ABDUL REHMAN MAHOMED YUSUF versus MAHOMED HAJI AHMAD AGBOTWALA AND ANOTHER

IM~M J.-A complamt was filed by the appe ant 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,

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. dA h Bombay. The accused were summone . s t e 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 Mazar. khan 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 offence. Accordingly, he declined to frame a charge under ss. 385 and 389/34 and 109 of the Indian Penal Code.

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,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. Parah, an advocate, the defamatory words with which he 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, t.here 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 respondent.

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Against the decision of the Presidency Magistrate an application in revision was filed by the appellant in the High Court of Bombay Fhich was dismissed with the remark "Rejected as no offence" Thereafter the appellantobtained special leave from this Court to appeal against the decision of the High Court.

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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. Parah 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 t.he appellant was the result of knowledge obtained a.fter enquiries. The most _important of these paragraphs, so far as the respondent is concerned, is paragraph 22 which is as follows:-

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"I have also come to know as a result of mv enquiries that Accused No. 2 was seen on occasions and at the relevant time going to the office of the said advocate Mr. Parah 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 filedin the name of Accused No. I Accused No. 2 was the real

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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 repu.t.at.ion 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 Penal Code.

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At the trial the charge which had been framed against the respondent was .as follows :-

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" I, H. G. Mahimtura, Presidency Magistrate, hereby charge you Mohomed Haji Ahmed Agbotwala. as follows :-

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"That you on or about 13-10-52 at Bombay defamed Abdul Rehman Mohamed Yusuf by making or publishing to witnesfi N.K. Parah 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 imputations 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 cognizance.

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"And I hereby direct that you be tried on the said charge.

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" Charge explained.

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"Accused pleads not guilty." It will be noticed that this charge asserts that the respondent had uttered defamatory words to the advocate N. K. Parah. It had not been asserted as a fact in the complaint that the respondent had uttered any defamatory words to Mr. Parah. 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 Parah aud himRclf and in the liling of the complaint by Phirozbai Mazarkhan against the appellant.

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It was urged on behalf of the appellant that the Presid~ncy Magistrate having found tho,t the respondent had uttered the words mentioned in the charge to the advocate Parah, 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 com pla.int in respect thereof. It was also urged that if the complaint was read. as a whole indicated that the respondent must have uttered the words, the subject matter of the charge, and that those words were not uttered to Mr. Parah by Phirozbai 1\fazarkhan 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 mmcellation 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.

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On behalf of the respon:lent 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 prohib1ted 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. Parah. This was a separate offence though of the same kind from the offence mentioned in the complaint.

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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. Parah 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 Parah 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.

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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.

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It·seems to us that on the findings of the Presidency Magistr.ate, he could not have recorded an order of acqmttal. The complaint as filed was not with reference to any alleged defamatory words uttered by the respondent to Mr. Parah. Although the Presidency Magistrate believed the evidence of Mr. Parah 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.

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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. HIS 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 1,his section specifically states that the provisions of this section do not authorise the conviction of an offence referred to ins. 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.

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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.

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In this appeal this Court can do what the High Court could have done. We accordtngly allow the appeal and set aside the order of ac<Juittal made by the Presidency Magistrate but, on the finding of the Presidency lifagistrate that no offence of conspiracy or abetment arisi11g therefrom had be~n established, we direct that the present complaint be dismissed. The respondent is accordingly discharged.

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Appeal allowed. JETHANAND BETAB

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v. THE STATE OF DELHI (now Delhi AdminiHtration) J and K. JJ.)

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of-

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Amendi1~ Act-Whether II 6(rA)-Indian (XXXI

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III

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r879 (X of

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Section 3 of the Indian Wireiess Telegraphy Act, 1933 provided that no person shall possess wireless telegraphy apparatus without a licence and s. G made such possession punishable. The Indian Wireless Teleg-raphy (Amendment) Act, 1949, introduced in the 1933 Act, which provider! for a heavier sentence for possession of wireless transmitter without a licence. The Repealing and Amending Act, 1952, repealed the whole of the Amendment Act of 1949, hut by s. 4 provided that the repeal shall not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to. The appellant was convicted under 6(1A) for being in possession of a wireless transmitter on July 31, 1953· He contended that s. 6(rA) had been repealed and his conviction and sentence thereunder could not be sustained.

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thats. 6(1A) was saved bys. 6A of the General Clauses Act, 1897, though s. 4 of the Repealing and Amending Act, 1952, did not save it.

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