Find a Lawyer

Penal Code (XLV of 1860)

-- S. 182 read with Criminal Procedure .Code (V of 1898), Ss. 195 (1), & 561-A-Complaint filed against Z by police, under S. 182, P. P. C. on direction from a Magistrate-Police not making any investiga tion but just relying on statement of a girl who had run away with her paramour and claimed that she had gone out of her parental home of her own accord and that allegations of her abduction made by her father Z were not true-Held, proceedings under S. 182, P. P. C. against father in circumstance, were initially defective-To constitute offence under S. 182, P. P. C., positive knowledge or belief of accused about falsity of information, necessary-Proceedings quashed.

Fateh Khan v. The Empress 1890 P R (Cr. J) 35 ; Sardar Khan v. Emperor A I R 1930 Lab. 54 and Emperor v. Remahandra Yesivant Adurkar 31 Bom. 204 ref.

S. M. Rashid for Petitioner.

Ataur Rehman for the State.

The petitioner has been proceeded against for commission of an offence under section 182, P. P. C.

2. The facts as could be culled out from the petition and the arguments addressed at the bar, are that the petitioner's daughter Mst. Shamim Zahoor was abducted on 24th of November, 1968 by Mohsinul Mulk. The petitioner took a warrant under section 100, Cr. P. C. from a Magistrate at Rawalpindi for the recovery of the girl. She was recovered from the custody of the accus ed and a case under sections 342, 366 and 376, P. P. C. was registered against Muhsinul Mulk and others on the basis of the. statement of the girl. The case of the petitioner is that she was again abducted on 8th of June, 1970, from his house m Rawalpindi. He again obtained a warrant under section 100, ,Cr. P. C. from the Ilaqa Magistrate but the accused in order to defeat the execution of the warrant brought the abductee to Lahore and confined her at an unknown. place. The warrant under section 100, Cr. P. C. issued by the Magistrate at Rawalpindi, could not, therefore, be executed.

3. The petitioner presented an application to the S. S. P., Lahore on 26th of September, 1970, requesting that Muhsinul Mulk, his sons Akram and Anwar and some others were illegally confining Mst. Shamim Zahoor in house No. 1-28, Wabdat Colony, Lahore. The application which was in the form of an affidavit teas marked to S. I. Abdul Hayee Khan Niazi, by a D. S. P. The S. I. registered a case under section 342, P. P. C. against the accused. The abductee is said to have made a statement before Mr. Ahmed Sadiq, Distt. Magistrate, Rawalpindi, repudiating the charge that the accused had illegally confined her, and stated that she had married Muhammad Akram, accused of her own accord. The challan in the first case of abduction had been submitted in Court but it appears that either because of the statement of the abductee before the Ilaqa Magistrate or the aforesaid statement made by her before the District Magistrate, the matter did not proceed further. In the case registered at Lahore under section 342, P. P. C. against Mohsinul Mulk and others a report was made by the police on the basis of .the statement of the abductee made before the District Magistrate, Rawalpindi, that the case be cancelled. The learned Magistrate before whom the case was placed for orders, directed the cancellation of the case and further directed that proceedings under section 182, P. P. C. be taken against the petitioner. A complaint was filed by Nazir Ahmad S. H. O. Police Station, Wahdat Colony under section 182, P. P. C. against the petitioner. This is now pending in the Court of Mr. Nazir Akhtar, Magistrate Ist Class. He summoned the petitioner by order dated 5th of October, 19,73. The petitioner prays for the quashment of the proceedings in this complaint. It appears to me that the complaint has not been properly filed and is affected by an initial defect of want of jurisdiction. Under sub section (1) of section 195, P. P. C. offences under sections 172 to 188, P. P. C. can be tried only when a complaint in writing is made by a public servant who has been given the alleged false information or some other public servant to whom he is subordinate. In this case, the application was addressed to the S. S. P. and the case was registered by S. 1. Abdul Hayee Khan Niazi, S. H. O. There was clearly no finding by the police that the case was false, nor there was any sanction by the S. S. P. for the prosecution of the petitioner. The direction by the Magistrate, in my view, was entirely uncalled for and it was for the S. S. P. or the Investigating Officer to come to' the conclusion as to whether or not the complaint lodged by the petitioner was false. They did not make any investigation and did not arrive at any conclusion to that effect. They have just relied on the statement of the girl made before the, District Magistrate, Rawalpindi. If the proceedings in the abduction case at Rawal pindi or in the case under section 342, P. P. C. registered at Lahore had continue, it would have been open to the petitioner to show that the state ment made by the girl to the District' Magistrate, Rawalpindi, was false and had been made under some influence. There being no determination by the S. S. P. or the Investigating Officer about the truth or otherwise of the complaint under section 342, P. P. C. and further there being no decision by the competent authority to lodge the complaint, the proceedings in my view are initially bad.

5. In a case under section 182, P. P. C. the prosecution have to show that the complaint was false to the knowledge of the petitioner. The police could not have filed a complaint under section 182, P. P. C. before coming to this conclusion. It was held in Fateh Khan v. The Empress 1890 P R (Cr. J) 35 that it is sufficient to prevent conviction if the accused shows that he has reason able grounds to believe that the information given was true. He is not bound to show that it was in fact true. The first case of abduction was registered on the statement of the abductee herself and after her dis appearance for the second time the petitioner had reasons to believe that his daughter had been abducted again by Mohsinul Mulk and others. He actually obtained a warrant under section 100, Cr. P. C. from a Magistrate at Rawalpindi after the second abduction which according to him was frustrated because the,' accused brought the girl to Lahore. In his application to the S. S. P. he had actually alleged that his daughter was being confined in house No. 1-8, Wahdat Colony, Lahore. This statement is contradicted by the statement of the girl which in itself may not be true. There should have been a positive finding after proper investigation that the complaint of the petitioner was false. In Sardar Khan v. Emperor A I R 1930 Lah. 54, it was observed that to constitute an offence punishable under section 182 of the Penal Code, it is necessary that the information given should be which the accused person knows or believes to be false. It is not sufficient that he had reasons to believe it to be false or does riot believe it to be true. There should have been positive knowledge or belief that it is false. In Emperor v. Ramchandra Yeswant Adurkar 31 Bom. 204 it was held that it is necessary for the prosecution to prove, not merely the absence of reasonable or probable cause for giving the information, but a positive knowledge or belief of the falsity of the information given.

6. The mere fact that the daughter of the petitioner repudiated the alle gations made by him in regard to her illegal confinement would not bring the case within the ambit of the provisions of section 182, P. P. C. Experience shows that when a girl leaves her parental house and goes with her paramour, sob is prone to make statements against the case stated by her parents.

I allow this petition and direct that the proceedings against the petitioner under section 182, P. P. C. in the Court of Mr. Muhammad Saeed Akhtar Bhutta, Magistrate Ist Class, Lahore, should be quashed.

K. B. A. Proceedings quashed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.