ABDUL REHMAN MAHOMED YUSUF versus MAHOMED HAJI AHMAD AGBOTWALA AND ANOTHER

Citation: [1960] 1 S.C.R. 749 · Decided: 15-09-1959 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
ABDUL REHMAN MAHOMED YUSUF 
v. 
MAHOMED HAJI AHMAD AGBOTVI ALA 
AND ANOTHER 
(SYED JAFER IMAM and K. N. WANCHOO, JJ.) 
749 
Criminal Procedure--Defamation-Facts stated in the charge 
not mentioned in the complaint-Separate complaint if necessary-
Code of Criminal Procedure, z898 (V of z898), ss. z98 and 238(3). 
The appellant filed a complaint against the respondent and 
another under ss 385, 389, 500/109 of the Indian Penal Code. The 
Trial Court found that there was no conspiracy to defame the 
appellant or to extort money from him and a charge under s. 500 
Indian Penal Code only was framed against the respondent. It 
was found that the facts mentioned in the charge were not stated 
in the complaint. The Trial Court holding that a separate 
complaint should have been filed in respect of the offence with 
which the respondent was charged, acquitted him. 
The High 
Court rejected the appellant's application for revision of the order 
of the Trial Court with the remark "rejected as no offence " 
The appellant appealed by special leave. 
Held, that the offence charged was a separate offence, 
although of the same kind, from the offence in respect of which 
the facts had been stated in the complaint. For this separate 
offence a separate complaint should have been filed in accordance 
with the provisions of s. 198 of the Code of Criminal Procedure. 
The provisions of s. 198 of the Code of Criminal Procedure are 
mandatory. In appeal the Supreme Court could do what the High 
Court could have done. The order of acquittal of the res• ondent 
was a null.ity, and the proper order should be one of discharge. 
CRTMINAL 
APPELLATE 
JURISDICTION: 
Criminal 
Appeal No. 174of1956. 
Appeal by special leave from the judgment and 
order dated the April 15, 1955, of the Bombay High 
Court, in Criminal Revision Application No. 392 of 
1955, arising out of the judgment and order dated 
December 14, 1954, of the Presidency Magistratf', 15th 
Court Mazagaon, Bombay in Case No. 532/S of 1953. 
E. B. Ghasvala and I. N. Shroff, for the appellant. 
C. B. Aggarwala, J. B. Dada.chanji, S. N. Andley 
and Rameshwar Nath, for respondent No. I. 
H.J. Umrigar, R.H. Dhebar and T. M. Sen, for 
respondent No. 2. 
95 
r959 
Septembr1· rs. 
750 
SUPREME COURT REPORTS (196()(1)1 
1959 
1:959. September 15. The Judgment of the Court 
was delivered by 
Abdul Rehman 
• 
11 
Mahomed Yusuf 
IM~M J.-A complamt was filed by the appe ant on 
v. 
the 4th of December, 1953, against the respondent 
Mahomed Haji Agbotwala and one Phirozbai Mazarkhan under ss. 385, 
Ahmad Agbotwala 389 and 500/34 and 109 of the Indian Penal Code in 
I -
1 
the Presidency Magistrate's 15th Court, Mazagoan, 
....... 
. 
dA 
h 
Bombay. 
The accused were summone . 
s t e 
accused Phirozbai Mazarkhan could not be produced 
the trial produced 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 Mazar. 
khan 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 on offence. 
Accordingly, he declined to frame a charge under 
ss. 385 and 389/34 and 109 of the Indian Penal Code. 
,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 consider-
ation of the evidence, that the respondent had on the 
13th of October, 1952 uttered before Mr. Parah, 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, t.here 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 recent case the charge had been wrongly 
framed. He accordingly acquitted the respondent. 
Against the decision of t

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