# THE STATE OF WEST BENGAL. NUR-UL-HUDA v. THE STATE OF 'WEST BENGAL

- **Citation:** [1953] 1 S.C.R. 836
- **Court:** Supreme Court of India
- **Decided:** 1952-02-04
- **Bench:** Mehr Chand Mahajan, VIVIAN BosE, Jagannadha Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-west-bengal-nur-ul-huda-v-the-state-of-west-bengal-206
- **Pages:** 13

## Headnote

Criminal Procedure Gode, 1898, ss. 190, 195-Indian Penal
Gode, 1860, ss. 182, 297, 500-Report to police all'9ing X had killed
his 11iother-Trespass ivith police on
cremation ground-Report
fo11nd false-Oornplaint by X for trespass and defrin.ation-Maintainability-Jurisdiction to take counizance of ofjence-Whether
barred by s. 195, Criminal Procedure Gode.
-
s.c.R.
SUPREME COURT REPOR'l'S
837
1953
The accused fo<lged information at a police station that X had
]Jeaten and throttled his mother to death and when the funeral
pyre was in flames he entered the cremation ground \Vith the Busir-uJ.Huq
police. The dead body \Vas examined and the complaint was fonnrl
and Others
to be false.
On the complaint of X, the accused was charged with
v.
offences under section 297, Indian Penal Code (trespass to wound
The State of
religious feelings) and section 500, Indian Penal Code (defamation).
West Bengal
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, Crimin.I Procedure Code:
lield, (i) that the facts which constituted the offence under
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 pri vale 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] E'.C.R. 139 referred
to.
Section 195 cannot however be evaded by the device of charging 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.
CRIMINAL APPELLATE Jumsmc·rroN: Criminal Appeals Nos. 26 and 27 of 1952. Appeals under Article
i34 (1) (c) of the Constitution of India from the Order
dated 4th February, 1952, of the Calcutta High Court
(CIIAKRAVARTTI 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 Kwmar Datta for the complainant.
1953.
April 10. The Judgment of the Court was
delivered by IliAHAJA::-1 J.
-------- --. -------- -- ---- --
-
--.. ,. ,_,
'
-=--~-~
-
838
:SUPREME COURT REPORTS
(1053]
~illIAJAN J.-These two appeals aris{l.in the following ' circumstances:
One Mokshadamoyec
Dassi,
Ba~ir-ul-lluiz
andO!hm
mother ofDhirendra Nath Bera, died some time in the
v.
-eveniiig of the 3rd September, 1049. At the moment
TheStateoL __ ofher death Dhircndra Nath \rns not present at the
West Ben~al - house. On his return at about 8-30 p.m. he along .
with some other persons took the dead body to the
Mahaja-nJ.
cremation grourid. 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. \Vhen the funeral pyre was .in
flames, Nurul Huda 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

## Text

836
SUPREME COURT HEi'ORTS
[i953]
1953
judgment, so it is not necessary to do m9re than out-
'l'I s k
. line them here.
The quota-holder here is Beharilal
0ou:: .:ii·~:'l:d. Bairathi. In this case also, Dharsi Moolji paid Dwarkav.
das Khetan for the goods and the Mills sent the bales
'I!lw•Stato of to Dharsi Moolji for delivery in the same truck as the
Bombay.
13 bales.
Dharsi Moolji refused to accept these bales
Bose J.
1953
April 10
also, so they were deposited in the Dady Seth godown
along with the other thirteen. Dwarkadas Khetan &
Company has been entered as the person to whom delivery was made. For the reasons given above, we hold
that this was a true and accurate return.
The appeal is allowed. The conviction and sentence
in each of the four cases is set aside. The fines, if paid,
will be refunded.
Appeal allowed.
Agent for appellants Nos. 1, 2 & 4:
Rajirider
Narain.
Agent for appellant No. 3: Ganpat Rai.
Agent for the respondent: G. H. Rajadhyaksha.
BASIR-UL-HUQ AND O'fHERS
v.
THE STATE OF WEST BENGAL.
NUR-UL-HUDA
v.
THE STATE OF 'WEST BENGAL.
[MEHR CHAND MAHAJAN, VIVIAN BosE and
JAGANNADHA DAS JJ.]
Criminal Procedure Gode, 1898, ss. 190, 195-Indian Penal
Gode, 1860, ss. 182, 297, 500-Report to police all'9ing X had killed
his 11iother-Trespass ivith police on
cremation ground-Report
fo11nd false-Oornplaint by X for trespass and defrin.ation-Maintainability-Jurisdiction to take counizance of ofjence-Whether
barred by s. 195, Criminal Procedure Gode.
-
s.c.R.
SUPREME COURT REPOR'l'S
837
1953
The accused fo<lged information at a police station that X had
]Jeaten and throttled his mother to death and when the funeral
pyre was in flames he entered the cremation ground \Vith the Busir-uJ.Huq
police. The dead body \Vas examined and the complaint was fonnrl
and Others
to be false.
On the complaint of X, the accused was charged with
v.
offences under section 297, Indian Penal Code (trespass to wound
The State of
religious feelings) and section 500, Indian Penal Code (defamation).
West Bengal
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, Crimin.I Procedure Code:
lield, (i) that the facts which constituted the offence under
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 pri vale 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] E'.C.R. 139 referred
to.
Section 195 cannot however be evaded by the device of charging 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.
CRIMINAL APPELLATE Jumsmc·rroN: Criminal Appeals Nos. 26 and 27 of 1952. Appeals under Article
i34 (1) (c) of the Constitution of India from the Order
dated 4th February, 1952, of the Calcutta High Court
(CIIAKRAVARTTI 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 Kwmar Datta for the complainant.
1953.
April 10. The Judgment of the Court was
delivered by IliAHAJA::-1 J.
-------- --. -------- -- ---- --
-
--.. ,. ,_,
'
-=--~-~
-
838
:SUPREME COURT REPORTS
(1053]
~illIAJAN J.-These two appeals aris{l.in the following ' circumstances:
One Mokshadamoyec
Dassi,
Ba~ir-ul-lluiz
andO!hm
mother ofDhirendra Nath Bera, died some time in the
v.
-eveniiig of the 3rd September, 1049. At the moment
TheStateoL __ ofher death Dhircndra Nath \rns not present at the
West Ben~al - house. On his return at about 8-30 p.m. he along .
with some other persons took the dead body to the
Mahaja-nJ.
cremation grourid. 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. \Vhen the funeral pyre was .in
flames, Nurul Huda 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 subinspector 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 post-mortem examination which
was held on 5th September, 1049, 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, 1049, Dhirendra Nath filed
a petition of complaint in the Court of the Sub-Divisional Officer of Uluberia in the district of Howrah
against the appellants in both the cases and one Sanwaral Huq. It was alleged in the complaint that the -
information given by Numl 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
S.C.R.
Sl'PREME COl'RT REPORTS
839
the cremation ground and mused the <len,d body to be
biken nut hy making false impubtions.
The appellants were tried befOTe Shri R. Ray
Choudhury, :Vfagistrate 1st class, 1Tluberia, on charges
under sections 297 and 500, Indian Penal Code.
The
charges framed against them were in these terms :---
"( 1)
That you on or about the 17th day of Bhn,dra,
1:356 B.S. at Pamhila, P. S. Shyampur, with the intention of wounding the religious feelings of P. W. 1,
Dhirendra Xt1th Bera, the comp]n,inant, committed
trespass upou 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 on or abqut the 1 ith day of Bhaclra,
1356 B. S. at Panshila, P. S. Shyampur, defamed
P. vV. 1, Dhirendrn 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 e011tended on behalf of the defence that
1\urul Huda had lodged information with the police
under a bona fide beliefcrcated 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,
-
1953
Bu~·ir-ul·Huq
ond- Others
v,
Th1-; State of
lVest Bengal.
AlahajffnJ.
840
'suPREME COURT REPORTS
[1953]
1953
The magistrate held the charges proved against all
the appellants and convicted each of them under secBasir-ul-Huq
and Others
tions 297 and 500, Indian Penal Code. Each of the
v.
appellants was awarded three months' rigorous imThe State of prisonment on the charge under section 297 and each
West Bengal of them was sentenced to a fine of Rs. 100 on the
Mahajan .r.
charge under section 500.
The appellants went up in appeal to the Sessions
Judge of Howrah who by his order dated 31st July,
1950, 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 211, 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 wa.s 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 de).iarred because
of this from taking cognizance of other offences
disclosed by the facts alleged, which are not in ~ny way
affected by the provisions of section 195, or 196, 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
•
S.C .. R.
SUPREME COURT REPORTS
841
section 297, Ipdian Penal Code, the learned Judges
said
that there was 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 asidr 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 Full 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
-
1953
Basi"'·Ul-Huq
and Othe1's
v.
The State of
TV est Bengal,
MahajanJ~
-
195.J
Ra8i1·-ul.Huq
and OtllerR
v.
The State of
JV est Benaal.
Ma.hajanJ,
842
SUPREME COURT REPORTS
[1953]
As the judgment of the Full Bench di4 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
preliminrory 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
qnestion 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 pnblic servant concerned, or some other public servant to whom he is
subordinate. The statute thus requires that without a
complaint in writing oft he pnblic servant concerned
no prosecution for an offence 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 eommitted, the magistrate is
debarred from taking cognizance in respe';;t cf those
offences as well.
The allegations made in a complaint
may have a double aspect, that is, on the one hand
these may corrntitute an offence against the authority
of the public servant or public justice, and on the
other hand, they may also constitnte 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
S.C.lt.
SCPREME COURT REPORTS
843
offence of whi.ch no cognizance can be taken under the
provisions of section HJ.5 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 provisimrn of this section
by describing the offence as being punishable under
some other section of the Penal Code.
In our judgment, tlw 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 eommitted subsequent to the
making of the false report and all the ingredients of
the offence that have been held to have been established on tlrn 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 >1 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 that immunity is a qualified one and is not
absolute as it is in English law.
Under section 198,
-
1953
BaR£r-ul-Hur;
and Othe1·s
v.
'l'!te State of
H' t?.st Bengal.
}dahajan J.
-
1953
Busir-ul-Huq
and Otherfl
v.
The State of
lV est Bengal.
Mahajan J.
844
SUPREME cou:R'r HEPORTS
[1953]
Criminal Procedure Code, a complaint in, respect of an
offence under section 499, Indian Penal Code, can onlv
be initiated at the instance of the person defamed, i!1
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 offenoo
complained of.
The decided cases fully support this view and our
attention has not been drawn to any case which ha.s
taken a contrary view as regards offences under section
500, Indian Penal Code.
In 8atis 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 211, 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. Tha.t they are distinct in character is patent from
the fact that tho 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,
(I) (1920) 24 C.W.;,./, 982,
I
I
I
•..
8.C.H.
SUPREME COCRT REPORTS
845
Criminal Proce,dure Code, while in the other, l'ognizance
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
pro1-ided 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 proce~d 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 sections 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.
R,ecently 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 he gave evidence and
the question was answered in the affirmative after an
exhaustive review of the decided cases of the difl:erent
High Courts in India. It was said that if the offence of
-
1953
Rus·ir-ul-Huq
nnd Othe1·s
v.
'l'he State of
Tr est Bengal.
il1ahajan J,
-
1953
.ha.jit·-ul-Huq
a.nd Otlu;rs
v.
'1.'he State of
TV est Bengal.
M aha)<1 n .] •
84(i
SUPREME COGRi1 REPORtS
I i953J
g1vmg false evidence in a judicial proceeding and
defamation do not belong to the same genus but aro
distinct and separate in their characteristics and ingredients, it was difficult to perceive any serious
inhibition bv the Criminal Procedure Code for initiation
and trial of one of these offences independently of
mitcrim resort to fulfilling the conditions necessary tn
rnnunence a prosecution for the other. These observations have apt application to tho 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 relntes to the same group
of offences as that of defamation.
Though, in our judgment, section l!J5 docs 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 i'
whether the facts disclose prim.arily and essentially an
offence for whieh 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 n person with an offence to which that section does not :1pply and then convieting him of an
oftence to which it docs, upon the ground that such
latter offence is a minor offence of the same character,
or by describing the offence as being 0110 punishable
under some other section of the Indian Penal Code,
though in tl'uth and substance the offence falis 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 an offence
covered by the provisions of seetion 195 prosecution foi:,
such an offence cannot lie taken cognizance of by misdescribing it or by putting a wrong label on it.
Before concluding, reference may also be made to the
decision of the Federal Court in Hori Ram Singh v.
The Grown('). The appellant in that case was charged
(1) (1939] F.C.R. 159.
8.C.R.
SUPREME COURT REPORTS
847
with offences. under sections 409 and 4 77-A, Indian
Penal Code. The offence un<ler section 477-A could not
be taken cognizance of withff1t the previous consent
of the Governor under section 2iO(l) 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 misapptopriated or converted to his own
certain medicines entrusted to him in his official capaC'ity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further
charged that being a public servant, he wilfully and
with intent to defraud omitted to record certain entries
in a stock book of medicines belonging to the hospital
where he was employe<l 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 on 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
section409 and the other an offence under section 477-A
which required the sanction of the Governor, the circumstance 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 artide 134 ( 1 ) ( c) of the
Constitution was limited to the question of law referred to the }tu]] 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 fina,I court of fact, as also the evidence
in the case the elements of both the offl•nces had been
fullv established. The learned counsel for the appellants attempted to argue that on the facts found no
-
.1953
Bn&ir-ul-Huq
(//Id Othe1·s
v.
The State of
TVest Bengal.
Jfahajan J.
19.53
Bn.sir-ul-Huq
and Others
v.
The State of
lV eNt Ben.gal.
. 11'1ohajan J.
19.53
April 14.
848
SUPREME COURT REPORTS
[1953]
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 held 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: 8. C. Bannerjee.
LAKSHMANA NADAR AND OTHERS
v.
R. RAMIER.
[MEHR CHAND MAHAJAN and S. R. DAS JJ.]
Hindu law-Will--Beqiwst to wife for her lifetime and to
daitghter absolutely after wife's lifetime-Estate taken by wifeTVhether ordinary life estate or Hindn widow's estate-Danghter's
estate-Whether vested-Death of daitghter be/ore widow, effect of
-Constrnction of Hindn will-Gnidina principles.
A Hindu Brahmin governed by the l'IIitakshara law made a
\vill in \vhich he gave the following directions: "After my life.
time, you, the aforesaid Rauganayaki Ammal, my wife, shall till
your lifetime enjoy the aforesaid entire properties ... After your
lifetime, Ramalakshmi Ammal, our daughter and her heirs shall
enjoy them with absolute rights and powers of alie.nation such as
gift, exchange and sale from son to grandson and so on for generations. As regards the payment of maintenance to be made to 0,
wife of iny late son, H, my wife Ranganayaki Ammal shall pay
the same as she pleases and obtain a release deed."
After the
death of the testatol' his \vife entered into possession of his properties bnt Lefore the r1eath of his wifo, his daughter and all her
children died:
Held, (i) that on a proper constrndion of the will in the light
of surrounding circumstances, the testator had conferred on bis
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