KINDERSLEY v. DAVID

100-NLR-NLR-V-11-KINDERSLEY-v.-DAVID.pdf


( 371 )
Present : Mr. Justice Grenier.
KINDERSLEY v. DAVID.
P. C., Matara, 26,420.
Penal Code, s. 180—False information to publicservant—“ Injury *'—
Disposal of criminal charge.
Where the accused gave information, which was found to befalse, to the Chairman of the Local Board, against an Inspectoremployed by the said Board,—
Held,that he was notliable to be convictedof an offenceunder
section180 ofthe PenalCode, inasmuch as theChairman could not,
in thelawfulexercise ofhis power, cause anyinjury to theperson
complained against.
Held, also, that where the information given is a charge of acriminal nature, no proceedings should be taken under section 180of thePenalCode untilthe criminal charge isdisposed of.
Empress v. Jamni1 followed.
A
PPEAL from a conviction under section 180 of the PenalCode.
A. Drieberg, for the accused, appellant.
Bawa, for the complainant, respondent.
Cur. adv. vult.
»I. L. R. 6 All. 887.
1908.
November 24.
( 372 )
me.
November Z4.
November 24, 1906. Grenier A.J.—
I will assume the correctness of the Magistrate’s findings on .thefacts, sUbjeot to what I shall say presently. I was in doubt, However,al the argument whether the complainant, who is the ex officioChairman of the Local Board of Matara, his substantive appoint-ment being that of Assistant Government Agent, was such a publicservant as is contemplated by section 180 of the Penal Code. Ithink it was not seriously contested that he was a public servantwithin the meaning of section 19. The definition there given of apublic servant is comprehensive enough to embrace this complainantin his capacity of Chairman of the Local Board, because I find thateven a division Officer under the Road Ordinance of 1861 is made tofall under the description of a public servant. Besides, it seemsimpossible to disconnect the status of the complainant as a memberof the Civil Service, which undoubtedly invests him with the legalcharacter of a public servant from his incidental position as Chairmanof the Local Board.
The question is whether the complainant had it in his lawfulpower, as Chairman of the Local Board, to cause injury to theperson against whom the information, which has not been veryclearly found to be false, and false to .the knowledge of the informant,was given. The person informed against was the Inspector of theLocal Board, and it was alleged against him by the appellant in apetition that he represented to the Chairman that he had misappro-priated a sum of Rs. 2.50. The word “ injury ” has received afairly exhaustive definition in section 43 of the Penal Code. Thesection runs as follows:“ The word ‘ injury ’ denotes any harm
whatever illegally caused to any person in body, mind, reputation,or property.” It was argued for the appellant that the Chairmanof the Local Board has no power or authority to act by himselfindependently of the Board. This is true, and was conceded byrespondent. The Chairman presides over the deliberations of- theBoard, and any action that is subsequently taken is the action of the .body corporate and not of the Chairman or any member singly.Can it be said, therefore, that the complainant was such a publicservant, that he was able to use his lawful power to the injury of theTn-spector of the Local Board ? I am strongly of opinion that anoffence under section 180 is committed in cases where a person givesfalse information to a public servant who has power, to be exercisedby him to the direct and immediate prejudice of another againstwhom the information is given. I think I said so at the argument,and made reference to the first illustration under section 180, whichapplies to the case of false information being given to the Inspector-General of Police against, a police officer, whom it was in his powerto dismiss. I have been strengthened in my opinion by the rulingof the High Court of Bombay, which I was not aware of at the time,in the unreported case of Shripati Waman (1897), to which reference
( 378 )
is made on page 227 of the Law of Crimes by Ratanlai and Dhirajlal. 1908.The’ section of the Indian Penal Code (182) is word for word the November 24.same as ours (180). In the case of Regina v. Perianan and Regina ttrannanv. Naraina1 ijt was held that section 182 did not apply where the A-J-public servant misinformed is only competent to pass and passes oninformation, and the power to be exercised by him cannot tend toand direct or immediate prejudice of the person against whom theinformation is levelled.
It seems to me that it is of the utmost importance to ascertain ina case of this kind whether or not it was in the lawful power of thepublic servant to whom the false information was' given to act insuch a manner, and so directly, and perhaps effectually, as tocause injury to the person complained against. That is the testwhich in my opinion has to be applied in regard to an offence undersection 180. In this case it is clear that the complainant as Chair-man of the Local Board had no immediate and independent authorityto act on the false information given to him so as to cause injuryto the Inspector of the Local Board. He certainly had not the powerto dismiss that officer. The matter had to be laid before the Board,and it was necessary that there should be the conjoint action of theChairman and the Board before the Inspector could be injured in thesense in which the word “ injury ” is used in the section. If it wasm the power of the Chairman, acting by himself, to dismiss theInspector without any reference whatever to the Board, the casewould have been free from doubt-; but here, although it cannot besaid that the Chairman was the servant of the Board as contendedtor in the Court below, he certainly did not occupy the position ofone who had power and authority to cause direct and immediateinjury to the person complained against. In the case of Perera v.
De Silva2 it was decided by Layard C.J.. following the judgment ofthe Madras High Court in the case of Regina v. Perianan (to whichI have already referred) and the judgment of Mr. Justice Lawriereported in Koch’s Reports, p. 281, that where the false informationwas given to a District Traffic Superintendent, who was only asubordinate officer in the Ceylon Government Railway, and whocould not without reference to a higher authority exercise any powerwhich would cause injury to the complainant, no offence undersection 180 of the Penal Code had been committed. I apprehendthat the principle upon which that case was decided, so far as itcould be ascertained from the .terms of section 180, was that the .
District Superintendent had no independent and distinct lawfulpower or authority which he could use to cause injury. He had topass the information on to his superior officer, who, I premuse, hadsuch power and authority. Applying the same principle to the•present case, it may fairly be argued, and 1 think, with reasonand justice, that the Chairman, without being in the position of a11. L. R. 4 Madras 241.* 4 Appeal Court ’Reports 33.
-28-
1908,
November 24.
QbenIsr
A.J.
( 374 )
subordinate officer, bad still to pass on or convey the information tothe Board before be and the Board could act together in the matter.As was pointed out by Layard C.J. in the case of Per era v. De Silva,Mayne in his treatise on the Criminal Law of India expressed somedoubts as to the correctness of the decision in the case of Regina v.Perineum. Mayne said:“ The Madras High Court has held that
false information given to a village Magistrate, who could not him-self act upon it, but could only pass it on to some higher authority,did not come within the words of this section. They thought thatthe words ‘ to use his lawful power ’ referred to some power to beexercised by the officer misinformed, which shall tend to somedirect and immediate prejudice of the person against whom theinformation is levelled. But conceding this to be so, surely,information given to A for the purpose of being passed on to B, andwhich it was his bounden duty so to pass on, must be considered ashaving been given and intended to be given to B.” The learnedauthor appears to have assumed that the information was given toA for the purpose of being passed on to B. Perhaps, the facts of .theparticular case he was dealing with justified his saying so, in whichevent, no doubt, it could fairly be said that the informant simplymade use of A as a conduit pipe for the information that he actuallyintended for B, and any information therefore given to A was inreality and effect given to B.
Assuming that Mayne’s criticism is correct and well founded,there is no evidence from which I can infer that the appellant ingiving false information to the Chairman did so for the purpose ofits being passed on to the Board. Even if there was evidence, itwould not help the prosecution, because the Board neither collectivelynor individually occupied the position of public servants superior tothe Chairman, and having the necessary lawful power, as such publicservants, to use it to the injury of the person informed against. Itis quite a different matter that the Board bad the power by itsconstitution to dismiss any of its employes.
There is, however, another point which was apparently lost sightof in the Court below, and not adverted to at the argument of theappeal. That point was decided in the case of the Empress v..Tamni,1 and it was there held that where the information given is acharge of a criminal nature, no proceedings should be taken under,section 182 until the criminal charge is disposed of. I agree withihat ruling. Now, .the appellant made a distinct charge against theInspector of misappropriating a sum of money which he shouldhave credited or paid over to the Local Board. The charge was acriminal one, and the appellant should have been directed to makehis complaint either directly to the Police Magistrate or to the Police,who would no doubt have taken action in the matter.
11. L. B. S AU. 387.
( 376 )
That does not appear to have been done, but proceedings were in 1908.effect ordered by the Chairman, after an informal inquiry had been November 84.held by him (document B), to be taken by the Inspector against the Gbenebbappellant under section 180 of the Penal Code, on the assumptionthat the information given by him was false. Possibly, had theproper procedure been followed, the appellant would haVe been in aposition to prove that the Inspector had taken a sum of' Bs. 2.60from him, for which he had not accounted to the Board, instead ofbeing in the disadvantageous situation of an accused chargedprematurely with an offence under section 180. If the charge was afalse one, the appellant should have been proceeded against undersection 208.
For the reasons I have given I would hold that the complainantas Chairman of the Local Board is not a public servant within themeaning of section 180 of the Penal Code, and that the accused hascommitted no offence under that section.
I must confess that I am glad to have arrived at this decision onthe law, because I am not satisfied upon the evidence that thecharge made by the appellant against the Inspector was entirelyfalse. I set aside the conviction and acquit the accused.
Appeal Mowed.