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state of west bengal

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Ganga Rape of a woman – Reliefs to victim granted by Apex court – who loved other cast man , by the order of cast panchayat elders – Apex court taken suomoto case and order for investigation and obtained report and Apex court held that we are of the view that the victim should be given a compensation of at least Rs. 5 lakhs for rehabilitation by the State. We, accordingly, direct the Respondent No. 1 (State of West Bengal through Chief Secretary) to make a payment of Rs. 5 lakhs, in addition to the already sanctioned amount of Rs. 50,000, within one month from today and that Directed to registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and the Police officers are duty bound to register the same. and directed that Likewise, all hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, are statutorily obligated under Section 357C to provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under Sections 326A, 376, 376A, 376B, 376C, 376D or Section 376E of the IPC.=1 SUO MOTU WRIT PETITION (CRIMINAL) NO. 24 OF 2014 In Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News dated 23.01.2014= 2014 (March . Part) judis.nic.in/supremecourt/filename=41349

Ganga Rape of a woman – Reliefs to victim granted by Apex court – who loved other cast man , by the order of cast panchayat elders – Apex court taken suomoto case and order for investigation and obtained report and Apex court held that  we  are  of  the  view that the victim should be given a compensation of at … Continue reading

service matter – In the absence of public Advertisement, no posts should be filled from the selected list =there was no advertisement for direct recruitment the select list was quashed.the apex court held that There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. = sec. “4. Vacancies to be filled up by persons sponsored by employment exchange. – After the commencement of this Act, all vacancies in the posts in any Government establishment or establishment of any public undertaking, statutory body, Government company or local authority shall be filled up by such persons as may be sponsored by an employment exchange.” – sec.6 Employment exchange to submit list of registrants to appointing authority – The employment exchange shall, on receipt of the requisition under section 5, submit to the appointing authority a list of registrants, other than the registrants who belong to the exempted category, in order of seniority determined on the basis of the length of the period of registration in that employment exchange and in accordance with such principle of rotation as the Director of Employment may prescribe from time to time, and also in conformity with the qualification, age, experience or other requirement, if any, as stated in the requisition.”- The Act provides that the persons are to be selected from the candidates sponsored by the employment exchange. It is admitted by the learned counsel for the State that on the basis of the statutory command names were called for from the employment exchange. As stated earlier, he would clarify that though the names were called for from the employment exchange, the process of selection was not restricted to only the sponsored candidates. In essence, the submission of the learned counsel for the appellants and the learned counsel for the State that when thousands of candidates had appeared, though not sponsored by the employment exchange, the panel prepared after following due procedure should not have been quashed. – There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. The number of posts available was 1446 in the group ‘D’ category. For the said posts more than 57000 candidates competed. On a querry being made, the learned counsel for the State would admit that the vacancies have not been filled up because of pendency of litigation. Regard being had to the special features of the case, we are inclined to set aside the order of the High Court and that of the tribunal and we so do. We further direct the State Government to fill up the posts available from among the select list. We may hasten to clarify that if any one whose name features in the select list has been appointed in any other department or statutory organization or Government company, he cannot claim an appointment in the Department of Irrigation and Waterways. We further direct the respondent-State and its functionaries to adjust respondents 1 and 2 and extend them the benefit of appointment. The appointees cannot claim any seniority with retrospective effect as that might create cavil amongst the appointees in other departments at earlier point of time. The aforesaid exercise shall be completed within a period of eight weeks from today. 13. The appeals are disposed of in above terms. However, there is no order as to costs.

  published in http://judis.nic.in/supremecourt/filename=40651 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos. 6748-6749 OF 2013 (Arising out of SLP (C) Nos. 6177-6178 of 2012) Buddhadeb Ruidas & ors. etc. etc. … Appellants Versus State of West Bengal and ors. …Respondents With CIVIL APPEAL Nos. 6750-6751 OF 2013 (Arising out of SLP (C) … Continue reading

only male apart from PW- 1 Tarak, the father of the deceased, who was present on the fateful night with deceased Pampa in their house was the appellant. The house was locked from inside. Therefore, we have no hesitation in confirming the concurrent findings recorded by the trial court and the High Court on minute examination of the evidence that it is the appellant who was responsible for the rape and murder of deceased Pampa. The accused did not run away from the scene of offence. We find no substance in this submission. In the facts of this case, if the appellant had ran away, that would have, in fact, weakened his case and strengthened the prosecution case. The decision to remain at the spot appears to be a calculated one. In the circumstances, we are of the opinion that the prosecution has established its case beyond reasonable doubt. There is no merit in the case. 14. The appeal is dismissed.

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1591 OF 2007 KASHINATH MONDAL … APPELLANT Vs. STATE OF WEST BENGAL … RESPONDENT   JUDGMENT (SMT.) RANJANA PRAKASH DESAI, J. 1. The appellant – Kashinath Mondal was tried by the Additional Sessions Judge, Arambagh, Hooghly in S.T. Case No.66 of 2000 for … Continue reading

. Insofar as the issue with regard to the arrest of the accused on 15.03.1990 is concerned we find that, the evidence of PW 16 – the Investigating Officer of the case does contain an explanation for the production of the accused before the learned Magistrate on 17.03.1990 despite his arrest on 15th March. If the said evidence of PW 16 is to be reasonably read, the prosecution version of the arrest of the accused on 15th of March remains unaffected. From the evidence of Investigating Officer it is also clear that the statement of the accused leading to the recovery of dead body was made while he was in custody and the same was in the presence of police officers, though, at that time some other persons were also present in the police station. The recovery of the dead body, therefore, is a fact which is admissible in evidence under Section 27 of the Evidence Act. The absence of identification of the accused by PW 15 at the time of recovery of the dead body, according to us, will not affect the core of the prosecution case. Insofar as the alleged defects in the examination of the accused under Section 313 Cr.P.C. is concerned, having perused the record, we find that all incriminating circumstances relevant to the case had been put to the accused and no material irregularity causing any prejudice to the accused can be attributed to the prosecution in this regard. All the circumstances relied upon by the prosecution, therefore, can be held to be proved beyond reasonable doubt. The said circumstances, in our considered view, are more than adequate to enable us to come to the conclusion that the conviction of the accused so far as the offences under Sections 302 and 201 IPC is concerned had been correctly made in the facts and circumstances of the present case. We therefore affirm the aforesaid part of the order of the High Court. 10. Insofar as the offence under Section 364 IPC is concerned, we have considered the materials on record on the basis of which the aforesaid offence has been held to be proved. According to us, the action of the accused in bringing back his wife to the matrimonial home from the house of PW 6 – Bishu Murmu cannot attract the necessary ingredients of either the offence of kidnapping or abduction so as to attract Section 364 IPC. 11. Consequently this appeal is partly allowed. The conviction and sentence under Sections 302 and 201 IPC is maintained whereas the conviction under Section 364 IPC and the sentence imposed is set aside.

  IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1357 OF 2008 Chunda Murmu ….Appellant Versus State of West Bengal ….Respondent   J U D G M E N T   RANJAN GOGOI, J. This appeal, by special leave, is directed against the judgment dated 10.04.2006 passed by the High Court … Continue reading

Murder case = when there is no prejudice in non – putting a certain question to the accused in 313 of cr.p.c is not fatal to the prosecution = 16. We find that the High Court has held in the impugned judgment that all the eyewitnesses have given a vivid and true account of the incident and had seen the occurrence on close range and as they were residents of the locality they had no problem in identifying the assailants and there was nothing on record suggesting that they nurtured ill feeling and harboured enmity against the appellant and that the evidence of the eyewitnesses was consistent and finds due corroboration from the post mortem report. In our considered opinion, the High Court has rightly sustained the conviction of the appellant on the evidence of four eyewitnesses as corroborated by the medical evidence.

Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1195 of 2006 Sayed Darain Ahsan @ Darain …… Appellant Versus State of West Bengal & Anr. …… Respondents J U D G M E N T A. K. PATNAIK, J. This is an appeal by way of special leave under Article … Continue reading

Bail or Jail =the parameters laid down by this Court for considering grant of bail to an accused include the likelihood of his absconsion and tampering with the evidence or the witnesses or even the investigation. Tampering with the evidence or the investigation is no longer relevant since charge-sheet has already been filed in the case. As far as absconsion is concerned, the Appellant being a sitting MLA, even such a possibility is remote. There is, of course, the possibility that the Appellant may tamper with the witnesses

REPORTABLE     IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION     CRIMINAL APPEAL NO.310 OF 2012 (Arising out of SLP(Crl) No.9350 of 2011)     SUSANTA GHOSH … APPELLANT   Vs.   STATE OF WEST BENGAL … RESPONDENT     O R D E R     ALTAMAS KABIR, J.   … Continue reading

the recruitment process for the post of a Homoeopathic Officer for a Gram Panchayat Level Dispensary situated at Jhilu–I Gram Panchayat under Mongalkote Block in the district of Burdwan= the Guidelines for engagement of part-time Homoeopathic doctors in the Gram Panchayat Level Dispensaries are not related to the Guidelines for engagement of ‘AYUSH’ doctors for Gram Panchayat Level Dispensaries which falls under the National Rural Health Mission. As such, the ad-interim prayer of the petitioner is not entertained since this Court is, prima facie, satisfied that the Guidelines for recruitment of ‘AYUSH’ doctors is under a separate Scheme altogether which has no rational nexus with the Guidelines as contained in the notification dated 22nd February, 2010

1 43 11.01.2012 pg. WP No. 22635 of 2011 Dr. Abdul Basar Vs. State of West Bengal & Ors. Mr. Subir Sanyal Mr. Saikat Banerjee Md. Hasanuz Zaman … For the petitioner Mr. Ram Mohan Pal … For the State Supplementary affidavit filed by the petitioner in Court today be kept on record. The petitioner … Continue reading

kidnapping or abduction was for ransom.= To attract the provisions of Section 364-A what is required to be proved is: (1) that the accused kidnapped or abducted the person; (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom…..”

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2248 OF 2011 (Arising out of SLP (Crl.) No. 1321 of 2011) Akram Khan …. Appellant(s) Versus State of West Bengal …. Respondent(s) J U D G M E N T P. Sathasivam, J. 1) Leave granted. 2) This appeal is directed … Continue reading

Penal Code, 1860: s.499 – Defamation – Meaning and Ingredients of – Held: The offence of defamation is the harm caused to reputation of a person – To constitute “defamation”, there must be an imputation and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. s.499, Tenth Exception – Charges of defamation – Ambit and scope of – Held: For invoking the aid of Tenth Exception to s.499 IPC, both “good faith” and “public good” have to be established by the accused – However, no rigid test for deciding whether the accused acted in “good faith” and for “public good” under the said Exception can be laid down – The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom imputation is allegedly made – On facts, case for quashing the complaint u/s. 482 Cr.P.C. not made out – Code of Criminal Procedure, 1973 – s. 482. Code of Criminal Procedure, 1973 – s.482 – Inherent powers of the High Court – Scope and ambit of – Discussed. The Chartered Financial Analysts Institute (CFA Institute) is a non stock corporation, incorporated under the laws of the State of Virginia, United States, which confers the designation of Chief Financial Analyst (CFA) upon its members who fulfil a minimum professional criterion. Appellant no.1 is the President and Chief Executive Officer of the CFA Institute, while appellant no.2 is the President of the Indian Association of Investment Professionals and a member of the CFA Institute. In the year 1985, on being approached by respondent no.2- Institute of Chartered Financial Analysts of India (ICFAI), the CFA Institute had entered into a licence agreement with them to conduct its CFA program in India. The agreed arrangement continued for quite some time, whereafter the CFA Institute decided to wean off its arrangement with respondent No.2 as it felt that the latter was not adhering to the required standards and quality in the said program; and issued a notice of termination of its licence. Subsequently, in the year 2004, the CFA Institute filed a civil suit in the High Court of Delhi for permanent injunction restraining respondent No.2 from using the trade marks, services, service marks or trade name CFA, Chartered Financial Analyst, The Institute of Chartered Financial Analysts of India, ICFA and ICFAI or any other name or mark identical or deceptively similar to these marks and passing off CFA Institute Programs or business as that of CFA Institute. The High Court granted interim injunction against respondent no.2. However, respondent No.2, through its sponsored University in Tripura, issued advertisement inviting applications for fresh enrolments for award of “CFA” certification. According to the CFA Institute, since the programmes which were continuing at the time of passing of the order of interim injunction by the High Court of Delhi had come to an end, the invitation for fresh enrolment in terms of the said advertisement was for subsequent programmes, which were not in existence at the time of the interim injunction order and, therefore, it was in breach of the said interim injunction. Accordingly, the CFA Institute issued a public notice under the caption “A Word of Caution to the Indian Investment Community”. Alleging that the said public notice was defamatory within the meaning of s.499 IPC, respondent No.2 filed a private complaint against the appellants for offence under s.500 r/w s.34 of IPC. The gravamen of the allegations made in the complaint was that the CFA Institute, through appellant no.1, issued the offending “Word of Caution” wherein they: (1) deliberately and consciously did not publish the full text of the interim injunction order granted by the High Court against respondent No.2; they did not mention that order was with a rider that it will not come into effect till the end of the current academic session of CFA programme run by respondent no.2 and that the defamatory advertisement portrays that the designation given by CFA Institute is the only valid designation and the CFA certificate given by respondent no.2 is not valid. According to the respondent no.2, this was a malicious act on the part of appellant No.1, with the intention to harm its reputation in the estimation of the public in general and its present and past students in particular and, therefore, the appellants are liable to be punished under s.500 r/w s.34 IPC. The trial court took cognizance of the complaint and issued summons to the appellants. The appellants filed petition under s.482 CrPC seeking quashing of the complaint. The High Court dismissed the petition. Before this Court, the question which arose for consideration was whether the allegations projected in the complaint against the appellants, did not constitute an offence of “defamation” as defined in s.499 IPC and hence did not attract the penal consequences envisaged in s.500 IPC, and therefore, it was a fit case where the High Court in exercise of its jurisdiction under s.482 CrPC should have quashed the complaint. =Dismissing the appeal, the Court HELD: 1. Section 482, CrPC envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the CrPC; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. The power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. However, the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice. [Para 16] [143-E-G; 144-A-B] R.P. Kapur v. State of Punjab AIR 1960 SC 866; Dinesh Dutt Joshi v. State of Rajasthan (2001) 8 SCC 570 and Som Mittal v. Government of Karnataka (2008) 3 SCC 753, relied on. 2.1. To constitute “defamation” under s.499 IPC, there must be an imputation and such imputation must have been made with intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. In essence, the offence of defamation is the harm caused to the reputation of a person. It would be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged. However, as per Explanation 4 to the Section, no imputation is said to harm a person’s reputation, unless that imputation directly or indirectly lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, in the estimation of others or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful. [Paras 24 and 25] [149-C-F] 2.2. As regards the argument of the appellants that since the “Word of Caution” was issued in “good faith” for the benefit of those who were planning to acquire CFA Certificate, and the same being for the “public good”, the case falls within the ambit of Tenth Exception to s.499 IPC and, therefore, the appellants cannot be held liable for defamation, it is plain that in order to bring a case within the scope of the Tenth Exception, it must be proved that statement/publication was intended in “good faith” to convey a caution to one person against another; that such caution was intended for the good of the person to whom it was conveyed, or of such person in whom that person was interested, or for the “public good”. The appellants issued the offending “Word of Caution” ostensibly in order to warn those who were either planning to hire an investment professional or to obtain a CFA designation that there was an interim injunction against respondent No.2 from using their afore-noted trademarks. However, it cannot be denied that while the publication refers to the interim order passed by the High Court, it omits to mention that the said injunction will not come into effect till the end of current academic session of the CFA programme, and that the order would not mean expression of final opinion on the matter. [Paras 26, 28 and 31] [149-G; 150-C; 151-B-F] 2.3. It is trite that where to the charge of defamation under s.500 IPC, the accused invokes the aid of Tenth Exception to s.499 IPC, “good faith” and “public good” have both to be established by him. The mere plea that the accused believed that what he had stated was in “good faith” is not sufficient to accept his defence and he must justify the same by adducing evidence. However, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. It is well settled that the degree and the character of proof which an accused is expected to furnish in support of his plea cannot be equated with a degree of proof expected from the prosecution in a criminal trial. The moment the accused succeeds in proving a preponderance of probability, onus which lies on him in this behalf stands discharged. Therefore, it is neither feasible nor possible to lay down a rigid test for deciding whether an accused person acted in “good faith” and for “public good” under the said Exception. The question has to be considered on the facts and circumstances of each case, having regard to the nature of imputation made; the circumstances on which it came to be made and the status of the person who makes the imputation as also the status of the person against whom imputation is allegedly made. These and a host of other considerations would be relevant and required to be considered for deciding appellants’ plea of “good faith” and “public interest”. However, all these are questions of fact and matters for evidence. [Para 32] [151-G-H; 152-A-E] 2.4. In the instant case, the stage for recording of evidence had not reached and, therefore, in the absence of any evidence on record, it is difficult to return a finding whether or not the appellants have satisfied the requirements of “good faith” and “public good” so as to fall within the ambit of the Tenth Exception to s.499 IPC. Similarly, it will neither be possible nor appropriate for this Court to comment on the allegations levelled by respondent No.2 and record a final opinion whether these allegations do constitute defamation. Reading the complaint as a whole, it is difficult to hold that a case for quashing of the complaint under s.482 CrPC has been made out. For the afore-going reasons, the High Court was right in refusing to quash the complaint under s.500 IPC. [Paras 33 and 34] [152-G-H; 153-A] State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335; Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi & Ors. (1996) 6 SCC 263; Rajendra Kumar Sitaram Pande & Ors. v. Uttam & Anr. (1999) 3 SCC 134; Sewakram Sobhani v. R.K. Karanjia, Chief Editor, Weekly Blitz & Ors. (1981) 3 SCC 208; M.N. Damani v. S.K. Sinha & Ors. (2001) 5 SCC 156; Shriram Refrigeration Industries v. Hon’ble Addl. Industrial Tribunal-Cum-Addl. Labour Court, Hyderabad & Ors. (2002) 9 SCC 708; Chand Dhawan (Smt) v. Jawahar Lal & Ors. (1992) 3 SCC 317; Jagir Kaur & Anr. v. Jaswant Singh [1964] 2 S.C.R. 73; State of Bihar & Ors. v. Shyam Yadav & Ors. (1997) 2 SCC 507 and D.S. Parvathamma v. A. Srinivasan (2003) 4 SCC 705, referred to. Case Law Reference: 1992 Supp. (1) SCC 335 referred to Para 9 (1996) 6 SCC 263 referred to Para 9 (1999) 3 SCC 134 referred to Para 9 (1981) 3 SCC 208 referred to Para 10 (2001) 5 SCC 156 referred to Para 10 (2002) 9 SCC 708 referred to Para 10 (1992) 3 SCC 317 referred to Para 12 (2008) 3 SCC 753 relied on Para 12 [1964] 2 S.C.R. 73 referred to Para 14 (1997) 2 SCC 507 referred to Para 14 (2003) 4 SCC 705 referred to Para 14 AIR 1960 SC 866 relied on Para 17 (2001) 8 SCC 570 relied on Para 18 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1079 of 2010. From the Judgment & Order dated 18.11.2008 of the High Court of Calcutta in C.R.R. No. 523 of 2008. Shanti Bhushan, Rajendra Kr, Nitya Ramakrishnan, Sanjai Kumar Pathaak, Priya Rao, for the Appellants. K.K. Venugopal, Y.Raja Gopala Rao, Y. Ramesh, Y. Vismai Rao, Pooja Dhir, H.K. Puri for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1079 OF 2010 (Arising out of S.L.P. (Criminal) No. 898 of 2009) JEFFREY J. DIERMEIER & ANR. — APPELLANTS VERSUS STATE OF WEST BENGAL & ANR. — RESPONDENTS JUDGMENT D.K. JAIN, J.: Leave granted. 2. This appeal, by special leave, arises from … Continue reading

Defamation =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 =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 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 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 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 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 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 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 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.

Image via Wikipedia 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 … Continue reading

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