Allahabad High Court
Daya Shankar Upadhyay vs State Of U.P. And Another on 4 February, 2020
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 52 Case :- MATTERS UNDER ARTICLE 227 No. - 7635 of 2015 Petitioner :- Daya Shankar Upadhyay Respondent :- State of U.P. and Another Counsel for Petitioner :- Brajesh Kumar Chaturvedi Counsel for Respondent :- G.A.,Pramod Kumar Hon'ble Neeraj Tiwari,J.
Heard Sri Brajesh Kumar Chaturvedi, learned counsel for the petitioner, learned AGA for the State-respondent and Sri Pramod Kumar, learned counsel for the respondent no.2.
Present petition has been filed for quashing the whole proceedings as well as the impugned summoning order dated 28.10.2015 passed by the learned Chief Judicial Magistrate, Court No.17, Deoria, in Case No. 492 of 2015 (Misc Case No.1471 of 2010) (Prem Shankar Vs. Shashikant), Police Station- Khukhundoo, District- Deoria.
Brief facts of the case are that after death of one Smt. Subhwanti wife of Late Hari Shankar Dubey, Smt. Sita Devi D/o Late Hari Shankar Dubey and respondent no.2 both submitted their separate applications before A.D.O. Panchayat, Deoria for recording their names as legal heir and representatives in the Kutumb Register. In pursuance of aforesaid applications, A.D.O. Panchayat had called a meeting of villagers on 27.09.2002 in which 32 villagers including petitioner and Gram Pradhan were given their statements that Smt. Sita is the daughter of Late Subhwanti and Late Hari Shankar Dubey and no one has given statement in favour of respondent no.2. On the basis of aforesaid statements, the A.D.O. Panchayat has passed an order dated 29.01.2003 in favour of Smt. Sita. An objection was filed by the respondent no.2 against the order dated 29.1.2003 passed by the A.D.O. Panchayat, which was set aside by the Superior Authority and litigation is pending between the parties. Thereafter, respondent no.2 has lodged an FIR dated 19.02.2005, which was registered as Case Crime No.10 of 2005, under Section 419, 420 & 471 IPC against the two persons, namely Shashi Kant Pandey (A.D.O. Panchayat) and Prem Chandra Srivastava (Gram Panchayat Adhikari). After investigation, Investigating Officer has submitted final report on 2.7.2006. Against the final report, respondent no. 2 has filed a protest petition on 4.7.2007 without mentioning the name of petitioner. The statement of respondent no.2 was recorded under section 200 Cr.P.C., in which for the first time he disclosed the name of petitioner. After perusing the documentary evidence, Court below rejected the complaint under Section 203 Cr.P.C. vide order dated 25.08.2008. Against the said order, respondent no.2 has filed a revision before the Revisional Court and Revisional Court has passed an order dated 13.8.2009 without giving opportunity of hearing to the petitioner and remanded the matter back to the trial Court. In pursuance of the order dated 13.8.2019 passed by Revisional Court, the trial Court without applying its mind summoned the petitioner alongwith other co-accused under Section 419, 420, 467, 468 and 471 IPC vide order dated 23.11.2010. Against which, petitioner has approached this Court by filing Application U/S 482 No. 13098 of 2011 in which this Court has directed the petitioner to move discharge application under Section 245(2) Cr.P.C. before the Court below. In pursuance of the said order, petitioner has moved an application under Section 245(2) Cr.P.C. before the Court below, which was partly allowed by setting aside the order dated 23.11.2010 as well as bailable warrant order dated 15.03.2011, but learned Chief Judicial Magistrate, Court No.17 Deoria has summoned the petitioner under Section 177 IPC vide order dated 28.10.2015, which is under challenge in this petition.
Learned counsel for the petitioner submitted that summoning order under Section 177 IPC can only be issued in case of filing of written complaint by a public servant and if it has been filed by private person, cognizance is barred under Section 195(1)(a)(i) of Cr.P.C. He next submitted that undisputedly the respondent nos. 2 is a private person, therefore, on any complaint made by him, no summoning order can be issued for an offence under Section 177 IPC.
In support of his contention, he has placed reliance upon the judgment of Apex Court as well as this Court and Madhya Pradesh High Court in the cases of Kailash Mangal Vs. Ramesh Chand reported in 2015 LawSuit (SC) 251, Prashant Chauhan S/O Ms Chauhan Vs. State of Madhya Pradesh reported in 2014 LawSuit(MP) 199 and Smt. Minakshi Sonkar Shastri Vs. State of U.P. and another decided on 10th November, 2014.
Sri Pramod Kumar, learned counsel for the respondent no.2 has fairly not disputed the factual and legal positions raised by the learned counsel for the petitioner.
I have considered the rival submissions made by the learned counsel for the parties, perused the summoning order dated 28.10.2015 as well as provisions of Section 177 of IPC & Section 195(1)(a)(i) of Cr.P.C and judgments relied upon.
Section 177 of IPC as well as Section 195(1)(a)(i) of Cr.P.C. is being quoted hereinbelow:-
Section 177 IPC "Furnishing false information.--Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both; or, if the information which he is legally bound to give respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 195 (1)(a)(i) Cr.P.C.
"Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- No Court shall take cognizance-
(a) (i) of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860) or..."
By perusal of provision of Section 177 IPC as well as Section 195(1)(a)(i) of Cr.P.C., it is very much clear that summoning order can be issued under Section 195(1)(a)(i) for an offence under Section 177 IPC only in case complaint is filed by a public servant and in the present case undisputedly the complaint has been filed by opposite party no.2, who is private person, therefore, summoning order is not sustainable. Further judgment of Apex Court in the case of Kailash Mangal (supra) has taken the same view. Relevant paragraph no.8 of judgment of Kailash Mangal (supra) is being quoted hereinbelow:-
"8. We may usefully refer to the judgment of this court reported in the case of C. Muniappan in which case the scope of Section 195(1)(a)(i) of the Code of Criminal Procedure was discussed at length. Relevant para Nos. 28 to 33 are extracted hereunder:
"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. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC 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.P.C. 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, 1971 3 SCC 329; Patel Laljibhai Somabhai v. The State of Gujarat, 1971 2 SCC 376; 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 7 Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 370).
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.
30. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under :
"....Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section."
31. In Sachida Nand Singh & Anr. State of Bihar 7 Anr., (1998) 2 SCC 493, this Court while dealing with this issue observed as under :
"7..... Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well-recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise."
32. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under :
"4....The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained.
5....The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside."
33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."
Applying the above decision, the conviction of the Appellant under Section 193 and 419 of the Indian Penal Code is not sustainable."
Again in the matter of Minakshi Sonkar Shastri (Supra), this Court reiterated the same ratio of law. Relevant paragraphs 5 to 7 of the said judgment are quoted hereinbelow:-
"5. Section 182 I.P.C. provides that whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant - (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known to him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished.
6. Section 195 (1) (a) (i) Cr.P.C. provides that no Court shall take cognizance of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code or abetment of or attempt to commit such offence or of any criminal conspiracy to commit such offence except on a complaint in writing by the public servant concerned or of some other public servant to whom he is administratively subordinate.
7. The cumulative reading of the aforesaid provisions is that a criminal complaint under Section 182 I.P.C. is maintainable only at the instance of a public servant and not a private person. Admittedly, opposite party no. 2 is a private person. If that be so, criminal complaint filed by him under Section 182 I.P.C. was completely barred and the Court was precluded from taking cognizance in view of the specific embargo under Section 195 (1) (a) (i) of the Code. Once a criminal complaint itself was not maintainable, this Court could not relegate the revisionist to claim a discharge."
Madhya Pradesh High Court has also taken the same view in the case of Prashant Chauhan (Supra) . Paragraphs 11 to 13 of the said judgment are quoted hereinbelow:-
"11. There is no dispute that petitioner has been subjected to prosecution for the alleged commission of offence punishable under Section 188 of IPC. It is also not in dispute that the allegation against the petitioner is that he has disobeyed the order/instructions issued by District Magistrate, Gwalior in relation to availability of books, uniform and stationaries at eight shops and providing the list of books as per syllabus and sellers to the Additional District Magistrate/District Education Officer prior to starting of academic session. Section 195 of the Code contains general provisions with regard to taking cognizance of offence by the Magistrate, however in respect of certain offences, special provisions have been made prescribing the manner in which, and the circumstances, in which, the cognizance could be taken by the Court. Section 195(1) provides that no Court shall take cognizance of certain offences enumerated in clauses (a) and (b), except in the manner provided therein. The provisions contained in subsection (1) are mandatory in nature and are not directory. The statutory mandate prohibits taking of cognizance except in the manner provided therein.
12. So far as commission of offence under Section 188 of IPC is concerned, the provisions contained in clause (a) are applicable which mandate that no Court shall take cognizance of the offence punishable under Section 188 of IPC, except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. Thus, the Court is prohibited from taking cognizance of the offence punishable under Section 188 of IPC except when the complaint in writing is made by the concerned public servant. The statutory scheme with regard to cognizance of commission of offence under Section 188 of IPC is that complaint has to be filed before the Magistrate concerned having territorial jurisdiction either by the concerned public servant, whose order is alleged to have been disobeyed or by any other public servant to whom, the concerned public servant is administratively subordinate.
13. This being so, the aforesaid discussion makes it clear that for the offence under Section 188 of IPC without complaint filed directly to the Magistrate, Court cannot take cognizance, therefore, on police report the trial Court was not obliged to take cognizance of the offence.
Therefore, under such facts and circumstances, once there is no dispute that complaint is filed by a private person, under Section 195(1)(a)(i) of Cr.P.C. as well as Section 177 of IPC and law laid down by the Apex Court as well as different High Courts, summoning order dated 28.10.2015 as well as entire proceedings so far as against the petitioner is concerned, is bad in law and hereby quashed.
Accordingly, the petition is allowed. No order as to costs.
Order Date :- 4.2.2020 Junaid