Abdul Rehman Mahomed Yusuf Vs. Mahomed
Haji Ahmad Agbotwala & ANR  INSC 119 (15 September 1959)
SYED JAFFER WANCHOO, K.N.
CITATION: 1960 AIR 82 1960 SCR (1) 749
CITATOR INFO :
RF 1976 SC1750 (4)
Criminal Procedure--Defamation-Facts stated
in the charge not mentioned in the complaint-Separate complaint if necessary
Code of Criminal Procedure, 1898 (V of 1898), ss. 198 and 238(3).
The appellant filed a complaint against the
respondent and another under s 385, 389, 500/109 of the Indian Penal Code.
The Trial Court found that there was no
conspiracy to defame the appellant or to extort money from him and a charge
under S. 500 Indian Penal Code only was framed against the respondent. It was
found that the facts mentioned in the charge were not stated in the complaint.
The Trial Court holding that a separate complaint should have been filed in
respect of the offence with which the respondent was charged, acquitted him.
The High Court rejected the appellant's application for revision of the order
of the Trial Court with the remark " rejected as no offence The appellant
appealed by special leave.
Held, that the offence charged was a separate
offence, although of the same kind, from the offence in respect of which the
facts had been stated in the complaint. For this separate offence a separate
complaint should have been filed in accordance with the provisions of s. 198 of
the Code of Criminal Procedure. The Provisions of s. 198 of the Code of
Criminal Procedure are mandatory. In appeal the Supreme Court could do what the
High Court could have done The order of acquittal of the respondent was a
nullity, and the proper order should be one of discharge.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 174 of 1956.
Appeal by special leave from the judgment and
order dated the April 15, 1955, of the Bombay High Court, in Criminal Revision
Application No. 392 of 1955, arising out of the judgment and order dated
December 14, 1954, of the Presidency Magistrate, 15th Court Mazagaon, Bombay in
Case No. 532/S of 1953.
E. B. Ghasvala and I. N. Shroff, for the
C. B. Aggarwala, J. B. Dadachanji, S. N.
Andley and Rameshwar Nath, for respondent No. 1.
H. J. Umrigar, R. H. Dhebar and T. M. Sen,
for respondent No. 2.
95 750 1959. September 15. The Judgment of
the Court was delivered by IMAM J.-A complaint was filed by the appellant on
the 4th of December, 1953, against the respondent Agbotwala and one Phirozbai
Mazarkhan under ss. 385, 389 and 500/34 and 109 of the Indian Penal Code in the
Presidency Magistrate's 15th Court, Mazagoan, Bombay. The accused were
summoned. As the accused Phirozbai Mazarkhan could not be produced the trial
produced against the respondent Agbotwala (hereinafter referred to as the
respondent) only. The Presidency Magistrate was not satisfied, on the evidence,
that the respondent and Phirozbai Mazarkhan had conspired either to defame the
appellant or to extort money from him. He also held that there was no evidence
to show that the respondent knew that Phirozbai Mazarkhan was committing on
Accordingly, he declined to frame a charge
under ss. 385 and 389134 and 109 of the Indian Penal Code.
The Presidency Magistrate, however, framed a
charge under s. 500, I.P.C., against the respondent who pleaded not guilty.
He was of the opinion, after the
consideration of the evidence, that the respondent had on the 13th of October,
1952 uttered before Mr. Parab, an advocate, the defamatory words with which be
was charged. He was further of the opinion that s. 198 of the Code of Criminal
Procedure stood in the way of his taking cognizance. Although the complaint had
been made by the person aggrieved, there was no mention therein of the facts
which formed the subject matter of the offence with which the respondent had
been charged. The complainant, namely, the appellant not having mentioned the
facts which constituted the offence with which the respondent had been charged,
the charge had been wrongly framed. The Presidency Magistrate was of the
opinion that a complaint should have been filed in respect of the offence with
which the respondent had been charged. As that had not been done in the recent
case the charge had been wrongly framed. He accordingly acquitted the
Against the decision of the Presidency
Magistrate an application in revision was filed by the appellant in 751 the
High Court of Bombay which was dismissed with the remark "Rejected as no
offence". Thereafter the appellant obtained special leave from this Court
to appeal against the decision of the High Court.
When the appellant filed his complaint before
the Presidency Magistrate he referred to the nature of the defamatory statement
made by Phirozbai Mazarkhan which was contained is the notice sent to him by
Mr. N. K. Parab on behalf of his client Phirozbai Mazarkhan. After giving good
many details of the correspondence which ensued thereon, he referred to the
part played by the respondent in paragraphs 19 to 24 of the complaint. Whatever
was alleged by the appellant was the result of knowledge obtained after
enquiries. The most important of these paragraphs, so far as the respondent is
concerned, is paragraph 22 which is as follows:- " 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
Mazagoan 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." The appellant
then finally alleged that Phirozbai Mazarkhan and the respondent had conspired
together and in furtherance of their common intention attempted to put him in
fear of injury in body and reputation and in property and that they did so with
the object of committing extortion. He accordingly asserted that the accused
had committed offences under ss. 385, 389 and 500/34 and 109 of the Indian
At the trial the charge which had been framed
against the respondent was as follows:- " I, H. G. Mahimtura, Presidency
Magistrate, hereby charge you Mohomed Haji Ahmed Agbotwala as follows :- "
That you on or about 13-10-52 at Bombay defamed Abdul Rehman Mohamed Yusuf by
making 752 or publishing to witness N.K. Parab certain imputations concerning
the said Abdul Rehman to wit that a woman named Phirozbai Mazarkhan was in his
keeping, that he had promised to marry her but did not keep his promise and
that he cheated her of her ornaments worth about Rs. 30,000 by means of spoken
words intending to harm or knowing or having reason to believe that such
amputations would harm the reputation of the said Abdul Rehman and you thereby committed
an offence punishable under section 500 of the Indian Penal Code and within my
" And I hereby direct that you be tried
on the said charge.
" Charge explained.
" Accused pleads not guilty." It
will be noticed that this charge asserts that the respondent had uttered
defamatory words to the advocate N.
K. Parab. It had not been asserted as a fact
in the complaint that the respondent had uttered any defamatory words to Mr.
Parab. The utmost which had been asserted therein against the respondent was
that he was instrumental in connection with the correspondence that ensued
between the advocate Parab and himself and in the filing of the complaint by
Phirozbai Mazarkhan against the appellant.
It was urged on behalf of the appellant that
the Presidency Magistrate having found that the respondent had uttered the
words mentioned in the charge to the advocate Parab, he should not have
acquitted the respondent as s. 198 of the Code of Criminal Procedure was no
real impediment in the way of the Presidency Magistrate. He had taken
cognizance of an offence under s. 500/34 and 109 of the Indian Penal Code on
the complaint filed by the appellant. If at the trial it appeared that an
offence under s. 500 only had been committed it was open to the Presidency
Magistrate to take cognizance of that offence without the necessity of a
separate complaint in respect thereof. It was also urged that if the complaint
was read as a whole it indicated that the respondent must have uttered the
words, the subject matter of the charge, 753 and that those words were not
uttered to Mr. Parab by Phirozbai Mazarkhan only. Finally, it was suggested
that even if it be assumed that for the charge framed a separate complaint
should have been filed and no cognizance could be taken for the offence charged
in view of s. 198 of the Code of Criminal Procedure and that the Presidency
Magistrate was right in his opinion that he had wrongly framed such a charge,
it was his duty to make a reference to the High Court for the cancellation of
the charge. The Presidency Magistrate acted without jurisdiction in proceeding
further with the case and recording an order of acquittal on the ground that a
complaint stating the facts, upon which the present charge could have been
framed, had not been filed.
On behalf of the respondent it was urged that
the Presidency Magistrate correctly acquitted the respondent as there was no
complaint for the offence as charged and s. 198 of the Code of Criminal
Procedure prohibited him from taking cognizance of the offence mentioned in the
charge. It was pointed out that the offence of defamation could be committed on
several occasions. The charge, as framed, referred to the defamatory words
alleged to have been uttered by the respondent to Mr. Parab. This was a separate
offence though of the same kind from the offence mentioned in the complaint.
It was further pointed out that although the
Presidency Magistrate had expressed the opinion that the respondent had uttered
the defamatory words charged to Mr. Parab he had given no grounds upon which he
came to this conclusion. If the entire evidence and the attending circumstances
were taken into consideration it was clear that the evidence of Parab could not
be believed. Even if it be assumed that the Presidency Magistrate wrongly
acquitted the accused this was not a case in which the order of acquittal
should be set aside.
The submissions made on behalf of the
appellant and the respondent were advanced with skill and elaborate arguments
were urged in support of the respective contentions.
754 It seems to us that on the findings of
the Presidency Magistrate, he could not have recorded an order of acquittal.
The complaint as filed was not with reference to any alleged defamatory words
uttered by the respondent to Mr. Parab. Although the Presidency Magistrate
believed the evidence of Mr. Parab he was of the opinion that he wrongly framed
the charge as the complaint did not state the facts which constituted the
offence with which the respondent had been charged. In such a situation the
Presidency Magistrate, instead of proceeding to record an order of acquittal,
should have brought the matter to the notice of the High Court so -that the
error might be corrected. As the matter is before us in appeal we can do that
which the High Court could have done.
In our opinion, the offence charged was a
separate offence although of the same kind from the offence in respect of which
the facts has been stated in the complaint. For this separate offence a
complaint should have been filed and the provisions of s. 198 of the Code of
Criminal Procedure complied with. In our opinion the provisions of that section
are mandatory. Even in s. 238 of the Code of Criminal Procedure the importance
of the provisions of s. 198 or s. 199 of the Code is emphasised. Cl. (3) of
this section specifically states that the provisions of this section do not
authorise the conviction of an offence referred to in s. 198 or 199 when no
complaint has been made as required by these sections. The Presidency Magistrate
wrongly framed the charge, as on the record, when in respect of the offence
charged there was no complaint filed and the facts as stated in the complaint
actually filed did not make out the offence as charged.
It is clear from the findings of the Presidency
Magistrate that the offence of conspiracy and abatement, as alleged in the
complaint actually filed, had not been established. He should have then
discharged the accused and refrained from framing a charge for an offence in
respect of which there was no complaint before him as required by s. 198 of the
Code of Criminal Procedure. He had no jurisdiction to frame the charge he had
framed. His order of acquittal, therefore, must be regarded as a nullity.
755 In this appeal this Court can do what the
High Court could have done. We accordingly allow the appeal and set aside the
order of acquittal made by the Presidency Magistrate but, on the finding of the
Presidency Magistrate that no offence of conspiracy or abetment arising
therefrom bad been established, we direct that the present complaint be
dismissed. The respondent is accordingly discharged.