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Smt. Saroj Mishra vs State Of U.P. And Another on 9 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgment reserved on 25.7.2019

Judgment delivered on 09.09.2019

Court No. – 65

Case :- APPLICATION U/S 482 No. – 15919 of 2013

Applicant :- Smt. Saroj Mishra

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Amrita Rai

Counsel for Opposite Party :- Govt. Advocate,Firoz Haider

Connected with

Case :- APPLICATION U/S 482 No. – 11756 of 2013

Applicant :- Satyaveer

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Amrita Rai

Counsel for Opposite Party :- Govt. Advocate,Firoz Haider

Hon’ble Dinesh Kumar Singh-I,J.

1. Heard Ms. Amrita Mishra, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. appearing for the State.

2. These applications have been moved for quashing of the order dated 2.1.2013 passed by the Additional Chief Judicial Magistrate, Court No. 2, Budaun in Criminal Case No. 3 of 2013 (State vs. Satyaveer and others) arising out of case crime no. 592 of 2012 under section 419, 420, 468, 471, 177, 181 IPC, P.S. Faizganj Behta District Budaun.

3. The case as mentioned in the FIR is that the opposite party no. 2 Kishori Lal came to know on 10.4.2012 about the case of Smt. Saroj Mishra (accused-applicant)) where-after he tried to find out about the same and came to know that Satyaveer (accused-applicant), Saroj Mishra (accused-applicant) and Mahendra had committed forgery in several papers in collusion with each other and had made the opposite party no. 2 an accused in a false case, because in the complaint and the statement under section 200 Cr.P.C., the occurrence is shown to have taken place on 27.7.2011 by Mahendra while Mahendra son of Saligram was detained in jail from 19.7.2011 to 28.7.2011 in case crime no. 664 of 2011 and hence how could he have seen the occurrence as he was detained in prison which was at a distance of 50 km. Either he gave false statement or some other person would have been sent to jail by forged name of the said accused. The opposite party no. 2 annexed documentary evidence relating to case no. 1226 of 2011 pertaining to Case Crime No.664 of 2011 and mentioned in the said written report that all the accused named-above had committed forgery in various documents by which they had misled the court as well as the police and gave false statement. It is also mentioned in the written application moved under section 156 (3) Cr.P.C. that concerning this occurrence, on 28.4.2012, an application was given to the police to register the case against the accused person but no action was taken.

4. On the said application the present case crime no. 592 of 2012 appears to have been registered under section 419, 420, 468, 471 IPC at P.S. Faizganj Behta, District Buadaun on 7.11.2012 at 6.10 A.M. and after investigation by the Investigating Officer, charge-sheet has been submitted against the Satyaveer, Smt. Saroj Mishra (applicant) and Mahendrapal under section 419, 420, 468, 471, 177 and 181 IPC.

5. Contention of the learned counsel for the applicant is that on 25.8.2011 the applicant had filed a complaint before the CJM, Budaun against the opposite party no. 2 under sections 323, 504, 506, 427 IPC which was registered as a Complaint Case No. 1226 of 2011 which is at page-52 as Annexure-9 stating therein that on 27.7.2011 at about 8.00 A.M. when she was going to attend her duty as Aganbari Karyakarti, near Devi temple the accused persons namely Yad Ram @ Santosh, Raja Ram and Kishori Lal came in her way armed with illegal weapon and demanded Rs.10,000/- as illegal gratification giving threats to face dire consequence in case the same was not given. They also used abusive language against her. In the said case statement of applicant was recorded before Magistrate on 25.8.2011 under section 200 Cr.P.C. and that of witness Satyaveer under section 202 Cr.P.C as PW2 on 5.12.2011. In her statement, the applicant had fully corroborated the allegation made in the complaint. However, it was made clear by the applicant that no other witness was present at the time of incident on the spot. Statement of Mahendrapal was also recorded under section 202 Cr.P.C as PW1 on 3.11.2011, in which he also stated that along with other persons, Mahendrapal too was present there. After considering the entire evidence, learned Magistrate summoned the opposite party no.2 and two others in the said complaint case no. 1226 of 2011 to face trial under section 323, 504, 506, 429 IPC. On 7.11.2012 opposite party no.. 2 lodged an FIR at P.S. Faizganj Behta of the present case against the applicant Saroj Mishra, Satyaveer and Mahendrapal by moving application under section 156 (3) Cr.P.C. alleging that after summoning order in the Complaint Case No.1226 of 2011, she verified the record and found that the statement made by Mahendrpal was not possible to have been made because he was in jail since 19.7.2011 to 28.7.2011 in relation to case crime no. 664 of 2011 while the complainant of complaint case no. 1226 of 2011 had shown Mahendrapal to be present at the time of occurrence of the said case. The police without making proper investigation, filed charge-sheet on 28.11.2012 against the applicant Saroj Mishra and Mahendnrapal in case crime no. 592 of 2012 under section 419, 420, 468, 471, 177 and 181 IPC, on which ACJM, Court no. 2, Budaun has taken cognizance on 2.1.2013 and has issued summons to the applicant and others to appear before it on 28.2.2013 without applying his judicious mind. The entire charge-sheet as well as order dated 2.1.2013 in pursuance thereof, is ex-facie illegal because cognizance taken by the Magistrate is barred under section 195 of Cr.P.C. Even if Mahendrapal has given false statement, the remedy is available to opposite party no. 2 to move application under section 340 Cr.P.C before the court concerned. Even from the perusal of the FIR, no case is made out under the above-mentioned sections and whole proceedings have been initiated only to harass the applicant because opposite party no. 2 had been summoned in complaint case no. 1226 of 2011 and therefore, the present proceedings is nothing but a counter-blast initiated by malafide intention and ulterior motive, which were liable to be quashed. The co-accused Satyaveer had filed an application u/s 482 No.11756 of 2013 which was disposed of by this Court directing that no coercive action shall be taken against him, copy of which is annexed, therefore, it is prayed that the summoning order dated 2.1.2013 passed by ACJM, Court No. 2 Budaun should be quashed. Reliance has been placed on behalf of the applicant in the case of State of U.P. vs. Mata Bhik and others (1994) 4 SCC 95. In this case it is held by Apex Court that the court is barred from taking cognizance of offence under section 195 (1) (a) except on a written complaint by public servant concerned. Private complaint is not maintainable. The successor in the office of the public servant concerned in law is eligible to file a complaint against wrongdoers .

6. On behalf of opposite party no. 2 by filing counter affidavit it is submitted that the summoning order dated 2.1.2013 is absolutely legal. It is wrong to say that Mahendrapal son of Saligram named as witness, was in jail since 19.7.2011 to 28.7.2011 in case Crime No.664 of 2011. It was evident from FIR that the complainant lodged the same wherein he has mentioned that Mahendrapal son of Saligram was detained in jail from 19.7.2011 to 28.7.2011 in case crime no. 664 of 2011, the deponent was deliberately giving false evidence just to obtain favourable order in his favour. It is further mentioned that the applicant Saroj Mishra has filed frivolous and concocted complaint before the CJM, misrepresented and committed fraud. She has alleged that the incident had occurred on 27.7.2011 at about 8.00 A.M. in the morning when she was going to attend official duty as Aganbari Kariyakarti. It is evident on record that Mahendrapal son of Saligram was detained in jail on 27.7.2011 and was released on 28.7.2011 which belies the story of the applicant. Statement recorded under section 200 Cr.P.C of Saroj Devi on 25.8.2011, in that she has clearly mentioned that on hearing hue and cry, several people came which included Latoori son of Sri Dev, Mahendrapal son of Saligram and her husband Satyaveer and rescued her and in the process, she has received several internal injuries. It was evidently clear that the complainant repeatedly mentioned presence of Mahendrapal on the scene of occurrence. The witness Satyaveer has also mentioned that several other persons had reached on the spot. It is evident that in the statement given by Mahendrapal that the applicant has committed forgery and hence an offence under sections 419, 420, 468, 471, 477 and 481 IPC were made out. There is no infirmity in the impugned order.

7. I have perused the record of the case and have heard argument of both the sides. In the present case, it is apparent that the accused applicant has been summoned for offences under sections 419, 420, 468, 471, 177 and 181 IPC pursuant to the charge-sheet having been filed on a complaint made by opposite party no.2 Kishori Lal. The allegations against the accused-applicant and other co-accused are that one complaint, case no. 1226 of 2011 (Saroj MIshra vs. Yad Ram and others) was filed by the accused-applicant against opposite party no. 2 and two others in which it was mentioned by the complaint (accused-applicant in the present case) that on 27.7.2011 at about 8.00 A.M. when she was going to attend duty of Aganbari, the accused opposite party no. 2 along with co-accused had stopped her near the Devi Temple and co-accused Yad Ram had abusingly told her that if she wanted to continue with the job, she would have to give Rs.10,000/- to him. His brother was driver with a M.L.A. and that he would not allow here to do the job and would continue to make police complaint against her and thereafter started dragging her after holding her hand. Other co-accused Kishori, Raja Ram, companions of opposite party no. 2 in the present case, started beating the complainant (applicant-accused) by which she received internal injury. Her mobile was also snatched away and the said occurrence was seen by Latoori, Mahendrapal and her husband Satyaveer and when they came there, the accused had fled from there giving life threat to her. When she went to lodge the complaint, same was not written, hence out of compulsion, she gave an application to SSP, Budaun but even then nothing was done, then she lodged the present complaint. In this case, the statements of complainant Saroj Devi accused-applicant were recorded under section 200 Cr.P.C. on 25.8.2011 and statements of Satyaveer as PW2 and Mahendrapal as PW1 were recorded. On the basis of these statements, summoning order had been passed in the said complaint case of the accused-applicant and other co-accused under section 323, 504, 506 and 420 IPC and regarding this it is being stated from the side of opposite party no. 2 that the trial court has been misled and false statement of PW1 Mahendrapal has been got recorded by the accused-applicant while this witness was in jail on the date when he is stated to have given evidence before the court below in the said case. Therefore, he could not have been present there and this the forgery has been committed by the applicant in getting the opposite party no. 2 and his companions summoned. Regarding this, forgery, present case has been lodged by opposite party no. 2 being case crime no. 592 of 2012 under section 419, 420, 468, 471, 177 and 181 IPC and it is being argued that this case could not have been filed by opposite party no. 2 Kishori Lal as complainant because this was forgery committed before the court as by getting examined a person who was on the said date stated to be in jail, is shown to have stated before the said court, which would be an impostor. In this regard, the argument made by the learned counsel for the applicant is that in such a case the proceedings of criminal case would be barred by section 195 Cr.P.C. because in such a case it was the court before which false evidence was adduced, which only could have lodged a complaint following procedure laid down under section 195 read with 340 Cr.P.C. and no private (person opposite party no. 2) could have been permitted to lodge an FIR, hence the proceedings being barred by section 195 Cr.P.C, the prosecution of the accused-applicant needs to be quashed.

8. It transpires from the above facts that Saroj Mishra W/o Satyaveer (applicant) had filed a Complaint Case no. 1226 of 2011 wherein Saroj Mishra was examined as complainant under Section 200 Cr.P.C., her husband, Satyaveer was examined as P.W.2 under Section 202 Cr.P.C. and Mahendra Pal was examined as P.W.1 under Section 202 Cr.P.C. and, thereafter the trial court had summoned the O.P. No.2 as an accused to face trial under Sections 323, 504, 506 and 527 I.P.C. According to the O.P. No.2, the said summoning was based on false/forged evidence adduced before the trial court because P.W.1, Mahendra Pal was in jail in Crime No. 664 of 2011 under Sections 323, 324, 504, 506 and 3(i)(10) S.C./S.T. Act with effect from 19.07.2011 to 28.07.2011 while date of occurrence of the said complaint was reported to be 27.07.2011, hence it was the version of the O.P. No.2 that some imposter was made to stand before the trial court to make false statement that the O.P. No.2 had caused the occurrence which was witnessed by him, as he could not be present due to his being in jail on the date of occurrence and to prove that, question/answer have been obtained by him which is annexed by O.P. No.2 with Counter-Affidavit as C.A.-I in which it is recorded that the said witness was lying in jail during that period. On the basis of the said evidence, O.P. No.2 has lodged F.I.R. in the present case which is registered as Crime No. 592 of 2012 in which occurrence is shown of 27.07.2011 at 6:10 p.m. with the aid of application under Section 156 (3) Cr.P.C. and after the investigation in the said matter, the charge-sheet has been submitted against the accused applicant along with two others under Sections 419, 420, 168, 471, 177 and 181 I.P.C. It is argued on behalf of accused applicant that cognizance cannot be taken by the trial court on the said charge-sheet because the same is barred by the provisions of Section 195 Cr.P.C., therefore, this Court has to see as to what is provided under the said section and for the sake of convenience the same is reproduced herein below:

“Section 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, 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 section 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, 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].

(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 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.”

9. It is apparent from the above provision that there is specific bar for a Court to take cognizance for any offence punishable under Sections 172 to 188 Cr.P.C. (both inclusive) as per provision quoted above under Section 195 (a) (i) Cr.P.C. In the case at hand, the two sections out of these are mentioned which are Sections 177 and 181 I.P.C.

10. Now we have to see as to whether as per allegations made in the F.I.R., the offences under those sections are made out or not.

11. Necessary ingredients of Section 177 I.P.C. are as follows:

(i) that the accused was legally bound to furnish information;

(ii) that such an information was to be furnished to a public servant;

(iii) that the accused furnish such information as true, knowing that it was false (or having believed that it was false);

(iv) and that such information was required for the purpose of preventing the commission of an offence or in order to the apprehension of an offender.

12. The necessary ingredients to constitute an offence under Section 181 I.P.C. are that it must be shown that the person giving information knew or believed it to be false or that the circumstances in which the information was given were such that the only reasonable inference is that the person giving the information knew or believed it to be false. That information is shown to be false does not caste upon the party, who is charged with an offence under section, the burden of showing that, when he made it, he believed it to be true.

13. If I analyse the facts of the present case, I find that according to prosecution version, P.W.1, Mahendra Pal of the Complaint Case No. 1226 of 2011 was found to be in prison on the date of occurrence of the said case i.e. on 27.07.2011, therefore, he could not be present on the scene of occurrence on the said date as according to the documentary evidence given from the side of O.P. No.2 mentioned above, he was reported to be lying in jail from 19.07.2011 to 28.07.2011 and probably, based on this documentary evidence, the charge-sheet has been submitted in the present case that some other person may have been made to stand before the said court at the time when evidence under Section 202 Cr.P.C. was being recorded allegedly as Mahendra Pal. It would be presumed that on the said date, the person who stated before the said court as P.W.1, Mahendra Pal could not be the person who was lying in jail on the said date, hence, some imposter might have stated before the court deposing that he had seen the occurrence of the said case on 27.07.2011, therefore, this statement would be covered in the category of false statement given before the said court and would be covered under the ingredients of offence under Sections 177 and 181 I.P.C., therefore, apparently it appears that the bar of Section 195 Cr.P.C. would be operational in the present case as. In such a matter O.P. No.2 had a course open before him to approach the trial court which had recorded the said evidence and to bring to its notice that some imposter had given statement as P.W.1 in the said case and hence said court should have conduct an enquiry under Section 340 Cr.P.C. and if the said allegation was found to be correct, the said court could have moved a complaint before appropriate forum but instead of this procedure being followed in the present case, O.P. No.2 has straight-way approached the police and lodged an F.I.R. against the accused applicants whereon after investigation, charge-sheet has been submitted and cognizance has been taken by the trial court which appears to be erroneous in view of the said provision of Section 195 Cr.P.C. It may be made clear that however investigation on such a written report of the O.P. No.2 could have been conducted by the police but once charge-sheet was submitted, cognizance could be taken by the trial court only on a complaint made by Court in this matter. I am also of the opinion that whatever evidence has been collected by the I.O. during investigation would only be piece of evidence which could be taken into consideration if in the present case, the prosecution deemed it proper to approach the court concerned to get an enquiry held under Section 340 Cr.P.C. into this matter and, thereafter request the court to lodge a complaint before appropriate forum. It is absolutely clear law that in such a matter only court had the jurisdiction to lodge a complaint after enquiry having been held under Section 340 Cr.P.C. which process does not appear to have been resorted to in the present case. Further reliance has been placed by the learned counsel for the applicant upon State of U.P. Vs. Mata Bhikh Singh and others (1994) 4 SCC 95 of which Para 5 and 6 are quoted hear-in-below:

“5. The relevant provisions of Section 195(1)(a)(i) of the Code reads thus:

“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) ….

(iii) ….

except on the complaint in writing of ”the public servant concerned’ or of some other public servant to whom he is administratively subordinate.”

6. The object of this section is to protect persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein. The provisions of this section, no doubt, are mandatory and the Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing of ”the public servant concerned’ as required by the section without which the trial under Section 188 of the Indian Penal Code becomes void ab initio. SeeDaulat Ram v. State of Punjab [1962 Supp 2 SCR 812 : AIR 1962 SC 1206 : 1962 Cri LJ 286] . To say in other words a written complaint by a public servant concerned is sine qua non to initiate a criminal proceeding under Section 188 of the IPC against those who, with the knowledge that an order has been promulgated by a public servant directing either ”to abstain from a certain act, or to take certain order, with certain property in his possession or under his management’ disobey that order. Nonetheless, when the court in its discretion is disinclined to prosecute the wrongdoers, no private complainant can be allowed to initiate any criminal proceeding in his individual capacity as it would be clear from the reading of the section itself which is to the effect that no court can take cognizance of any offence punishable under Sections 172 to 188 of the IPC except on the written complaint of ”the public servant concerned’ or of some other public servant to whom he (the public servant who promulgated that order) is administratively subordinate.”

14. It is evident from the above cited case that no private complainant can be allowed to initiate any Criminal proceeding in his individual capacity as it would be clear from the reading of above sections that no court can take cognizance of the offences punishable under Section 172 to 188 I.P.C. except on written complaint by the public servant concerned. In this case, it has been held that the public servant concerned would include his successor also.

15. Reliance is also placed by the learned counsel for the applicant upon Abdul Rehman and another Vs. K.M. Anees-Ul-Haq 2011 (10) SCC 696 para nos. 23 and 25 are quoted herein below.

“23. As noticed above, a charge-sheet has already been filed against the respondent by CAWC before the competent court. The respondent would, therefore, have a right to move the said court for filing a complaint against the appellants for an offence punishable under Section 211 IPC or any other offence committed in or in relation to the said proceedings at the appropriate stage. It goes without saying that if an application is indeed made by the respondent to the court concerned, it is expected to pass appropriate orders on the same having regard to the provisions of Section 340 of the Code. So long as the said proceedings are pending before the competent court it would neither be just nor proper nor even legally permissible to allow parallel proceedings for prosecution of the appellants for the alleged commission of the offence punishable under Section 211 IPC.

25. The substance of the case set up by the respondent is that the allegations made in the complaint lodged with CAWC accusing him of an offence punishable under Section 406 IPC and Sections 3 and 4 of the Dowry Prohibition Act were false which according to the respondent tantamounts to commission of an offence punishable under Section 211 IPC apart from an offence punishable under Section 500 IPC. The factual matrix for both the offences is however one and the same. Allowing the respondents to continue with the prosecution against the appellants for the offence punishable under Section 500 IPC would not, in our opinion, subserve the ends of justice and may result in the appellants getting vexed twice on the same facts. We are doubtless conscious of the fact that any complaint under Section 500 IPC may become time-barred if the complaint already lodged is quashed. That is not an insurmountable difficulty and can be taken care of by moulding the relief suitably.”

16. In the above-mentioned case, the question involved was as to whether a complaint filed by the respondent/complainant against the appellants, alleging commission of offences punishable under Section 211, 500, 109 and 114 I.P.C. read with Section 34 I.P.C. was barred by provisions of Section 195 Cr.P.C., 1973. The appellant in this case had lodged a complaint with regard to crime with Women Cell (C.A.W.C.), accusing the respondent and four others for the offence punishable under Section 406 I.P.C. read with Section 34 I.P.C. and the D.P. Act. Upon filing of the complaint by the appellants with C.A.W.C., the respondent/complainant had sought an order of anticipatory bail from the Sessions Judge and an order granting bail was passed in favour of the respondents. The respondent’s/complainant case under Section 211 I.P.C. was that accusations made by the appellant in the report lodged with C.A.W.C. were totally false and fabricated. The Magistrate entertained the complaint under Section 211 I.P.C. and came to the conclusion that a complaint for commission of an offence punishable under Section 211 I.P.C. is maintainable even at the stage of investigation. The Sessions Judge, dismissed the Criminal Revision there-against as barred by limitation. The High Court by the impugned order dismissed the Application under Section 482 Cr.P.C. there-against holding that since no Judicial Proceedings were pending in any court at the time when the complaint under Section 211 and 500 I.P.C. was filed by the respondent/complainant, the bar contained in Section 195 Cr.P.C. was not attracted. The question for determination before the Hon’ble Supreme Court was as to whether the anticipatory bail proceedings would constitute judicial proceedings, and if so, whether the offence allegedly committed by the appellants could be said to have been committed in relation to any such proceedings. The Hon’ble Supreme Court had allowed the appeal and gave finding that bail proceeding conducted by the court of Sessions Judge in connection with the case which the appellants had lodged with C.A.W.C. were judicial proceedings and offence punishable under Section 211 I.P.C. alleged to have been committed by the appellants related to the said proceedings. Such being the case, the bar contained in Section 195 Cr.P.C. was clearly attracted to the complaint filed by respondent under Section 211 I.P.C. against the appellants.

17. The facts of the above case are not identical to the present case though the accused appears to have been summoned for offences under Sections 419, 420, 468 and 471 I.P.C. also but this Court does not appear to have expressed any opinion with respect to the fact as to whether the allegations made in the present case would constitute offences under the aforementioned sections also or not as the full fledged evidence does not appear to have been filed, moreover in the present case, none had appeared from the side of O.P. No.2 when the case was called out and in his absence, this order is being passed only on the strength of the Counter-Affidavit filed from his side but I have already expressed above that the allegations prima-facie constitute offences under Sections 177 and 181 Cr.P.C. which definitely find mention in the provisions under Section 195 Cr.P.C. cited above.

18. Next reliance has been placed by learned counsel for the applicants upon para 14 of the Judgement of Soni Dinesh Kumar Dahyalal Vs. State of Gujarat CRIMINAL MISC.APPLICATION NO. 17270 of 2012, which is as follows:

“14.Though, in our judgment, section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with all offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian penal Code,, though in truth and substance the offence falls in the category of sections mentioned in section 195,Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially all offence covered by the provisions of section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it.”

19. The above ruling seems to suggest that it has to be borne by the court in mind that the bar of provision under Section 195 Cr.P.C. should not be evaded by resorting to devices or camouflages and it has been specified that the main test as to whether there is evasion of the section or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In the present case, I find that though other offences under Sections 419, 420, 468 and 471 I.P.C. are also mentioned to have been committed by the accused applicant although these offences do not find mention in Section 195 Cr.P.C. which bars the cognizance to be taken unless complaint is filed in the matter by the public servant concerned. I have already expressed my opinion above that the main allegation appears to be covered under Section 177 and 181 I.P.C. while other sections which have been mentioned, I have not expressed my opinion as to whether they also stand constituted in the present case or not due to the lack of evidence at this stage but even if they are found to be constituted, it would not mean that the proceedings in the present case would not be barred by Section 195 Cr.P.C. as the main offence appears to fall under Section 181 Cr.P.C. as the witness Mahendra Pal who was examined as P.W.1 is stated to have deliberately made a false statement as his presence was not possible to be there on the date of occurrence as he was reported to be lying in jail on the said date of occurrence.

20. Lastly reliance is placed upon by the learned counsel for the applicant upon Govardhan Kumar Thakoredas Vs. State of Gujarat in Crl. Misc. Application No. 24632 of 2015 and connected matters decided on 13.04.2017 in which in para nos. 28, 29 and 52, following is held:

“28. Section 195(1)(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.P.C. that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with,the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v.The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai HC-NIC Page 32 of 41 Created On Fri Apr 14 01:03:33 IST 2017 Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh Anr., (1998) 2 SCC 391; 2 K. Vengadachalam v. K.C. Palanisamy Ors., (2005) 7 SCC 352; and Iqbal 29. The test of whether there is evasion or non- compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.Singh Marwah Anr. v. Meenakshi Marwah Anr., AIR 2005 SC 2119).

29. The test of whether there is evasion or non- compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.

52. The Supreme Court, in the case of M. Narayandas vs. State of Karnataka Ors., AIR 2004 SC 555 considered its earlier decision in the case of Raj Singh (supra) referred to HC-NIC Page 37 of 41 Created On Fri Apr 14 01:03:33 IST 2017 above, and observed as under;

“8. We are unable to accept the submissions made on behalf of the Respondents. Firstly it is to be seen that the High Court does not quash the complaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had not been followed. Thus such a ground could not be used to sustain the impugned judgment. Even otherwise there is no substance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh, reported in [1998] 2 SCC 391. In this case it has been that as follows :

“2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467, and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(l)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) Cr. PC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceedings in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.PC. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalkrishna Menon v. Raja Reddy, [1983] 4 SCC 240 : [1983] SCC (Cri) 822 : AIR (1983) SC 1053 on which the High Court HC-NIC Page 38 of 41 Created On Fri Apr 14 01:03:33 IST 2017 relied, has no manners of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 Cr.PC.” Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided that procedure laid down in Section 340 Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected. ”

21. In view of the above citation, I am of the view that even if the other sections 419, 420, 408 and 471 I.P.C. are found to be made out despite their being not mentioned in Section 195 Cr.P.C., it cannot be held that the proceedings in the present case would not stand barred under Section 195 Cr.P.C. as the offences under the said sections appear to be connected and to have been committed in course of the same offence i.e. under Sections 177 and 188 I.P.C., therefore, I am of the view that the proceedings in the present case appear to be barred by provision of Section 195 Cr.P.C. and are liable to be set-aside/quashed.

22. It will be open for the State/prosecution to initiate fresh proceedings by following the procedure prescribed by law as mentioned above and that the State/prosecution need not seek permission of this Court in that regard, therefore, the proceedings in the present case are quashed with liberty to the State/prosecution to initiate fresh proceedings by following procedure prescribed under law. Whatever investigation has been carried out so far, the same will not be rendered invalid. For the purposes of initiating fresh proceedings in accordance with law, the same very material can be used.

23. With the aforementioned direction, these Applications under Section 482 Cr.P.C. are accordingly disposed of.

Order Date :- 09.09.2019

AU/A. Mandhani

 

 

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