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Petitioner: TEJA SINGH VS Respondent: S. KISHEN SINGH
P L D 1949 Lahore 477
P L D 1949 Lahore 477
(FULL BENCH)
Before Cornelius, Muhammad Munir and Muhammad Jan, JJ
TEJA SINGH‑Petitioner
Versus
S. KISHEN SINGH‑Respondent
Criminal Revision No. 1704 of 1946, decided on 22nd December 1947, under section 439, Criminal Procedure Code, of the order of Sessions Judge, Lahore, dated 4th April, 1946.
This Revision was referred by Sir Abdul Rashid, J, to a Division Bench consisting of S. A. Rahman and Ram Lal, JJ. and the Division Bench referred it to the above Full Bench.
Penal Code (XLV of 1860), S. 211‑"Criminal proceeding Moving a Magistrate under S. 107, Criminal Procedure Code (V of 1898) becomes "criminal proceeding" within meaning of S. 211, Indian Penal Code after issue of notice to respondent‑Before issue of notice, false or malicious information to Magistrate under S. 107, Criminal Procedure Code covered not by S. 211 but by S. 182, Indian Penal Code.
A person who moves a Magistrate to take action against another falling under section 107 of the Code is the person who "institutes" the "proceeding", commencing with the issue of notice to such other person by the Magistrate, should such a notice be issued. Where, how ever, the Magistrate refuses to make such a demand, there is no "criminal proceeding", and if the complaint be false and malicious, the sanction in law would be provided, not by section 211, Indian Penal Code, but by section 182, Indian Penal Code.
The feature of a criminal proceeding, which distinguishes it from a civil proceeding, is that it lies in a Criminal Court under the adjective law, while a civil proceeding lies in a Civil Court. Both preponderance of authority and the argument a Priori lead to the conclusion that the true meaning of the expression "criminal proceeding" is a proceeding which lies under the law of procedure in a Criminal Court and which is in accordance with some requirement of or is preformed under some power conferred by the relevant procedural provisions.
The mere making of a complaint (the word being used in a general sense and not in the technical sense of Criminal Procedure Code) whether orally or in writing, against a person under section 107, Criminal Procedure Code and any steps which the Magistrate may take to verify the truth of the allegations before he issues notice to the opponent are not within the expression "criminal proceeding". But the issue of such a notice by the Magistrate, being the first positive act which is provided for by the procedural law, and all the subsequent steps for which provision is made in sections 112 to 119 are clearly within the definition
I L R 27 Mad. 510, relied on.
[Case‑law discussed].
Muhammad Fazil for Petitioner.
Abdul Karim for Respondent.
Nemo for the Crown.
Order
Abdul Rashid, J.----‑ On the 4th of May 1945, Teja Singh petitioner presented an application in the Court of Mian Hakim‑ud‑Din, Magistrate 1st Class, stating that eleven persons one of whom was Kishen Singh, were conspiring to murder him and that security may be demanded from these eleven persons under section 107 of the Criminal Procedure Code. After taking some evidence, the learned Magistrate dismissed the application of Teja Singh and refused to demand any security from Kishen Singh and others.
After the termination of the proceedings under section 107, Criminal Procedure Code, Kishen Singh presented an application suggesting that a complaint should be presented by the learned Magistrate against Teja Singh for the commission of an offence under section 211 of the Indian Penal Code. It was argued in the Magistrate's Court that proceedings under section 107 of the Code of Criminal Procedure were not criminal proceedings and that therefore no action could be taken against Teja Singh under section 211 of the Indian Penal Code. This argument was repelled by the learned Magistrate. Against this order a petition for revision was preferred in the Court of the learned Sessions Judge. This petition was summarily dismissed. Teja Singh has accord ingly preferred a petition for revision to this Court.
The learned counsel for the petitioner quoted a number of rulings to the effect that proceedings under section 107 of the Code of Criminal Procedure could not be regarded as a 'criminal case'. He also contended that an application for action under section 107 of the Criminal Procedure Code could not be regarded as a 'complaint'. It was maintained by the learned counsel that in these circumstances no complaint under section 211 of the Indian Penal could be preferred against Teja Singh.
The main question for determination in this petition .for revision is whether the words 'criminal proceedings' are synonymous with the words `criminal case'. On this point, no authority has been quoted before me. It may be that the words 'criminal proceeding' as used in section 211 of the Indian Penal Code have a wider connotation than the words 'criminal case', or it may be that the words 'criminal proceeding' are synonymous with the words criminal case'. This is an important question which requires an authoritative pronouncement by a Division Bench. I accordingly refer this petition to a Division Bench for decision.
Order of the Division Bench
S. A. Rahman, J.‑-- The question that requires determination in this case is whether the proceedings under section 107, Criminal Procedure Code, are tantamount to a "criminal proceedings" within the meaning of section 211, Indian Penal Code. Teja Singh, the petitioner in the present case had instituted proceedings under section 107, Criminal Procedure Code against Kishen Singh, respondent, in the Court of a Magistrate 1st Class, Lahore. His petition was dismissed and Kishen Singh then moved the learned Magistrate under section 476, Criminal Procedure Code, praying that Teja Singh should be prosecuted under section 211, Indian Penal Code, for having instituted criminal proceedings against Kishen Singh with intent to cause injury to him. Objection was taken before the learned Magistrate on behalf of Teja Singh that section 211 was not attracted to the case as proceedings under section 107, Criminal Procedure Code, did not amount to the institution of any criminal proceedings. This contention was negatived by the learned Magistrate and a revision petition presented to the learned Sessions Judge, Lahore, was also dismissed. The petitioner then approached this Court on the revisional side. The case came up for hearing before Sir Abdul Rashid, J., (now the Hon'ble C. J), but in view of the importance of the question involved, he referred the case to a Division Bench.
The expression. `criminal proceedings' is not defined anywhere in the Criminal Procedure Code or in the Indian Penal Code. Learned counsel for the petitioner has cited a number of rulings in support of his conten tion that proceedings under section 107 of the Code of Criminal Procedure cannot be regarded as 'criminal proceedings'. He argues that the very word 'criminal' connotes that the proceedings should relate to the commission of a "crime" and this ipso facto postulates the presence of an accused person. Both these elements, the learned counsel maintains, are absent in the case of proceedings under section 107, Criminal Procedure Code. None of the rulings relied upon, however, provides any direct authority for the proposition contended for by the learned counsel.
In 78 P L R 1916, a Single Judge of the Punjab Chief Court held that proceedings under section 110, Criminal Procedure Code, did not constitute a "criminal case" within the meaning of section 526 (1), clause (e) (ii) of the Code, as it then stood. It may be noted that this particular clause was amended in 1923 and the word 'criminal' appearing before the word 'case' in this clause, was omitted by the Legislature. It was observed by the learned judge that a person proceeded against under section 110 of the Code was not an "accused person" as he was not accused of an offence. No final decision was, however, given by the learned Judge and he referred the case to a Division ‑ Bench. The question whether proceedings under section 110, Criminal Procedure Code, which may be regarded as on the same level as proceedings under section 107 of the Code, amounted to "criminal proceedings" or not, was not in issue in that case.
Another ruling quoted by the learned counsel, viz., 109 P L R 1904, is distinguishable on the facts. In that case there was only an application to the Deputy Commissioner against an employee of the Court of Wards and the application was not even made to a Criminal Court. The ruling reported as 42 Punjab Record 1905 (Criminal) was referred to in support of the proposition that a person proceeded against under section 107, Criminal Procedure Code, is not an "accused person". This view was approved of by a Full Bench of four judges of the Punjab Chief Court in 153 P L R 1911. In A I R 1928 Lah, 694, it was held per Sir Shadi Lal, C. J. that a petition presented under section 107, Criminal Procedure Code, cannot be regarded as a "complaint" within the meaning of clause (h) of subsection (1) of section 4 of the Code. These rulings do not really touch the point calling for decision in the present case.
The position in the other High Courts is somewhat conflicting. In I L R 41 Allahabad 503 (D. B.) a Division Bench of that Court charac terised proceedings under section 107, Criminal Procedure Code, as "criminal" or at least "quasi criminal" in their nature. The observation was, however, made in connection with an action for damages for malicious prosecution founded upon proceedings instituted under section J07, Criminal Procedure Code. That view was affirmed by the Allahabad High Court against in I L R 43 Allahabad 402. However, it was remarked in this ruling that it was not necessary to decide the nature of the proceedings under section 107, Criminal Procedure Code, though it was added that they were "undoubtedly criminal" in nature.
There are certain observations made by two Benches of the Madras High Court in I L R 27 Mad. 510 and I L R 39 Mad. 539 to the effect that proceedings under section 107, Criminal Procedure Code are proceedings in a criminal matter or cause and that they should be described as "criminal proceedings". The cases were, however, decided on a construction of section 15 of the Letters Patent of the Court.
In I L R 17 Calcutta 574 (1890), a Full Bench of that Court held that a person who sets the criminal law in motion by making a false charge to the police of a cognizable offence, institutes "criminal proceedings" within the meaning of section 211 of the Penal Code ; and if the offence fall within the description in the latter part of the section, he is liable to the punishment therein provided. There are observations at page 579 of the printed report in that case to the effect that proceedings to compel any one to give security by reason of an anticip ated breach of the peace under section 107, are "apparently criminal proceedings", but they do not necessarily involve a charge of any offence. These observations, however, were no more than obiter dicta in that case.
In I L R (1914) 41 Cal. 719, it was laid down that proceedings under section 107, Criminal Procedure Code, constitute a "criminal case" within the meaning of section 526 of the Criminal Procedure Code as it then stood. A wide interpretation appears to have been given to the expression 'criminal case' in I L R 1928 Cal. 709, wherein it was observed that such a case need not have reference to some "offence" committed. An investigation in a case under section 145, Criminal Procedure Code, was held to be a "criminal case" within the meaning of section 526 of the Code, though some doubt was also expressed in this matter by one of the judges composing that Bench. An incidental remark was also made that proceedings under section 107 of the Code would amount to a "criminal case."
It is conceded by the learned counsel for the respondent that all proceedings taken under the provisions of the Criminal Procedure Code need no necessarily be "criminal proceedings" There is authority for this view. For instance in A I R 1925 Oudh 286, it was held that proce edings under section 145, Criminal Procedure Code, are of a quasi civil nature. None of the parties to such proceedings can be described as an accused person. The Bombay High Court in I L R 25 Bombay 179, expressed the opinion that such proceedings did not constitute a "criminal case" within the meaning of section 526 of the Code. A Division Bench of this Court in A I R 1929 Lah. 32. adopted the view that proceedings under section 488, Criminal Procedure Code, are strictly speaking not criminal proceedings and persons against whom action is taken under, that section do .not fall in the category of accused persons.
None of the authorities cited above appear to afford any direct assistance in the decision of the point involved in the present case. As has been pointed out in the referring order, the expression "criminal proceedings" may not be synonymous with the term 'criminal case". It may be that that the expression criminal proceedings should have a wider connotation than the latter term as far as section 211, Indian Penal Code is concerned. Proceedings under section 107 of the Code certainly lie in a Criminal Court. The person concerned may not be an accused person and he may not be charged with an offence. The object of proceedings under that section is undoubtedly, however, to prevent the commission of an offence. The Magistrate, who takes cognizance of these proceedings can also order the arrest of the persons concerned, either pending disposal of the proceedings or on their termination, if the order regarding security to be furnished‑ is not complied with. Such detention, consequent on the failure to furnish security, however, can be put to an end to, by the voluntary act of the person concerned, viz., by compliance with the order requiring security. It is doubtful, therefore, if it can be held that there is power to inflict "punishment" under section 107, Criminal Procedure Code, "Punishment" seems to be a normal element in "criminal proceedings". Arrest and detention can even be ordered by a Civil Court in execution of decree and such an arrest can be terminated by the voluntary act of payment of the decretal amount, by the debtor. The position does not appear to me to be free from difficulty. The question involved in this case is an important one, which is liable to arise frequently in the Courts of this province. In my opinion, it is necessary that it should be settled authoritatively by a larger Bench. Subject to orders of the Honourable the Chief Justice, therefore,. I would recommend that this case be referred to a Full Bench for decision.
Judgment
Cornelius, J.‑This reference to a Full Bench has been made in the following circumstances. The petitioner Teja Singh laid an information against the respondent Kishan Singh and ten others in the Court of a Magistrate at Lahore praying that action be taken against Kishan Singh as provided by section 107, Criminal Procedure Code. The Magistrate after issuing notice to the respondents, made some inquiry, and refusing to demand security from the respondents, dismissed the application. Thereupon, Kishan Singh applied to the Court praying that the Court should make a complaint against Teja Singh of an offence under section 211, Indian Penal Code. This section reads as follows:‑
"Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both ; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, transportation for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".
The argument was raised on behalf of Teja Singh that proceedings under section 107, Criminal Procedure Code, where not criminal proceedings within the meaning of section 211, Indian Penal Code. The learned Magistrate rejected the argument and a revision petition taken before the Sessions judge was summarily dismissed, whereupon Teja Singh preferred a petition for revision in this Court. The petition came up for hearing before a learned Single judge who referred the case to a Division Bench, holding that an important question was involved, namely, whether the words "criminal proceeding" occurring in section 211, Indian Penal Code, have the same or a wider connotation than the words "criminal case". The case accordingly came up before a Division Bench, where authorities were cited on both sides and finding some conflict between the views of the various High Courts, and that there were forceful arguments both for and against the proposi tion that proceedings under section 107 were "criminal proceedings", the learned judges of the Division Bench recommended that the case should be placed before a Full Bench.
2. It may be assumed for the purposes of this case, that nothing can be described as a proceeding unless it is a step in litigation or at least, an act in a Court, which is provided for in the procedure relating to that Court. In the general sense, procedure is the term used to express the action of Courts of Law. A more particular sense is rendered by the definition in Wharton's Law Lexicon viz. "the mode in which the successive steps in litigation are taken". This contemplates action by a ‑party to the litigation, provided such action is a "step" in the litigation, i.e., is in accordance with some requirement of, or as performed under some power conferred by, the procedural provisions governing the litigation. The same conditions would apply to the acts of the Court ; in order to constitute a step in the litigation, such acts should be either enjoyed or enabled by the relevant procedural law. The course of litigation, consisting of acts of the parties and acts of the Court in successive steps constitutes the "proceeding", and a person who performs an act which sets in train such a series of acts might rightly be said to "institute" such a proceeding". Equally, such a person might be said to institute a "case", in the sense of an "action", or in other words, "a judicial proceeding for the enforcement of rights the redress of wrongs or the punishment of offence". There does not appear to be any difference between this meaning of the word "case" and the sense placed above upon the word "proceeding", and this is the only meaning of these two expressions with which this Full Bench is concerned.
3. The controversy in the case centers round the question whether the expression "criminal proceeding" as used in section' 211, Indian Penal Code, denotes a proceeding which relates to a matter which is "criminal" in its nature, or merely one which lies in a criminal Court, subject of course, to the condition mentioned above viz. that it should be in accordance with some requirement of, or be performed under some power conferred by, the provisions of the procedural law. The petitioner's case is that a "criminal proceeding" must relate specifically to a crime ; a proceeding for the prevention of crime which is the object of the security provisions in Chapter VIII, Criminal Procedure Code, is not a "criminal proceeding" as it does not relate to any crime that has been committed. These provisions do not provide for the imposition of punishment directly upon the person against whom the proceeding is taken, but only for a demand of security ; punishment by way of imprisonment may only be imposed in default of furnishing security. Consequently, they cannot be described as penal , and it is not possible to bring them within the category of criminal pro ceedings" on this alternative basis. Learned counsel has cited certain authorities in support of his view. The first of these is an early decision of the Bombay High Court, In re ; Pandurang Govind, (I L R 25 Bom.179 D.B.). There the proceedings were under section 145, Criminal Procedure Code, and the question before the Court was whether such proceedings were liable to transfer under section 526, Criminal Procedure Code.
The latter section, before its amendment in 1923 empowered the High Court to make orders of transfer in respect of particular criminal cases or appeals or classes of criminal cases or appeals, from one criminal Court to another. In holding that the High Court had no power to transfer the proceedings under section 145, Criminal Procedure Code, from one Magistrate to another, the learned judges of the Division Bench relied on the following arguments, namely, firstly that a criminal case like a criminal appeal must deal with some crime already com mitted, secondly that action under section 145, Criminal Procedure Code, is ultimately not punitive but preventive, thirdly that action to be taken in the case was "quasi‑executive" action, and fourthly that proceedings under section 145, Criminal Procedure Code, had been expressly excluded from the reversionary power of the High Court under section 435, Criminal Procedure Code. The last argument was also adopted by a learned Judicial Commissioner of Oudh, sitting singly in the case reported as "Muhammad Ayub v. Sarfraz" (A I R 1925 Oudh 286.) in which a proceeding under section 145, Criminal Procedure Code‑, was described as "obviously of a 'quasi‑civil' nature" and it was held that there was no bar to the administration of an oath to a party in such a proceeding as he could not be regarded as an "accused person". Section 435, Criminal Procedure Code, was amended in 1923 so as to include proceedings under section 145, Criminal Procedure Code. The provisions of section 342, Criminal Procedure Code relate expressly to an "accused", and there is nothing in Chapter XII of the Code which might be construed to place the parties to the dispute to which the Magistrate's jurisdiction has been attached, in the position of a prosecutor or an accused. Consequently, the decision of the learned Judicial Commis sioner would appear to conform to the statute, and speaking with great respect, it seems to me that it gained nothing in strength from the application of the description 'quasi‑civil" to proceedings under section 145 of the Code. In a similar way the decisions in "Narain Dass v. Durga Devi (1911 P L R 568 F B.) and Muhammad Khan v. The King Emperor (42 P R 1905 Cr. D B.) to the effect that a case under section 107, Criminal Procedure Code, in respect of a person does not fall under section 436, Criminal Procedure Code, since such a person is not an "accused person", were clearly in accordance with the statutory provisions. It is noticeable that wherever in Part B of Chapter VIII, Criminal Procedure Code, reference is made to the person from whom security for keeping the peace or for good behaviour is sought to be taken, the expression used is not "accused person' but merely "person" in respect of whom an order has been made or who has been required to show cause etc. Similarly the decision In Hari Singh v. Jagta (A I R 1928 Lah. 694.) that a proceeding under section 107 is not a complaint for the purposes, of sections 202 and 203, Criminal Procedure Code, rests on the definition of '`complaint" in section 4 of that Code which is confined expressly to allegations made regarding the commission of an offence. In Crown v. Ahmad Bakhsh (5 P R 1914 Cr.) however which like the Bombay case arose out of an application for transfer under section 526, Criminal Procedure Code, but related to a proceeding under section 110 of that Code, a Division Bench of the Punjab Chief Court, expressed the view that such a proceeding did not amount to an enquiry into or trial of any offence, and that the person involved in the case is not an accused person, and concluded that in no sense can the case against such person be reasonably described as a criminal case". Since the judgments in this case and the Bombay case were pronounced, section 526 has been amended so as to empower the High Court to transfer any case pending in a Court subordinate to its authority. The opposite view had been maintained by some High Courts prior to this amendment, e.g., in "lazed Ali Khan v. The King Emperor" (I L R 41 Cal. 719.) it was held that a proceeding under section 107, Criminal Procedure Code, was a "criminal case" for the purposes of section 526, as it then stood. Apparently, the latter view was more in consonance with the intention of the Legislature, as shown by the eventual amend ment of section 526.
4. The view expressed in the…
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