A Magistrate has no jurisdiction to take cognizance of an offence under S. 500 of the Indian Penal Code on a complaint which does not mention the facts which form the subject matter of the offence.

Judgment

IMAM, J. : A complaint was filed by the appellant on the 4th of December, 1953, against the respondent Agbotwala and one Phirozbai Mazarkhan under ss. 385, 389 and 500/34 and 109 of the Indian Penal Code in the Presidency Magistrate s 15th Court, Mazagoan, Bombay. The accused were summoned. As the accused Phirozbai Mazarkhan could not be produced the trial proceeded against the respondent Agbotwala (hereinafter referred to as the respondent) only. The Presidency Magistrate was not satisfied, on the evidence, that the respondent and Phirozbai Mazarkhan had conspired either to defame the appellant or to extort money from him. he also held that there was no evidence to show that the respondent knew that Phirozbai Mazarkhan was committing an offence. Accordingly, he declined to frame a charge under Ss. 385 and 389/34 and 109 of the Indian Penal Code.

2. The Presidency Magistrate, however, framed a charge under S. 500, I. P. C. against the respondent who pleaded not guilty. He was of the opinion, after the consideration of the evidence, that the respondent had on the 13th of October, 1952, uttered before Mr. Parab, an advocate, the defamatory words with which he was charged. He was further of the opinion that S. 198 of the Code of Criminal Procedure stood in the way of his taking cognizance. Although the complaint had been made by the person aggrieved, there was no mention therein of the facts which formed the subject matter of the offence with which the respondent had been charged. The complainant, namely, the appellant not having mentioned the facts which constituted the offence with which the respondent had been charged, the charge had been wrongly framed. The Presidency Magistrate was of the opinion that a complaint should have been filed in respect of the offence with which the respondent had been charged. As that had not been done in the present case the charge had been wrongly framed. He accordingly acquitted the respondent.

3. Against the decision of the Presidency Magistrate an application in revision was filed by the appellant in the High Court of Bombay which was dismissed with the remark "Rejected as no offence". Thereafter, the appellant obtained special leave from this Court to appeal against the decision of the High Court.

4. When the appellant filed his complaint before the Presidency Magistrate he referred to the nature of the defamatory statement made by Phirozbai Mazarkhan which was contained in the notice sent to him by Mr. N. K. Parab on behalf of his client Phirozbai Mazarkhan. After giving good many details of the correspondence which ensued thereon, he referred to the part played by the respondent in paragraphs 19 to 24 of the complaint. Whatever was alleged by the appellant was the result of knowledge obtained after enquiries. The most important of these paragraphs, so far as the respondent is concerned, is paragraph 22 which is as follows:

"I have also come to know as a result of my enquiries that Accused No. 2 was seen on occasions and at the relevant time going to the office of the said advocate Mr. Parab at Mazagoan with a woman. My enquiries further revealed that Accused No. 2 was in fact instrumental in connection with the aforesaid correspondence and filing a complaint and that though in fact the complaint was filed in the name of Accused No. 1 Accused No. 2 was the real person behind it."

The appellant then finally alleged that Phirozbai Mazarkhan and the respondent had conspired together and in furtherance of their common intention attempted to put him in fear of injury in body and reputation and in property and that they did so with the object of committing extortion. He accordingly asserted that the accused had committed offences under Ss. 385, 389 and 500/34 and 109 of the Indian Penal Code.

5. At the trial the charge which had been framed against the respondent was as follows:

"I, H. G. Mahintura, Presidency Magistrate, hereby charge you Mohomed Haji Ahmed Agbotwala as follows:

"That you on or