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1965 DIGILAW 13 (ALL)

UF, I. C. S. v. Pratap Singh Kairon

1965-01-08

GYANENDRA KUMAR, W.BROOME

body1965
JUDGMENT Gyanendra Kumar, J. - This is an application u/s 476 of Code of Criminal Procedure by R.P. Kapur, I. C. S. who was previously Commissioner of Ambala Division against Pratap Singh Kairon, former Chief Minister of Punjab. 2. Briefly stated the facts leading to this case are that one Madan Lal Sethi, Advocate of Chandigarh, had lodged a FIR against the applicant and his mother in law Kaushalya Devi on the allegations that in the beginning of 1958, it was represented to him by the applicant that his mother-in-law Kaushalya Devi owned a piece of land in village Mohammadpur Munirka situate on the outskirts of Delhi and had a right to sell the same. In pursuance of that representation, Kaushalya Devi executed a sale deed in favour of the wife of Madan Lal Sethi. The sale consideration of Rs. 20,000 was paid by Sethi by means of two cheques of Rs. 10,000 each. Later on, he found that he had been cheated by R.P. Kapur and or his mother-in law Kaushalya Devi, inasmuch as none of them was the owner of the land which had already been acquired by the Government under the Land Acquisition Act. In view of the fact that R.P. Kapur was a senior Officer of the Government, the matter was referred to the Chief Minister, who by his order dated 16.7.1959 directed the prosecution of the applicant. In consequence R.P. Kapur was suspended and arrested along with his mother-in-law. The criminal case started against R. P. Kapur and Kaushalya Devi in July, 1959, in the court of the Addl. Distt. Magistrate, Ambala. But on the application, of R. P. Kapur the case was transferred by the Supreme Court to the court of the Addl. Distt. Magistrate (J), Saharanpur, who on 17.6.1961 framed charges against the said accused Under Sections 120B and 4/0 of the Indian Pinal Code. Against that order, the accused persons instituted Cr. Rev. No. 1402 of 1962 in this Court which was allowed by us by our order dated 10.12.1962, on the finding that there was no ground for presuming that the said accused had committed any offence of cheating or conspiracy to cheat, and they were, therefore, entitled to discharge in accordance with the provisions of Clause (2) of Section 251A of Code of Criminal Procedure. R.P. Kapur has now filed this application dated 1.1.1963 u/s 476 of Code of Criminal Procedure with the prayer that an enquiry by a first class Magistrate be ordered for the prosecution of the opposite party Under Sections 193, 195, 196, 199, 200 and 211 of the Indian Pinal Code. 3. The case of the applicant, in brief, is that Madan Lal Sethi, Advocate, had lodged the FIR on 10.12.1958 with the Inspector General of Police, Punjab and had handed over its copy to the Secretary to the Chief Minister, but the version of facts contained in the said report did not make out a criminal case against the applicant and his mother in law, with the result that the said report was made to disappear and was replaced by another so called FIR, which was registered on 23.12.1958. It is further alleged that the opposite party was displeased with the applicant and had ill will against him, and in order to cause him injury, the opposite party was inspired to bring about his false prosecution and arrest, knowing that there was no just or lawful ground for the same. 4. We decided to hold a preliminary enquiry in the matter and issued notice to the opposite party, who has denied the allegations made against him and has filed his own affidavit in reply, saying that Sethi had not handed over to him or in his office any FIR or complaint on 10.12.1958. It is further contended that Madan Lal Sethi had also not lodged any FIR with the I. G. of Police on 10.12.1958, but it was handed over to the Addl. I.G. of Police sometime between 13th and 22nd December, 1958 which was registered on 23.12.1958. The case of the opposite party further is that there was no original FIR apart from the carbon copy dated 10.12.195S which was brought on the record of the trial court ; so there was no question of its replacement by another report. The opposite party also averred that he did not bear any malice or ill-will towards the applicant and had acted bonafide in ordering his prosecution, inasmuch as the Legal Remembrancer, Punjab, had opined that a prima facie criminal case had been made out against the applicant. 5. The opposite party also averred that he did not bear any malice or ill-will towards the applicant and had acted bonafide in ordering his prosecution, inasmuch as the Legal Remembrancer, Punjab, had opined that a prima facie criminal case had been made out against the applicant. 5. In support of their respective cases, the parties have also filed a number of affidavits of the persons, who are alleged to have knowledge about the facts and controversy leading to the prosecution of the applicant and his mother in law. At the request of the applicant, we had requisitioned certain records and files from the Punjab Secretariate. The contents of the said files have not been formally proved, nor was it necessary to do so at this stage of preliminary enquiry. Both the parties have freely referred to those records and have tried to interpret the same in support of their respective contentions. 6. It may be mentioned at the outset that the applicant has failed to show how the provisions of Sections 196, 199 and 200 Indian Pinal Code can be attracted in the present case. We shall therefore leave them out from consideration. 7. Before examining the case on merits, the first thing which has to be determined is the scope and ambit of this preliminary enquiry u/s 476 of Code of Criminal Procedure, the relevant portion whereof may be quoted with advantage: When any... criminal court is, on application made to it in this behalf, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c), which appears to have been committed in or in relation to a proceeding in that court, such court may, after such preliminary inquiry as it thinks necessary record a finding to that effect and make a complaint thereof in writing and shall forward the same to a magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate Provided that, where the court making a complaint is the High Court, the complaint may be signed by such Officer of the Court as the Court may appoint. It may be noted that Sections 193, 195 and 211 of Indian Pinal Code are some of those sections which have been referred to in Section 195(b) of Code of Criminal Procedure. We have, therefore, to determine whether it is expedient in the interests of justice that a further inquiry should be made by a Magistrate for prosecution of the opposite party Under Sections 193, 195 and 211 of Indian Pinal Code. There can be no speck of doubt that if there is prima facie material to think that the opposite party was really responsible for the false prosecution and arrest of the applicant, it would be expedient in the interests of justice to order that further inquiry should be made into the offences alleged against the opposite party, inasmuch as it had resulted in the deprivation of the liberty of a citizen, who also happened to be a high officer of the Government. It has to be borne in mind that the term 'inquiry' as defined in Section 4(1) (k) Code of Criminal Procedure does not include a 'trial' but only refers to a judicial inquiry into the matter by a Magistrate or other court. 8. It has next to be seen if a prima facie case has b"en made out upon the evidence and material on record for enquiring further into the question whether the offences alleged against the opposite party appear to have been committed by him, so as to call for the lodging of a complaint. At the moment, this Court has not to express any opinion on the guilt or innocence of the opposite party. The use of the words "appears to have been committed" in Section 476 of Code of Criminal Procedure is significant and it merely shows that at the present stage there should be prima facie material before this Court to indic?te that the offences complained of are likely to have been committed by the opposite party. 9. Analysing the scope of the alleged offences against the opposite party, viz., of Sections 193, 195 and 211 of Indian Pinal Code, it has to be noted that Section 195 is in a way an aggravated form of the offence contemplated u/s 193 of Indian Pinal Code. 9. Analysing the scope of the alleged offences against the opposite party, viz., of Sections 193, 195 and 211 of Indian Pinal Code, it has to be noted that Section 195 is in a way an aggravated form of the offence contemplated u/s 193 of Indian Pinal Code. The last named section inter alia, provides that whoever intentionally fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine; while Section 195 provides that whoever fabricates false evidence intending thereby to cause or knowing it to be likely that he will thereby cause, any person to be convicted of an offence punishable with imprisonment for life or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished. 10. Thus, if there is prima facie evidence to show that originally Madan Lal Sethi had lodged a FIR on 10.12.1958 with the I.G. of Police, a copy whereof was also given to the Secretary of the opposite party, and the same had been subsequently replaced by an other report on or about 23.12.1958, intending thereby to cause or knowing it to be likely that he will thereby cause the applicant to be convicted of an offence of cheating and/or conspiracy to cheat within the meaning of Sections 420 and 120B of Indian Pinal Code, the opposite party would be guilty of offences Under Sections 193/195 and 211 of the Indian Pinal Code, inasmuch as it was he who had admittedly ordered the prosecution of the applicant on the basis of the alleged second report. It has also been conceded by the learned Advocate General, appearing on behalf of the opposite party, that it would be so. 11. Now let us see what is the prima facie evidence and probable circumstances in support of the allegations (a) that Madan Lal Sethi had originally filed his FIR on 10.12.1958, and (b) that the same had been lodged with the I.G. of Police. Following is the documentary evidence which supports the contention of the applicant: (1) During the investigation of the criminal case against the applicant, a detailed memorandum of facts was drawn up by P.S.I. Lekhraj on 28.1.1959 (flag "J"). Following is the documentary evidence which supports the contention of the applicant: (1) During the investigation of the criminal case against the applicant, a detailed memorandum of facts was drawn up by P.S.I. Lekhraj on 28.1.1959 (flag "J"). At page 1 the opening words are: (a) "On 10.12.1958 Sri M.L. Sethi, Advocate Chandigarh sent an application to the Inspector General of Police, Punjab in which he complained that he had been cheated by Sri R.P. Kapur, I.C.S. and his mother in law Smt. Kaushalya Devi." (b) At page 5 it is stated, '"Mr. Sethi ultimately reported the matter to the Inspector General of Police on 10.12.58 upon which the present case was registered on 23.12.58 at police station Chandigarh." (c) At page 7 it is again reiterated "He lodged the FIR on 10.12.58". (2) After the applicant had been arrested, a letter dated 21.7.1959 was received by the opposite party (Pratap Singh Kairon) from the then Home Minister of the Government of India Pt. G.B. Pant, asking full information about the matter (flag "N"). Thereupon written facts of the case were asked for from the police. Accordingly, a draft of the factual position was prepared by Ujagar Singh S.P., C.I.D. who had also served an order of suspension on the applicant and had effected his arrest. He was thus fully conversant with the facts of the case. The factual narrative of the case was submitted by Ujagar Singh to the Dy. I.G. of police on 28.7.1959, with a note to the effect that before sending an official reply to the Home Minister, Govern, ment of India, the Legal Remembran cer may be requested to wet the note. The aforesaid narrative accordingly passed through the Dy. I.G. of Police, IG of Police, Home Secretary and Legal Remembrancer. There is a note dated 29.7.1959 by Jagjit Singh showing that he had scrutinised the tactual position of the case and had also modified the original dralt to an appreciable extent, which is evident irom the heavy corrections made therein. The amended and fair draft was then submitted to the Chief Minister through the Home Secretary and Chief Secretary. A note dated 1.8.1959 shows that the Chief Minister had finally approved the factual statement of the case which was appended to his reply dated 1.8.1959 sent to the Home Minister of India. The amended and fair draft was then submitted to the Chief Minister through the Home Secretary and Chief Secretary. A note dated 1.8.1959 shows that the Chief Minister had finally approved the factual statement of the case which was appended to his reply dated 1.8.1959 sent to the Home Minister of India. (a) The opening paragraph of the above statement of facts reads "Briefly the facts are that on 10.12.1958 Sri M L. Sethi, Advocate, Chandigarh sent an application to the I.G. of Police." (b) Likewise the second paragraph of his reply dated 1.8.1959 sent by the opposite party to the Home Minister reads "Briefly it may be mentioned that on 10.12.1958 a report was made by Sri M.L. Sethi, an Advocate of Chandigarh that he had been cheated by Sri R.P. Kapur and induced to part with Rs. 20,000/." (3) Pursuant to he grant of special leave to appeal by the Supreme Court on 16.11.1959 against the order of the Punjab High Court dated 10.9.1959, R. P. Kapur applicant had filed Cr. A. No. 217 of 1959 in the Supreme Court of India (R.P. Kapur v. State of Punjab). In this appeal a statement of the case on behalf of the Respondent State of Punjab was filed by its Advocate Sri D. Gupta, which was also countersigned by Sri N.S. Bindra, Senior Advocate, appearing for the State of Punjab. In para 28 of the above statement it was mentioned, "The FIR was recorded on 10th December''. Likewise while giving the list of relevant dates of the events concerning the litigation, it was mentioned at item No. 29, "10.12.1958 FIR submitted by Sri Sethi to the I.G. of Police at Punjab, Chandigarh". (4) In Writ Petition No 59 of 1960 (R. P. Kapur and Ors. v. SardarPratap Singh Kairon and others) filed in the Supreme Court, the statement of the case furnished on behalf of the Respondent showed "10.12.58 FIR submitted by Mr. Sethi to 1. G. of Police, Punjab at Chandigarh". At another place in the same statement it was mentioned "The FIR. was recorded on 10th December". v. SardarPratap Singh Kairon and others) filed in the Supreme Court, the statement of the case furnished on behalf of the Respondent showed "10.12.58 FIR submitted by Mr. Sethi to 1. G. of Police, Punjab at Chandigarh". At another place in the same statement it was mentioned "The FIR. was recorded on 10th December". (5) In the aforesaid writ petition, the Home Secretary, Punjab Government had also filed his affidavit on behalf of the Respondents which reads, "I say that the I. G. of Police on receiving the complaint from Sri M.L. Sethi some time between the 10th and 23rd December, 1958, on his own ordered the registration of the case". (6) In the above case (subsequently reported in R.P. Kapur and Others Vs. Sardar Pratap Singh Kairon and Others, AIR 1961 SC 1117 ), their Lordships of the Supreme Court observed at page 1125, column 1, para 19, "The original complaint was not made available to us on the ground that it could not be traced". The carbon copy of the present FIR was produced in the Supreme Court but the above quoted observation of their Lordships suggests that it was conceded before them that apart from the carbon copy there was something like the original complaint filed by Sethi. The comment of the learned Advocate General regarding the above finding is that the opposite party had not filed his counter affidavit in that writ petition and was, therefore, unable to explain the correct position. It is true that he had not filed his personal affidavit in reply but the writ petition of the applicant was contested by the State of Punjab and, as already noted earlier, the Home Secretary to the Government had, at any rate, filed his affidavit in reply. He was expected to know the facts of the case quite as much as the opposite party and the Secretary was equally in a position to explain the correct situation. The observations of the Supreme Court were not made exparte but were made in a case which had been duly contested on behalf of the State of Punjab. Therefore, the concession made at that stage on behalf of the State of Punjab that there existed an original FIR but it was not traceable at that time is of some importance. The observations of the Supreme Court were not made exparte but were made in a case which had been duly contested on behalf of the State of Punjab. Therefore, the concession made at that stage on behalf of the State of Punjab that there existed an original FIR but it was not traceable at that time is of some importance. The original FIR has not been made available to us even in these proceedings, which again suggests that the allegation of the applicant that the original FIR had been lodged on 10.12.1958 is not altogether without substance. (7) In his examination-in-chief in original trial No. 2 of 1962, Madan LAL Sethi had stated as under regarding the FIR: I filed it in the office of the IG of Police, Chandigarh. A similar document was left in the Office of the Chief Minister, Punjab, to be delivered to the Chief Minister. The application left by me in the Office of the IG of Police at Chandigarh was signed by me. The other one was also signed by me. Later on Madan Lal Sethi took a somersault and stated that he had not filed any FIR on 10.12 1958 nor was it ever submitted to the IG of Police. He, however, did not suggest any definite date when the FIR was lodged by him and said that it was either lodged on 13th or 14th or 16th or 17th or 22nd or 23rd December, 1968. His case was that it was registered on 23.12.1958 though it bore the date of 10.12.1958. 12. The explanation of the learned Advocate General for the above quoted statements to the effect that Madan Lal Sethi had filed the FIR on 10.12. 1958 is that inasmuch as the FIR bore the date of 10.12.1958, everybody concerned thought that it had also been lodged or filed on 10.12.1958. Likewise his contention is that in point of fact the FIR was never lodged with or submitted to the IG of Pol ice, but was later on handed over to the Additional IG of Police, yet inasmuch as it was addressed to the IG of Police, all the persons whose statements have been quoted above thought that the FIR had been handed over or submitted to or lodged with the IG of Police. 13. 13. It is noteworthy that the persons who had put down in writing on various occasions or had deposed that Madan Lal Sethi had 'filed or lodged, submitted or sent' the FIR on 10.12. 1958 with or to the Inspector General of Police were all very responsible and educated men like police officers, Advocates and Secretary to the Government, who were obviously conversant with the English language. They can safely be presumed to know the correct meaning and connotation of the words used by them. When they say that the FIR was lodged on 10.12.1958 they certainly mean that it was actually filed or presented on that date and not that it only bore the dale of 10.12.1958 but was filed on some subsequent date. Similarly, they also knew the distinction between the 'Inspector General of Police' and the 'Additional Inspector General of Police' and so they should have stated that the FIR was submitted to or lodged with the Addl. IG of Police if it was a fact. It is not possible to presume that each one of them had uniformly committed the same kind of mistake by adopting wrong expressions on different occassions while dealing with the questions of the date of the institution of the FIR, and the authority to whom it was submitted. The persons who had prepared the factual notes of the case were mostly those police officers who were actually dealing with the matter, and were supposed to know the correct facts and dates relating thereto. Their notes and narratives were duly scrutinised, revised and corrected by higher officers and it was only then that the statements of facts were finalised on three different occasions. It is also in evidence that the statement of the case submitted by Shri D. Gupta Advocate in the Supreme Court in connection with Cr. A. No. 217 of 1959 was not based upon mere perusal of the papers but was founded upon full and complete written instructions received from responsible officers of the Government of Punjab. It was after receiving full instructions in the matter that Shri D. Gupta, had noted down in the statement of the case that the FIR had been submitted by Sethi to the IG of Police, Punjab, on 10.12.1958. It was after receiving full instructions in the matter that Shri D. Gupta, had noted down in the statement of the case that the FIR had been submitted by Sethi to the IG of Police, Punjab, on 10.12.1958. Similar appears to be the position with regard to the statement of the case submitted in Writ Petition No. 59 of 1960 filed in the Supreme Court as well as the memo of facts prepared before sending a reply to the Home Minister, Government of India. Thus if there was really an FIR which had actually been submitted by Madan Lal Sethi on 10 12.1958 to the IG of Police, which fact is now vehemently contested by the opposite party, the matter assumes quite a serious phase and shows that the existing FIR, which is admittedly said to have been filed on some date between the 13th and 23rd December, 1958, is not the original FIR but is its substitute, thoughts date has been allowed to be shown as 10.12 1958. If that is the position, then offences Under Sections 193/195 of the Indian Pinal Code clearly appear to have been committed in the case. At any rate, this is a matter which further needs to be inquired into by a Magistrate. 14. The following circumstances also suggest that the original FIR has been done away with and has been later on substituted by the present report, which is only a carbon copy: (1) In his deposition recorded in original trial, Madan Lal Sethi admitted that he had completed the FIR on 10.12.1958 and had even revised and corrected the same with the assistance of his clerk. He actually went to see the IG of Police on 10.12.1958, but the latter was reported to be out of station, so he came away and lodged the same with the Addl. IG of Police two or three days later and gave its copy to the Secretary to the Chief Minister another two or three days after. When Madan Lal Sethi had actually gone to see the IG of Police on 10.12. 1958 along with the proposed FIR, he must have come to know on inquiry that the IG of Police was expected to come back to Chandigarh after so many days. He should have, therefore, handed over the first information report to the Addl. When Madan Lal Sethi had actually gone to see the IG of Police on 10.12. 1958 along with the proposed FIR, he must have come to know on inquiry that the IG of Police was expected to come back to Chandigarh after so many days. He should have, therefore, handed over the first information report to the Addl. IG of Police on that very day, which he is said to have done after about three days. Lakewise he should have handed over a copy of the FIR to the Secretary to the Chief Minister on 10.12.1958, particularly when Sethi had even enveloped the same and had written the address on the cover that vary day, and when, according to his own showing even the opposite party remained at Chandigarh till 6 PM on 10.12.1958, while his Secretary remained there during the entire relevant period. There is no valid explanation why he chose to hand it over after about a week viz. on 16th or 17th December, 1958. It has to be remembered that Madan Lal Sethi Advocate was himself living at Chandigarh where the Secretary to the Chief Minister and the Additional Inspector General of Police also lived. His statement in Trial No. 2 of 1962 is extremely vacillating, inconsistent and even contradictory and does not inspire confidence. (2) Under the law a FIR has to be registered with all promptitude. It is surprising that FIR which according to Madan Lal Sethi had been handed over by him to the Addl. IG of Police at least on 12th or 13th December, 1958 was registered after another ten days on 23.12.1958. (3) In the offices of the IG of Police, the Addl. IG, of Police and the Secretary to the Chief Minister, there must be some sort of registers which would contain entries with dates regarding presentation of complaints or petitions to those authorities. No such registers or extracts thereof were produced before us. If produced, they would have indicated the date when the FIR or complaint was actually received by those officers. Even the copy of the complaint which was admittedly given to the Secretary to the Chief Minister is not forthcoming, and is unaccounted for. (4) In the body of the FIR now on record, after paragraph 3 appears paragraph 6 i.e. paras 4 and 5 are missing. Even the copy of the complaint which was admittedly given to the Secretary to the Chief Minister is not forthcoming, and is unaccounted for. (4) In the body of the FIR now on record, after paragraph 3 appears paragraph 6 i.e. paras 4 and 5 are missing. According to the case of Madan Lal Sethi he had revised the FIR and had made the necessary corrections in all the copies thereof and had further signed each one of them. The existence of the obvious mistake in the existing numbering of paragraphs in the complaint also suggests that it may not be the original complaint. 15. It is true that the applicant had not made a grievance about there being two FIRs in the case or the first one having been submitted to the Inspector General of Police and the second one to the Additional Inspector General of Police, till the commencement of Original Trial No. 2 of 1962. However, the applicant was not likely to be aware of those facts and particulars in the beginning, as these matters were elicited at the trial itself. 16. On behalf of the opposite party, the learned Advocate General has tried to explain away the above points, but the explanation of at least some of them does not appear to be convincing. 17. In order to show that the Inspector General of Police was not at Chandigarh on 10.12.1958 so as to be able to recieve the FIR from Sethi on that day. Waryam Singh the then Inspector General of police has filed his own affidavit saying that he was not at Chandigarh on 10 12.1958 but was at Delhi. However, he has verified this fact on the basis of his T.A. bill for the month of December, 1958. But a copy of the T.A. bill has not been filed so as to indicate the time when Waryam Singh had left Chandigarh for Delhi. Chandigarh is situate only at a distance of about 150 miles from Delhi and one could easily reach there by car in about four hours' time. Therefore, in the absence of the T.A. bill and any allegation as to the time when the Inspector General of Police had left Chandigarh, it cannot be said that he could not have been at Chandigarh for major part of the day on 10.12.1958. Therefore, in the absence of the T.A. bill and any allegation as to the time when the Inspector General of Police had left Chandigarh, it cannot be said that he could not have been at Chandigarh for major part of the day on 10.12.1958. It may be that like the Chief Minister, he also left Chandigarh some time in the evening of 10th December. Hence the possibility of handing over the FIR to him by Sethi on that date cannot be ruled out. 18. In this connection, reference may also be made to some of the affidavits filed on behalf of the parties. In support of the applicant's case one A.K. Kaul retired Deputy Inspector General of Police has filed his affidavit to say that he was Assistant Inspector General of Police attached to the office of the Inspector General of Police, Chandigarh in December, 1958, that on 10.12.l958 a complaint by Madan Lal Sethi, Advocate u/s 420 Indian Pinal Code against the applicant was received through the Chief Minister in the office of the I.G. of Police, that he distinctly remembered that it had no paragraph tered complaint from Madan Lal Sethi with the orders of the Chief Minister thereon was recieved and that the opposite party was personally directing the investigation of the case by giving instructions to the investigating officers. 19. The affidavit of A.K. Kaul appears to be wholly unreliable in as much as it even goes beyond the case set up by the applicant. It is nobody's case that the FIR lodged by Sethi on 10.12.1958 had reached the I.G. of Police through the Chief Minister on that very day i.e. on 10.12 1958. Like wise it is not even the applicants case that the altered complaint from Sethi also contained the orders of the Chief Minister there on. It is again highly improbable that after a lapse of five years, A.K. Kaul would have remembered that the first complaint of Sethi did not have any paragraph missing in it or that its perusal clearly made out a civil case only against the applicant. 20. It is again highly improbable that after a lapse of five years, A.K. Kaul would have remembered that the first complaint of Sethi did not have any paragraph missing in it or that its perusal clearly made out a civil case only against the applicant. 20. Apart from the counter affidavit of the opposite party, there is also on record the affidavit of Gur Dayal Singh, IG of Police showing that after 1.1.1956 A.K. Kaul aforesaid had been superseded in the matter of promotion to the selection grade in the Indian Police Service by as many as eleven officers, that on 13.8.1960 a reference was made by the Punjab Government to the Government of India recommending a cut of 10% in the pension of A.K. Kaul, I.P.S. (Retired). The Government of India at first did not agree with the recommendation and asked the State Government to reconsider the matter. However the Chief Minister considered the proposal to impose a cut in Kaul's pension to be fully justified on account of his record being unsatisfactory and therefore directed on 17.1.1961 that the case be referred back to the Government of India for (sic) sideration. Accordingly the (sic) of India reconsidered the (sic) posed a cut of 5% (sic) Kaul. It may (sic) count of the as already detailed above, there is enough material to think that Madan Lal Sethi had originally lodged a complaint with the Inspector General of Police on 10.12.1953 which is no longer available. 21. Coming to the question whether a prima facie case u/s 211 of the Indian Pinal Code has also been made out against the opposite party, we have first to consider the scope of that section, the relevant portion whereof reads: 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. 22. The ingredients of Section 211 Indian Pinal Code and malicious prosecution are parallel. 22. The ingredients of Section 211 Indian Pinal Code and malicious prosecution are parallel. The words "with intent to cause injury to any person, institutes any criminal proceeding, knowing that there is no just or lawful ground" as used in Section 211 of the Indian Pinal Code are more or less equivalent to the expression 'maliciously prosecutes any person, without any reasonable or probable cause' which is the foundation of an action for malicious prosecution. The standard and measure for judging 'malice' and 'want of reasonable or probable cause' have been laid down in various authorities both English and Indian. In Hicks v. Faulkner (1) [(1878)8 QBD 167], Hawkins, J., delivering the judgment of the Court expressed himself as fallows at p. 171: Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumsta (sic) ch, as suming them to be (sic) son ably lead any (sic) cautious mar (sic) [(1938) 1 All ER I) at p. 8. Likewise in Broad v. Ham (3) [(1839) 5 Bing NC 722] at page 725 per Tindal, L.J.: Reasonable cause has been said to be such as would operate on the mind of a discreet man, and probable cause such as would operate on the mind of a reasonable man. In Huntlay v. Simson (4) [ 1857) 2 H and N 600] and Colson v. Radclyffe (5) [(1887) 4 TLR 59], it was held that where the prosecutor knew that the acts on which the prosecution was founded were done openly and in assertion of a legal right, there is in general no reasonable and probable cause for prosecution. In Brown v. Hawkes (6) [ (1891)2 QBD 718], which was also a case of malicious prosecution, Gave, J. observed as under: Now malice, in its widest and vaguest sense, has been said to mean any wrong or indirect motive; and malice can be proved, either by shewing what the motive was and that it was wrong, or by shewing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. In the same case A.L. Smith, J. observed: The question which I have now to determine is. In the same case A.L. Smith, J. observed: The question which I have now to determine is. whether there was evidence upon which reasonable men could find that the Plaintiff had committed an offence Upon the question of reasonable and probable cause, in my judgment, the judge was right in asking the jury whether the Defendant took reasonable care to inform himself of the true facts before giving the Plaintiff into custody, or, as I will amplify the question, whether a prudent and cautious man under the circumstances would have acted in the same way, which, I take it, is the same thing; It is true that the jury found that the Defendant honestly believed in full charge he made; but as before stated, I read the finding to be (sic) at he did so because of the under Defendant. In Bhim Sen v. Sita Ram (7) [ ILR (1902) All. 3631 a Division Beach of this Court quoted with approval the above observations made by the Queen's Bench Division in Hicks case (1) (supra) regarding reasonable and probable cause, and had also relied upon the following observation of Park, J. in another English case viz. Mitchell v. Jenkins (8) [ (1833.) 5 B & Ad. 595] regarding the definition of 'malice': The term 'malice' is not to be considered in the sense of spite or hatred against an individual, but of malus animus, and as denoting that the party is actuated by improper and indirect motives. In Gaya Prasad v. Bhagat Singh (9) [ 30 ILR (1908) All. 525 PC ] Sir Andrew Scoble delivering the judgment of the Board expressed himself: The foundation of the action is malice, and malice may be shown at any time in the course of the inquiry. In this connection, the case of Fitz John v. Mackinder (10) [(1861) 9 CBNS 505] was approved wherein it was laid down: A prosecution, though in the outset not malicious, having been commenced under a bona fide belief in the guilt of the accused, may nevertheless become malicious in any of the stages through which it has to pass, if the prosecutor, having acquired knowledge of the innocence of the accused, perseveres maloanimo in the prosecution, with the intention of procuring per nefas a conviction of the accused. 23. 23. It is in the light of the standard laid down in the above cases regarding 'malice' and 'reasonable or probable cause' that we have to judge whether the opposite party is likely to have committed an offence u/s 211 of the Indian Pinal Code by prosecuting the applicant. 24. In the instant case we have some indication to come to the conclusion- that the opposite party had malice, ill-will, or indirect motive (as understood in law) against the applicant and could have instituted criminal proceedings against him, with intent to cause him injury, as will be clear from the following facts: (1) On behalf of the opposite party a number of extracts from the remarks made in the confidential service book of the applicant have been filed to show that the applicant was not a desirable man. It may be that the opposite party was prejudiced by the record of the applicant and wanted to do away with him. (2) The conduct of the opposite party before and after prosecuting the applicant has also to be taken into consideration. The applicant was prosecuted at the instance of the opposite party in ten successive criminal cases, our of which nine resulted in his discharge and the tenth was also decided in his favour. (3) One of the above cases was instituted on the complaint of M.L. Dhingra. On 2.3.1959, the opposite party (Pratap Singh Kairon) wrote a secret note to the Addl. IG of Police" Punjab saying, "IGP is sick. Will" Addl. IG please take immediate action in taking over papers from Government Departments concerned and the papers with Sri Dhingra ? Please give a prima facie report." The Addl. IG of Police accordingly directed his subordinate that the case may be registered forthwith. (4) In C.A. No. 75 of 1963 (R.P. Kapur v. Pratap Singh Kairon and others) a five Judge Bench of the Supreme Court of India in its judgment dated 2.8.1963 observed, "The Appellant has not been able to produce before us materials to explain why the Punjab Chief Minister should be personally hostile to him. There are several circumstances however which seem to suggest that whatever be the reason the Punjab Chief Minister is not friendly to the Appellant. 25. There are several circumstances however which seem to suggest that whatever be the reason the Punjab Chief Minister is not friendly to the Appellant. 25. Now it has to be seen whether the opposite party had acted bonafide in ordering the instant prosecution of the applicant, as a man of ordinary reason, prudence and caution would have done in the circumstances of this case. The stand taken by the opposite party, in substance, is that he had taken care and caution to obtain the opinion of the Legal Remembrancer, Punjab on the question whether a prima facie criminal case had been made out against the applicant and inasmuch as the Legal Remembrancer had writ, ten to say thawa a prima facie case had been made out, the opposite party acting on his opinion and advice, honestly prosecuted the applicant. The material on the record, however, shows that it was not so, as would be evident from the following authentic facts: As already noted earlier, it was during the investigation of the case that PSI Lekhraj had prepared a memorandum of the facts dated 28.1.1959 relating to the complaint made by Madan Lal Sethi against the applicant and his mother in law (Flag 'J'). Thereupon Shamsher Singh, Addl. IG of Police requested the Legal Remembrancer to give his advice. On 19.2. 1959 the Legal Remembrancer asked for certain further particulars, and on receiving the same, he (Legal Remembrancer) made a short note dated 29.4.1959 saying in the end "In the result prima facie case appears to have been made out." (Flag 'P'). The file then went to the Chief Secretary in due course, who, in his note dated 6.5.1959 stated: I think this case requires more careful assessment before we proceed to permit the officer being arrested and taken to a Court of Law. The contestants involved in this case are fairly highly educated and higly experienced individuals, and in any matter such as cheating, which is the allegation here, could normally be expected to have their wits about them. While these considerations are not, perhaps, directly relevant in regard to a technical assessment as to whether the case lies or not, they are I think relevant to a consideration of whether the procedure of a criminal case is really suitable. While these considerations are not, perhaps, directly relevant in regard to a technical assessment as to whether the case lies or not, they are I think relevant to a consideration of whether the procedure of a criminal case is really suitable. I would, therefore, be grateful for L. R's. advice as to whether the facts and evidence alleged and discovered in this case are such as to make a strong case for the State proceeding against Shri R.P. Kapur. I would like him to consider whether on the facts and evidence available, prima facie criminal culpability is of a degree where a criminal case should be suitably pursued by the State, or whether it would be more appropriate to let the contestants pursue this material in a Civil Court. 26. Accordingly, the Legal Remembrancer reconsidered the matter and this time he gave a detailed opinion and advice dated 7.5.1959 concluding "I would not say that it is a strong case for prosecution but if some epithet has to be given with regard to its merits I should say that it is a borderline case for prosecution. It may or may not succeed." The file then again went back to the Chief Secretary, who wrote another detailed note dated 8.5.1959, the relevant portions whereof are as follows: The arrest of a Commissioner of a Division in the Punjab will undoubtedly create a scandal, not merely in regard to the person of the officer but in regard also to the Government of this State. The whole procedure will be high lighted in the press certainly in Punjab and Delhi, and because it is so unusual, probably throughout India. In this background, the fact remains that the case is, from the point of view of success, as clearly stated by L. R., a border-line one. It may or may not succeed. The Advocate General who saw some of these papers at an earlier stage but who has not been consulted formally, but with whom I had some talk about it, also shares the view that the case is rather weak from the point of view of success and as likely as not will prove a failure. The Advocate General who saw some of these papers at an earlier stage but who has not been consulted formally, but with whom I had some talk about it, also shares the view that the case is rather weak from the point of view of success and as likely as not will prove a failure. He states that the main point that a Court is likely to consider is whether they can believe that Shri M.L. Sethi, a man of experience of the world and of law, could be cheated in a matter of this kind. He thinks, it is highly unlikely. I believe, therefore, that in these circumstances, it will not be credetable for the Punjab Government to create a furore by the arrest and prosecution of one of its officers in circumstances where a case may prove a failure. Shri R.P. Kapur will appear in the event apparently fully vindicated and Government will inevitably be accused of all kinds of malafide intention. I believe that this Government has been particularly unfortunate in regard to undesirable publicity and highlighting of some of its activities and if we can avoid repetition of this process, it would be all to the good. Nor do I feel from the point of view of justice as between the individuals concerned, that there is any grave obligation on the Punjab Government to prosecute this case. It is not as if an innocent or illiterate or 'inexperienced person is alleged to have been cheated, and taken gross advantage of. The contestants are highly experienced men of the world quite knowledgeable as to which side their bread is buttered. It has been more in the nature of a battle of wits than of any kind of gross advantage on an innocent culprit. Here again, I tend to the view that it is not a case where one can work up much moral fervour. In these circumstances, my considered view is that it would be best not to put this case in Court but allow the contestants to fight it out, if they so wish by civil process. Here again, I tend to the view that it is not a case where one can work up much moral fervour. In these circumstances, my considered view is that it would be best not to put this case in Court but allow the contestants to fight it out, if they so wish by civil process. In spite of the above repeated warnings and advice by the Chief Secretary not to prosecute the applicant but leave the matter to the contestants to fight it out in a civil court and in spite of the reconsidered opinion of the Legal Remembrancer that it was not a strong case for prosecution but was only a borderline one, which may or may not succeed and further in spite of being told that the Advocate General was also of the view that the case was rather weak and it was highly unlikely that Madan Lal Sethi, a man of experience of the World and law, could have been cheated in the matter, the opposite party, by his order dated 16.7.1959, chose to prosecute the applicant, unreasonably suggesting to himself that a prima facie case of cheating had been made out against him, which was not even the final view of the Legal Remembrancer, much less of the Advocate General and the Chief Secretary. Therefore the opposite party did not conform to the standard of an "ordinary prudent and cautious man in reasonably coming to a conclusion" that the applicant should be criminally prosecuted. In this country we rely on private initiative in most of such cases for the punishment of crime, particularly when it is only a marginal case and the person aggrieved is an educated and experienced man of the world and of law, who could have himself taken care of the wrong done" to him, if any. Ordinary prudence further required that a criminal case should not have been launched against the applicant by the state, inasmuch as the opposite party was fully alive to the fact that apart from involving considerable expense of public money, the Government was also likely to come in disrepute "and "mud throwing". This by itself suggests that the opposite party had some malice, ill-will or oblique motive in unnecessarily ordering criminal prosecution of the applicant. 27. This by itself suggests that the opposite party had some malice, ill-will or oblique motive in unnecessarily ordering criminal prosecution of the applicant. 27. There is yet another factor which is a clear pointer to the inference that the opposite party was not honestly prosecuting the applicant and that his action could only be accounted for by imputing some wrong or indirect motive to him. As mentioned earlier, Pt. G.B. Pant, the then Home Ministers in the Government of India, by his letter dated 27.7.1959 had asked the opposite party to supply him full information leading to the arrest and prosecution of the applicant (Flag 'N'). In his reply dated 1.8.1959 the opposite party wrote to the Home Minister that "a challan against Shri Kapur and his mother in law was pre sented in the court of a Magistrate as a prima facie case of cheating is considered to have been made out." These words show that the opposite party was obviously making a reference to the original opinion of the Legal Remembrancer dated 29.4.1959 wherein he had said that a prima facie case appeared to have been made out against the applicant. This opinion, the Legal Remembrancer had himself revised later on, and he finally said on 7.5.1959 that it was not a strong case for prosecution and that at best it was merely a border line one. The opposite party also conveniently gave a go bye to the opinion of the Advocate General which had already been conveyed to him by the Chief Secretary to the effect that it was rather a weak case from the point of view of success and that it was highly unlikely that Madan Lal Sethi had been cheated by the applicant. Thus the opposite party was obviously making a deliberate misrepresentation to the Home Minister by withholding the opinions of the Advocate General and the Chief Secretary as well as the revised view of the Legal Remembrancer dated 7.5.1959. Significantly enough, the opposite party, in his said reply to the Home Minister, simply relied upon the earlier opinion of the Legal Remembrancer dated 29.4.1959, which the latter had himself superseded. In these proceedings as well, the opposite party has taken shelter behind the already exploded and shattered opinion of the Legal Remembrancer dated 29.4.1959 which was no longer operative. Significantly enough, the opposite party, in his said reply to the Home Minister, simply relied upon the earlier opinion of the Legal Remembrancer dated 29.4.1959, which the latter had himself superseded. In these proceedings as well, the opposite party has taken shelter behind the already exploded and shattered opinion of the Legal Remembrancer dated 29.4.1959 which was no longer operative. The action of the opposite party could not be excused on the ground that he had acted under counsel's opinion, unless it was shown that his final advice was properly followed (vide Andrews v. Hawley (11) [ (1857) 26 LJ Ex 323]; Re. Clark (12) [(1851)1 De GM & G 43] and Hewlett v. Cruchley (13) [(1813) 5 Taunt 277]. This again shows malice, ill will and oblique motive on the part of the opposite party, in falsely prosecuting the applicant. 28. In this connection, reference may also be made to two affidavits filed in support of the applicant's case-one by Devi Lal, former Chief Parliamentary Secretary, Punjab and President of the State congress Committee and the other by Sahib Rama Member of the Ambala Regional Transport Association. Devi Lal aforesaid deposed that in 1958, by virtue of his office as the Chief Parliamentary Secretary and the President of the Punjab Congress Committee he used to move about for hours with the opposite party. He said that in December 1958, he and the opposite party had returned to Chandigarh from tour at about 9.30 or 10 P. M. in a car, when the opposite party stopped outside the bungalow of Madan Lal Sethi and returned from inside the house after about half an hour. He further deposed that soon after when he came to know that Madan Lal Sethi had lodged a FIR against the applicant, the deponent asked the opposite party if his visit that night to Sethi's place had anything to do with the matter. There upon the opposite party is alleged to have said "BILKUL CHUP RAHO" which suggested that it was he who had got the FIR filed by Sethi. There upon the opposite party is alleged to have said "BILKUL CHUP RAHO" which suggested that it was he who had got the FIR filed by Sethi. Devi Lal went on to depose that at least on two occasions Ujagar Singh SP, CID saw the opposite party in his presence to inform him about the stage of investigation of the case against the applicant and that the opposite party had given detailed instructions as to the line of future investigation and the persons he should contact and persuade to stand as witnesses. About one of the witnesses the opposite party asked Ujagar Singh that he should be brought to him if he proved difficult. Devi Lal further deposed that after some months when the matter had reached the Supreme Court, he had asked the opposite party to withdraw the case as it was said to be false and was doing great damage to the prestige of the Government to which the opposite party replied "CASE CHAHE JHOOTHA HO PAR KAPUR TO KUCHERYIYON ME KHARAB HO RAHA HAI. WITHDRAW KYON KAREN. CHALNE DO. ISE MARNE DO." The above affidavit of Devi Lal, who could very well have been in close touch with the opposite party at the relevant time by virtue of his important position, shows that the opposite party had not only malice against the applicant but was also instrumental in getting the FIR lodged by Madan Lal Sethi, and was guiding the investigation and even creating evidence against the applicant. The affidavit of Sahib Ram shows that the opposite party was displeased with the applicant on account of his granting transport permits in Ambala Region against the wishes of the opposite party, so the latter wanted to teach a lesson to the applicant for his independence. 29. The only criticism of the learned Advocate General against Devi Lal and Sahib Ram is that they were now political opponents of the opposite party and it was on that account that they had chosen to file false affidavits in support of the applicant. This explanation does not appear to be very convincing. Devi Lal had a high and responsible position in the hierarchy of the Congress and it is not expected of such an eminent person to tell barefaced lies just because of differences in his, present political views with the opposite party. This explanation does not appear to be very convincing. Devi Lal had a high and responsible position in the hierarchy of the Congress and it is not expected of such an eminent person to tell barefaced lies just because of differences in his, present political views with the opposite party. The testimony of these persons has not yet been tested by cross-examination, and it cannot be said that they have really perjured themselves. It is, therefore, not possible at this stage to reject their testimony outright merely on the ground that they appear to be political opponents of the opposite party. It is noteworthy that these affidavits had been filed in this Court, when the opposite party was still occupying the position of the Chief Minister of Punjab. Hence these two affidavits have to be taken at their face value at this stage. They go to whole length of making out a case against the opposite party and show that he is likely to have committed offences Under Sections 193/195 and 211 of the Indian Pinal Code. 30. It is therefore expedient in the interest of justice that further inquiry should be made into offences Under Sections 193/195 and 211 Indian Pinal Code, which appear to have been committed by the opposite party. Let a written complaint thereof be made, which shall be signed by the Registrar of this Court and be forward ed for necessary action to the Addl. District Magistrate ( judicial ) Allahabad. 31. It may, however, be clarified that the Magistrate concerned shall not be bound by the observations contained in this order regarding the merits or demerits of the case, and would decide the matter on the material and evidence which may be produced before him.