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Anil Yadav S/O Shri Shishram B/C … vs State Of Rajasthan Through Pp on 6 September, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 5423/2018

Anil Yadav S/o Shri Shishram B/c Yadav
—-Petitioner
Versus
State Of Rajasthan Through Pp
—-Respondent

For Petitioner(s) : Mr. Kapil Gupta
For Respondent(s) : Mr. Prakash Thakuriya, PP for State

HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Order

06/09/2018

Present petition has been filed under Section 482 Cr.P.C.

praying that the order dated 29.1.2018 passed the court of Chief

Metropolitan Magistrate, Jaipur Metropolitan in FIR No.3/2017,

registered at Police Station CID (SOG), Jaipur, whereby the said

court has taken cognizance against the petitioner for offences

under Sections 193, 195, 196, 420, 465, 468, 471, 474, 384, 388,

389, 120B IPC, be set aside.

Learned counsel for the petitioner has relied upon the order

passed by this court in Shivani Verma v. State of Rajasthan

Anr., S.B. Criminal Misc. Petition No.4362/2017, decided on

13.07.2018. The order passed by this court in the case of

Shivani Verma (supra), reads as under:-

“Present petition has been filed under Section 482 Cr.P.C. to
assail the order dated 18.5.2017 passed by the Court of Chief
Metropolitan Magistrate, Jaipur Metropolitan in Criminal Case
No.1438/2017, whereby cognizance for offences under Sections 193,
195, 196, 384, 388, 389, 420, 465, 467, 468, 471, 120B and 34 IPC was
taken against the accused-petitioner.

Briefly stated, the petitioner herein Shivani Verma allegedly
impersonating as Radha Sharma, had filed a complaint for offence
(2 of 4) [CRLMP-5423/2018]

under Section 376 IPC against one Navratan Singh Rathore, respondent
No.2. It is stated that petitioner, after affecting compromise,
withdrew criminal complaint filed by her from the Court of
Metropolitan Magistrate No.8, Jaipur Metropolitan.

Admittedly, no statement of the petitioner was recorded in the
complaint fled by her purportedly as Radha Sharma.

Section 193 IPC specifically prescribe punishment for giving
false evidence. Admittedly, petitioner has not deposed in any criminal
court of law.

Section 196 IPC prescribe punishment for giving evidence which
is believed to be false. Admittedly, petitioner had not given any
evidence in any criminal proceedings.

After perusal of prosecution case, offence, if any, against the
petitioner will fall under Section 211 IPC which specifically state that
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, commits offence under Section 211 IPC.

Chapter-XI of Indian Penal Code deal with offences of giving
false evidence and offences against public justice.

Section 195 Cr.P.C. reads as under:-

“195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence.–(1) No Court shall
take cognizance–

(a) (i) of any offence punishable under sections 172 to 188
(both inclusive) of the Indian Penal Code, (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such
offence, or

(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate;

(b) (i) of any offence punishable under any of the following
sections of the Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199, 200, 205 to 211
(both inclusive) and 228, when such offence is alleged to
have been committed in, or in relation to, any proceeding
in any Court, or

(ii) of any offence described in section 463, or punishable
under section 471, section 475 or section 476, of the said
Code, when such offence is alleged to have been
committed in respect of a document produced or given in
evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to
commit, or the abetment of, any offence specified in sub-

clause (i) or sub-clause (ii),
except on the complaint in writing of that Court or by such
officer of the Court as that Court may authorise in writing in
this behalf, or of some other Court to which that Court is
subordinate.

(3 of 4) [CRLMP-5423/2018]

(2) Where a complaint has been made by a public servant
under clause (a) of sub-section (1) any authority to which he is
administratively subordinate may order the withdrawal of the
complaint and send a copy of such order to the Court; and upon
its receipt by the Court, no further proceedings shall be taken
on the complaint:

Provided that no such withdrawal shall be ordered if the
trial in the Court of first instance has been concluded.

(3) In clause (b) of sub-section (1), the term “Court”
means a Civil, Revenue or Criminal Court, and includes a tribunal
constituted by or under a Central, Provincial or State Act if
declared by that Act to be a Court for the purposes of this
section.

(4) For the purposes of clause (b) of sub-section (1), a
Court shall be deemed to be subordinate to the Court to which
appeals ordinarily lie from the appealable decrees or sentences
of such former Court, or in the case of a Civil Court from whose
decrees no appeal ordinarily lies, to the principal Court having
ordinary original civil jurisdiction within whose local jurisdiction
such Civil Court is situate:

Provided that–

(a) where appeals lie to more than one Court, the Appellate
Court of inferior jurisdiction shall be the Court to which
such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court,
such Court shall be deemed to be subordinate to the Civil
or Revenue Court according to the nature of the case or
proceeding in connection with which the offence is alleged
to have been committed.”

As per Section 195 Cr.P.C., for prosecution of any accused for
offences under Sections 193 to 196, 199, 200, 205 to 211 IPC,
complaint is to be filed only by the concerned court in which either
false evidence is given or before whom any complaint was filed.

In the present case, no complaint has been filed by the
concerned court before whom the petitioner had filed complaint. Thus,
the complaint for offences under Sections 193, 195, 196, 211 IPC could
only be filed by the Court of Metropolitan Magistrate No.8, Jaipur
Metropolitan. Before filing complaint, the said court is bound to hold an
inquiry under Section 340 Cr.P.C. No such procedure has been followed.

Consequently, after hearing learned counsel for the parties the
impugned order of cognizance (Annx.3) dated 18.5.2017 passed by the
Court of Chief Metropolitan Magistrate, Jaipur Metropolitan qua
offences under Sections 193, 195 and 196 IPC is set aside qua the
present petitioner and the matter is remitted back to the Court of
Chief Metropolitan Magistrate, Jaipur Metropolitan to pass a fresh
order of cognizance taking into consideration bar under Section 195
Cr.P.C. and provisions of Section 340 Cr.P.C. The complainant shall be at
liberty to file an application under Section 340 Cr.P.C. before the court
from which allegedly complaint filed by the petitioner as Radha Sharma
was withdrawn.

In view of above, the present petition stands disposed of.”

(4 of 4) [CRLMP-5423/2018]

Shri Prakash Thakuriya, learned Public Prosecutor, has very

fairly submitted that for prosecution of the petitioner for offences

under Sections 193, 195, 196 IPC, no complaint has been filed by

any concerned court in which either false evidence was given or

before whom any complaint was filed.

Since in the present case, no complaint has been filed by the

concerned court and no inquiry under Section 340 Cr.P.C. was held

and necessary procedure was not followed, the impugned order of

cognizance dated 29.1.2018 (Annx.4) is partially set aside qua

offences under Sections 193, 195, 196 IPC and the matter is

remitted back to the Court of Chief Metropolitan Magistrate, Jaipur

Metropolitan, to pass fresh order of cognizance taking into

consideration bar under Section 195 Cr.P.C. and provisions of

Section 340 Cr.P.C. The complainant shall be at liberty to file

application under Section 340 Cr.P.C. before the court below

seeking prosecution of the petitioner for offences under Sections

193, 195 and 196 IPC.

In view of above, present petition stands disposed of.

(KANWALJIT SINGH AHLUWALIA),J

Govind/

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