdadul Huq J: In this Criminal Revision under section 439 of the Code of Criminal Procedure 1898 (shortly the Code, 1898), the petitioner, being the informant of Nari-o-Shishu Nirjatan Daman Special Case No. 32 of 1998, has challenged the order dated 16-8-1998 passed by the learned Judge of Nari-o-Shishu Nirjatan Daman Bishesh Adalat, Sherpur (shortly the Adalat) according permission to the Investigating Officer for filing a prosecution report in respect of the offence under section 211 of the Penal Code against the petitioner informant for instituting the said case as a false one.
2. Earlier a Rule was issued on the matter.
3. The matter appeared in the list with the name of the learned advocate for the petitioner for consecutive days since 23-10-2011 but none appears when it is taken up today for hearing.
4. Ms Purabi Sharma, the learned Assistant Attorney-General submits that she has no instruction on the matter from the opposite party (State).
5. We have considered the materials record including the impugned order and the grounds taken in the revisional application along with the Annexure thereto.
6. Facts relevant for disposal of the Rule, in brief, are stated below:
The petitioner filed a petition of complaint (Annexure-A) before the learned Magistrate, 1st Class, Sherpur alleging that the 3(three) accused persons named therein and 3(three) other unknown persons committed offences under sections 13 and 14 of the Nari-o-Shishu Nirjatan (Bishes Bidhan) Ain, 1995 (shortly the Ain, 1995). The learned Magistrate sent the complaint to the Sherpur Police Station with a direction to treat the same as a First Information Report (shortly FIR). Accordingly Sherpur PS Case No.9 dated 7-8-1997 was registered. However, after investigation, the Investigating Officer, being a Sub-Inspector of Police, submitted a final report with recommendation that the accused persons named in the FIR should be discharged. The said Investigating Officer further made a prayer for filing prosecution report against the informant on the ground that the accusations made by the later were false.
7. On receipt of the final report, the learned Judge of the Adalat, by the impugned order, accepted the same and discharged the FIR named accused persons and further rejected the Naraji petition filed by the informant petitioner against the final report. By the same order, the learned Judge of the Adalat also accorded permission to the Investigating Officer to file a prosecution report against the informant petitioner in respect of the offence under section 211 of the Penal Code.
8. It appears from the certified copy of the impugned order dated 10-8-1998 and the Final Report No. 11 dated 26-2-1998 (Annexure-B) that the learned Judge of the Adalat passed the impugned order with an intention to proceed under section’ 476 of the Code 1898. The said section 476 empowers certain courts including a criminal court to make a’ complaint about commission of the offences specified in sections 195(1)(b) or (c) of the Code, 1898.
9. For proper appreciation of the legal position on the matter, relevant portion of sections 195(1) and 476 of the Code, 1898, are quoted below.
“195: Prosecution for contempt of lawful authority of public servants. 1) No court shall take cognizance
(a)………………
(b) (Prosecution for certain offences against public justice) of any offence punishable under any of the following sections of the same Code, namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate, or.
(c)………
(2), (3), (4), (5) ………….”
Section 195(1) of the Code, 1898 clearly restricts cognizance’ of certain offences, including the offence tinder section 211 of the Penal Code. The restrictions are referred to in section 476 of the Code, 1898 in the following terms:
“476. Procedure in cases mentioned in section 195:-
(1) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section, 195, subsection (1) clause (b) or clause (c) which appears to have been committed ‘in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in waiting signed by the presiding Officer of the Court, and shall forward the same to a Magistrate of the ‘first class having jurisdiction, and may take sufficient security for the appearance, of the accused before such Magistrate or if the alleged offence is non bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to, appear and give evidence before such Magistrate.
Provided that ………..
For the purposes of this section………………
(2), (3)………………”
10. The legislative intent of section 476 read with section 195(1), of the Code, 1898 is that prosecution and cognizance of certain offences including that under 211 of the Penal Code are to be dealt with caution. Accordingly the law has not allowed private individuals to lodge complaint against any person with the allegation that the latter initiated a false case. Because this liberty may seriously jeopardize the judicial and legal system. It may lead to a sort of anarchy. For instance, in case of failure of a criminal case in the form of dismissal of complaint, discharge or acquittal of the accused persons or otherwise, the complainant or others initiating or involved in a criminal proceeding may face the accusation of false prosecution.
11. So to avoid such probability, the law sections 476 and 195(1) require that the concerned court itself has to initiate a complaint about a false case in the manner prescribed in those provisions. The essence of these provisions are that the court must record a finding about falsehood of the case and accordingly the presiding Judge or the officer himself will make a complaint.
12. The said section requires that, for prosecuting any person in respect of offences mentioned in sections 195(1), clause (b) or (c) i.e. offences under section 211 of the Penal Code and other sections the following four pre-conditions are to be fulfilled:
a) The concerned court (Civil, Revenue or Criminal) has to form an opinion that inquiry should be made in relation to the offence under section 211 or the other sections of the Penal Code as mentioned in section 195 (1)
(b) or (c) of the Code 1898.
b) Such opinion has to be recorded as a finding by that court or by a superior court to the effect that the said offence(s) appears to have been committed.
c) After recording such finding, the presiding Judge/officer of such court himself has to make a complaint under his own signature. The superior court may however direct its subordinate court to make such complaint.
d) Then the complaint is to be forwarded to a Magistrate, First Class having jurisdiction.
13. It is noted that the Adalat was established under the Ain, 1995 (repealed by Act No. 8 of 2000) for dealing with offences specified therein. So it was a criminal court established under law and it had the lawful authority to exercise the powers under section 476 of the Code 1898. But in doing so, the Adalat or for that matter any other court specified in section 476 must comply with the aforesaid requirements.
14. But in the instant case it appears that the learned Judge of the Adalat has not done so. This will be clear from his order as quoted below:
bw_ KMwb‡RÝ wel‡q ïbvbx, Ae¨vnwZi welq ïbvbx Ges bvivwR `iLv¯Í ïbvbxi Rb¨ †ck Kiv nBj|
ïwbjvg| KvMR cÎvw` ch©v‡jvPbv Kwijvg|
ev`xc‡ÿi `vwLj bvivRxi `iLv¯Í ch©‡jvPbvq bvivRxi cÖv_©bv gbRyi Kwievi gZ m‡šÍvlRbK †Kvb KviY cwijwÿZ nq bv| ewY©Z Ae¯’vq ev`xc‡ÿi bvivRxi cÖv_©bv bvgÄyi Kiv nBj|
cieZ©x‡Z Z`šÍKvix Kg©KZ©v KZ©”K `vwLjK…Z †dŠtKvtwet 173 aviv †gvZv‡eK PzovšÍ cÖwZ‡e`b MÖnb Kiv nBj|
AZtci Avmvgx †gvQvt Av‡gbv LvZzb, †gvt Aveyj Kvjvg I †gvt Av³vi †nv‡mb Gi cÖ‡Z¨K‡K †gvKÏgvq `vq nB‡Z Ae¨vnwZ cÖ`vb Kiv nBj|
Ab¨w`‡K msev“vZv †gvt mv‡jn Avn‡¤§` kvwn‡bi weiæ‡× `twet 211 aviv †gvZv‡eK cÖwmwKDkb `vwL‡ji AbygwZ cÖ`vb Kiv nBj|
GB †cÖwÿ‡Z Av‡`‡ki Abywjwc cÖ‡qvRbxq e¨e¯’v MÖn‡bi wbwg‡Ë Z`šÍKvix Kg©KZ©v eive‡i †cÖiY Kiv nDK|
15. It is evident that the Adalat has not complied with any of the four requirements as mentioned above. He has neither formed any opinion nor recorded any finding as to whether he was satisfied about the necessity of inquiry into an offence under section 211 of the Penal Code nor did he make any complaint signed by him nor did he send it to a competent Magistrate. The learned Judge mechanically accorded permission as quoted above.
16. In view of the above we hold that the impugned order is not sustainable. It is neither a legal nor proper order and therefore it is liable to be set-aside to the extent of according permission for prosecuting the informant petitioner under section 211 of the Penal Code.
17. In the result, the Rule is made absolute.
18. The order dated 16-8-1998 passed by the learned Judge of the Nari-o-Shishu Nirjatan Daman Bishesh Adalat, Sherpur passed in Nari-o-Shishu Nirjatan Bishesh Mamla No. 32 of 1998 is hereby set-aside so far it relates to according to permission for submission of prosecution a report for under section 211 of the Penal Code against the informant petitioner.
Send copies of this judgment to the learned Sessions Judge and Nari-o-Shishu Nirjatan Daman Tribunal of Sherpur District.
