Himachal Pradesh High Court
Amit Agarwal & Another vs State Of Himachal Pradesh & Others on 13 January, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No.230 of 2022 Reserved on: 21.12.2022.
Decided on: 13.01.2023.
Amit Agarwal & another ....Petitioners.
Versus
State of Himachal Pradesh & others .... Respondents.
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes For the petitioner s r : M/s Ajay Kochhar, Vivek Sharma and Avni Kochhar, Advocates.
For the Respondents : M/s Dinesh Thakur, Sanjeev Sood, Additional Advocates General, with Mr. Amit Kumar Dhumal, Deputy Advocate General, for respondent No.1.
Mr. Varun Chauhan, Advocate, for respondents No.2 to 5.
Mr. Anirudh Sharma, Advocate, for respondent No.4.
Respondent No.3 is stated to be lodged in Central Jail, Hissar.
Ajay Mohan Goel, Judge By way of this petition, preferred under Section 482 of the Criminal Procedure Code (hereinafter to be referred as 'Cr.P.C.'), the petitioners have prayed for the following reliefs: "It is, therefore, most respectfully prayed that this petition may kindly be allowed and challan filed by the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 13/01/2023 20:33:28 :::CIS 2prosecution in case FIR No.24/2017 dated 260117 registered at Police Station Sadar Solan, District Solan .
recommending prosecution of the petitioners under Sections 201, 120B, 182 of the Indian Penal Code and its consequential proceedings pending in the Court of learned CJM Solan, vide case No.115/2019 may kindly be quashed in the interest of justice and fair play."
2. The case of the petitioners is that they are father and son and are engaged in the business of finance. Petitioner No.1 is Director in Shree Anand Finance and Investment Private Ltd. Solan and petitioner No.2 is Secretary of Himachal Cooperative Non Agriculture Thrift and Credit Society Limited, Solan. Both the companies are stated to be finance companies and are engaging in the business of advancing loans etc. to general public. FIR No.24 of 2017, dated 26.01.2017 was registered at the instance of petitioner No.1, under Sections 307, 365, 384 of the Indian Penal Code and Sections 25, 27 of the Arms Act, inter alia, on the fact that on 25.01.2017, during evening hours when the petitioners were returning back to their home in their car from their work place, there persons with muffled faces caught hold of petitioner No.1 and pointed a pistol at his chest. On this, petitioner No.2 asked them to leave his father, who were insisting upon petitioner No.1 to hand them over the loan documents of one Raj Kumar Mittal. To cut the issue short, in terms of the contents of the FIR, two of the three ::: Downloaded on - 13/01/2023 20:33:28 :::CIS 3 persons took petitioner No.1 to his office and third one stayed with petitioner No.2. Petitioner No.1 was assaulted by these two persons .
in his office and they also took away the computer, pen drives and debit voucher etc. Thereafter, these three persons took petitioners No.1 and 2 in their car towards Kumarhatti where they were made to sign about sixtyseventy blank papers. One of the three persons also fired at petitioner No.1, but petitioner No.2 saved his father.
These persons, thereafter, left the petitioners in their car and fled away when the petitioners begged for their lives and promised them to pay handsome ransom. The investigation which was carried out in the FIR revealed that the petitioner had concocted a story and staged fake kidnapping etc. and nothing as alleged by them in fact had happened. In terms of the investigation, the incident was cooked up incident by the petitioners themselves and accordingly, in the final report which was prepared by the Investigating Agency, it was mentioned that the petitioners and proforma respondents had committed offences punishable under Sections 182, 201 and 120B of the Indian Penal Code and Sections 25, 27, 54 and 59 of the Arms Act.
3. Learned counsel for the petitioner has argued that in the present case on the basis of recommendations of the Investigating Agency in the final report, registration of the case against the petitioners under Sections 182, 201 and 120B of the ::: Downloaded on - 13/01/2023 20:33:28 :::CIS 4 Indian Penal Code and its consequential proceedings pending in the Court of learned Chief Judicial Magistrate, Solan, in terms of .
case No.115 of 2019, be quashed and set aside. The quashing thereof has been prayed on the ground that in terms of the provisions of Section 195 of the Cr.P.C., no Court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code, 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 and said procedure has not been followed while prosecuting the petitioners. In the present case, the proceedings which stand initiated against the petitioners on the basis of challan filed in FIR No.24 of 2017 in which it was recommended that petitioners be prosecuted, inter alia, for commission of offences punishable under Sections under Sections 182, 201 and 120B of the Indian Penal Code are liable to be quashed and set aside because this has been done without following the statutory procedure provided in Section 195 of the Cr.P.C.
4. Learned counsel has relied upon the judgment of Hon'ble Supreme Court Daulat Ram Versus State of Punjab, A.I.R. 1962 Supreme Court 1206, as also the judgment of High Court of Jharkhand, reported in Sanjay Kumar Mohanty Versus The State of ::: Downloaded on - 13/01/2023 20:33:28 :::CIS 5 Jharkhand, 2021 0 Supreme (JHK) 426 and submitted that the present petition be allowed, as prayed for.
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5. The petition is opposed by the State, inter alia, on the ground that there is nothing wrong in the process which was initiated against the petitioners on the basis of the recommendations contained in the challan in issue because as the petitioners violated the law by camouflaging their kidnap and assault upon them, therefore, they are liable to be prosecuted as per law. Learned Additional Advocate General has relied upon the judgment of Hon'ble Supreme Court, in State of U.P. Versus Suresh Chandra Shrivastava, AIR 1984 Supreme Court 1108, to substantiate his contention.
6. I have heard learned counsel for the petitioners as also learned Additional Advocates General and learned counsel appearing for the proforma respondents.
7. The factual matrix is not much in dispute. As in the investigation which was carried out in an FIR registered at the behest of the petitioners, the Investigating Agency found that the FIR was lodged on concocted facts by the petitioners, accordingly, in the investigation report, the Investigating Officer recommended the prosecution of the petitioners, inter alia, under Sections 182, 201 and 120B of the Indian Penal Code.
::: Downloaded on - 13/01/2023 20:33:28 :::CIS 68. Hon'ble Supreme Court in Daulat Ram Versus State of Punjab, A.I.R. 962 Supreme Court 1206, while interpreting the .
provisions of Section 195 of the Cr.P.C. has been pleased to hold that what this Section contemplates is that the complaint must be in writing by a public servant concerned with regard to Section 182 of the Indian Penal Code. Para4 of said judgment is being reproduced hereinbelow: "Now the offence under s. 182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. In making his report to the Tehsildar therefore, if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer. The learned counsel for the State Government tries to support the action by submitting that s. 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for "a calendar". This paper was flied along with the charge sheet and it is stated that this satisfies the requirements of s. 195. In our opinion, this is not a due compliance with the provisions of that section. What the section comtemplates is that the complaint must ::: Downloaded on - 13/01/2023 20:33:28 :::CIS 7 be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was .
therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tehsildar in this case. The trial was thus without jurisdiction ab inito and the conviction cannot be maintained."
9. The High Court of Jharkhand in Sanjay Kumar Mohanty Versus The State of Jharkhand, 2021 0 Supreme (JHK) 426, has held as under: "5. The petitioner has filed this petition for quashing the order taking cognizance dated 01.10.2020 including the entire criminal proceeding arising out of F.I.R being Adityapur P.S.Case No.90/2020, pending in the court of learned Chief Judicial Magistrate, Seraikella. The prosecution was launched on the written report of this petitioner who is the informant in Adityapur P.S.Case No.90/2020 on the following premise:
"That the prosecution case has been initiated on the basis of written report of the informant namely Sanjay Kumar Mohanty (petitioner herein), the F.I.R has been registered by the Officer-in-
Charge, Adityapur P.S., wherein he has stated that on 18.07.2020 at about 7:30 P.M., the informant Sanjay Kumar Mohanty, was returning back towards his house from Saini Medical, Adityapur by his vehicle bearing Registration No.WB-20- AC-8325, when he reached near Mangalam City before 20 Metres at Service Road, two persons with covered face fired over the vehicle, but anyhow the informant escaped and no injury was received by any person. Previously Sanjay Pradhan and Ashok Pradhan, resident of Ashangi, had threatened to kill him. Hence, he expressed full doubt against them for the alleged firing. Hence, this case."::: Downloaded on - 13/01/2023 20:33:28 :::CIS 8
6. The said F.I.R was lodged by the petitioner by making allegation for the offence 307/34 of the I.P.C and sections 25(1- .
b)a/26/35/27 of the Arms Act. The police investigated the case and after few days the Investigating Officer found that the F.I.R lodged by the petitioner is false and rather than submitting Final Form in the said F.I.R., the police has arrested the petitioner on 27.07.2020 on the same F.I.R on the ground of lodging false F.I.R.
7. According to the petitioner, the trial court has taken cognizance under sections 182, 211, 120(B), 114, 109, 201, 307/34 IPC and under sections 25(1-b)a/26/27/35 of the Arms Act which is not in accordance with and in consonance of section 195 Cr.P.C read with section 468 Cr.P.C.
8. The learned counsel for the petitioner submits that so far as section 182 and 211 IPC are concerned that is the procedure prescribed under section 195 Cr.P.C is required to be followed which has not been taken into consideration by the trial court. To buttress his argument, he relied in the case of "Saloni Arora v. State (NCT of Delhi)", reported in (2017) 3 SCC 286. Paragraph nos. 9 to 14 of the said judgment are quoted hereinbelow:
"9. As rightly pointed out by the learned counsel for the parties on the strength of law laid down by this Court in Daulat Ram v. State of Punjab that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio.
10. It is apposite to reproduce the law laid down by this Court in Daulat Ram which reads as under: (AIR p. 1206) "There is an absolute bar against the court taking seisin of the case under Section 182 IPC except in the manner provided by Section 195 CrPC.
::: Downloaded on - 13/01/2023 20:33:28 :::CIS 9Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that .
action would be taken. The offence under Section 182 is complete when a person moves the public servant for action. Where a person reports to a Tahsildar to take action on averment of certain facts, believing that the Tahsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tahsildar, as the public servant concerned under Section 182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under Section 182 without the Tahsildar's complaint in writing is, therefore, without jurisdiction ab initio."
11. It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in Daulat Ram quoted above.
12. The learned counsel for the respondent (NCT, Delhi), however, submitted that the State has, therefore, made a fresh application in this behalf before the trial court which, according to him, is still pending consideration. Be that as it may."
13. We express no opinion on such application, if it is filed by the State as, in our view, it has to be dealt with on its own merits in accordance with law by the court concerned.
::: Downloaded on - 13/01/2023 20:33:28 :::CIS 1014. In the light of foregoing discussion, the appeals succeed and are allowed. The impugned orders, stand set aside."
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9. Mrs. Niki Sinha, the learned counsel appearing on behalf of the respondent-State submits that there is very serious allegation against the petitioner and the petitioner cannot be allowed to be got free and the trial court has rightly taken cognizance.
10. The offence under section 182 IPC is complete when the complaint is found to be false therefore, it is the date for starting limitation when the investigation concludes and found the averments in the complaint are false. Section 195 has been enacted mainly to regulate and control prosecutions in respect of offences against administration of justice and contempt of lawful authority.
Necessarily therefore when a matter is being judicially investigated or considered by a court or after it has been so investigated or considered, it will be an evasion of the provisions, of Section 195, Cr.P.C if a prosecution for offences against administration of justice or even contempt of lawful authority arising out of or connected with such matter can be permitted except on the complaint of the court. In view of section 195,a well settled provision of law so far as offence under section 182 and 211 Cr.P.C is concerned, section 195 is required to be followed.
11. In view of the above facts and considering that the entire exercise is rendered void ab initio which has been earlier once considered by the Hon'ble Supreme Court in the case of "Daulat Ram v. State of Punjab", AIR 1962 SC 1206, order taking cognizance dated 01.10.2020 including the entire criminal proceeding arising out of Adityapur P.S.Case No.90/2020, pending in the court of learned Chief Judicial Magistrate, Seraikella is quashed.
::: Downloaded on - 13/01/2023 20:33:28 :::CIS 1112. Seeing the nature of allegation against the petitioner, the State shall take further steps in accordance with law against the .
petitioner."
10. Hon'ble Supreme Court in Saloni Arora Versus State (NCT OF DELHI), (2017) 3 Supreme Court Cases 286, while reiterating the law laid down by it earlier in Daulat Ram Versus State of Punjab (supra), has held as under: "9) As rightly pointed out by the learned counsel for the parties on the strength of law laid down by this Court in the case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio.
10) It is apposite to reproduce the law laid down by this Court in the case of Daulat Ram (supra) which reads as under:
"There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Cr. P.C. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public ::: Downloaded on - 13/01/2023 20:33:28 :::CIS 12 servant concerned. The trial under S.182 without the Tehsildar's complaint in writing is, therefore, without jurisdiction ab initio."
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11) It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above."
11. In State of U.P. Versus Suresh Chandra Shrivastava, AIR 1984 Supreme Court 1108, Hon'ble Supreme Court has been pleased to hold as under: "The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences from an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of S. 195 of the Code."
12. This Court is of the considered view that the law is in fact well settled by Hon'ble Apex Court that where an accused commits some offences which are separate and distinct from those contained in Section 195 of the Cr.P.C., then Section 195 of the Cr.P.C. will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences ::: Downloaded on - 13/01/2023 20:33:28 :::CIS 13 committed as a part of the same transaction in which case the other offences also would fall within the ambit of Section 195 of the .
Cr.P.C.
13. In the present case, the offences which have been alleged to have been committed by the petitioners besides Section 182 of the Cr.P.C. which is contained in Section 195 of the Cr.P.C.
are alleged to have committed in the same transaction and these offences form an integral part of the main transaction and even as per the prosecution the offences committed were part of the same transaction that is the lodging of the FIR by the petitioners on the basis of a concocted and a created story.
14. That being the case, this Court is of the considered view that as the provision of Section 195 of the Cr.P.C. was not followed while charging the petitioners for commission of offence punishable under Section 182 of the Indian Penal Code alongwith other offences, the proceedings so initiated against the petitioners are per se bad and liable to be quashed and set aside in terms of the law laid down by Hon'ble Apex Court.
15. This petition, accordingly, succeeds and as prayed for by the petitioners, the prosecution of the petitioners under Sections 182, 201 and 120B of the Indian Penal Code as also the ensuing criminal proceedings pending in the Court of learned Chief Judicial Magistrate, Solan, District Solan, H.P., i.e. case No.115 of ::: Downloaded on - 13/01/2023 20:33:28 :::CIS 14 2019, are ordered to be quashed and set aside, as these proceedings were not initiated in terms of the provisions of Section .
195 of the Cr.P.C. However, the State shall be at liberty to take further steps in accordance with law against the petitioners.
16. The petition stands disposed of, so also the pending miscellaneous applications, if any.
January 13, 2023
(Rishi)
r to (Ajay Mohan Goel)
Judge
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