Madhya Pradesh High Court
Jitendra Soni vs The State Of Madhya Pradesh Thr. on 3 April, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- Cr.R.No.914/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No.914/2015
Jitendra Soni
Versus
The State of Madhya Pradesh & Another
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Shri R.S.Yadav, learned counsel for the applicant.
Shri Neelesh Tomar, learned Panel Lawyer for the State.
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ORDER
(03.04.2017) This revision application has been preferred by the applicant under Section 397 read with Section 401 of Cr.P.C. being aggrieved by the order dated 28.07.2015 passed by Additional Chief Judicial Magistrate, Bhind in Criminal Case No.1295/2014, whereby the charges under Sections 193, 199 and 211 of the Indian Penal Code (in short 'IPC') have been framed against the applicant.
2. The facts stated in brief are that the applicant had lodged an FIR dated 21.02.2014 in which he had named Suresh as an accused, who was alleged to have committed offence punishable under Section 8 of Prevention of Children from Sexual Offence Act, 2012 (in short 'POCSO Act'). On the basis of FIR lodged by the applicant, a charge-sheet was filed before the court below and -( 2 )- Cr.R.No.914/2015 trial was initiated. In the trial, the applicant and his minor daughter were invited as prosecution witnesses who, at the time of recording the statements before the trial Court took somersault and stated that the accused Suresh has not committed any offence as alleged against him. Learned Fourth Additional Sessions Judge upon finding that the trial has been initiated due to wrong or false statement of the applicant acquitted the accused person therein. However, while doing so, the trial Court recorded an observation that the applicant has either falsely lodged an FIR or had narrated a false version of the story at the time of recording of his statement before the Court, accordingly, directed to initiate the proceedings, as in the opinion of the Court, the act of the applicant is punishable under Sections 193, 199 and 211 of IPC.
3. After receiving the complaint, the trial Court framed the charges against the applicant under Sections 193, 199 and 211 of IPC which are subject matter of challenge before this Court.
4. The contention of the learned counsel for the applicant is that the order of the court below is without jurisdiction as the complaint for the offences referred above can only be made by following the procedure prescribed under Section 340 of Cr.P.C.. According to him, a bare perusal -( 3 )- Cr.R.No.914/2015 of the said provision goes to show that, the allegation has to be made on the basis of any proceeding conducted before the Court and not before any other public office. In this case, the applicant is accused of either making a false F.I.R. or a false statement before the Court. With respect to making of the false F.I.R., it is submitted that the offences under which the complaint has been filed cannot be taken cognizance of, for the reason that, firstly, the F.I.R. is neither recorded after administering oath to the complainant nor the complainant is bound by law to make a declaration. Therefore, the impugned order suffers from grave illegality and is not sustainable in law. In order to substantiate this contention, learned counsel for the applicant has placed reliance on the judgment in the case of Vittappan v. State, reported in 1987 Cri. L.J. 1994.
5. To the contrary, learned counsel for the State has supported the impugned order and invited attention of the Court to the growing tendency of malicious prosecution in order to wreak personal vengeance and using the criminal justice to settle their personal scores.
6. The rival contentions cannot be met out without referring to the legal position with regard to the manner in which proceedings in -( 4 )- Cr.R.No.914/2015 terms of Section 340 of the Cr.P.C. are to be drawn. In this regard, it is worthy to reproduce the observations made by the Hon'ble Apex Court in the case of Babita Lila & Another vs. Union of India reported in (2016) 9 SCC 647 wherein the procedure has been expounded in the following paragraphs of the judgment :-
38. Noticeably in course of the adjudication, it was marked that Section 195 was an exception to an ordinary rule that any person could make a complaint in respect of commission of an offence triable under the Code. The restrictive mandate of this provision of the Code against cognizance of any offence punishable under the sections mentioned therein, when those pertain to any proceedings in any court, except on the compliant in writing of such court or of some other court to which such court is subordinate, was underlined in particular. This Court, thus emphasised that in the matter of invocation of Section 195(1)(b) of the Code, vis-a-vis a complaint about any of the offences as mentioned therein, an exception to the ordinary rule of making complaint by any person has been carved out and by way of a safeguard, only the court in the proceeding before which such offence had been committed or such officer of the Court as it may authorise in writing or some other court to which to this Court is subordinate, has been legislatively identified as competent to do so.
41. Section 195(1)(b) of the Code, which is relevant for the instant pursuit, prohibits taking of cognizance by a court vis-a-vis the offences mentioned in the -( 5 )- Cr.R.No.914/2015 three sub-clauses (i), (ii) and (iii) except on a complaint in writing of the Court when the offence(s) is/are alleged to have been committed in or in relation to any proceeding before it or in respect of a document produced or given in evidence in such a proceeding or by such officer of that court as it may authorise in writing or by some other court to which the court (in the proceedings before which the offence(s) has been committed) is subordinate. A patently regulatory imposition in the matter of lodging of a complaint for such offences is discernible assuredly to obviate frivolous and wanton complaints by all and sundry.
46. That the provisions of Section 195 of the Code are mandatory so much so that non-compliance thereof would vitiate the prosecution and all consequential orders, has been ruled by this Court, amongst others in C. Muniappan v. State of T.N., (2010) 9 SCC 567 wherein the following observations in Sachida Nand Singh v.
State of Bihar (1998) 2 SCC 493 were recorded with approval.
"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 is 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.....".
-( 6 )- Cr.R.No.914/2015(emphasis supplied).
7. In the light of above legal position, this court is of the considered opinion that the court below has committed error in framing the charge against the applicant for the reason that learned Fourth Additional Session Judge has forwarded a vague complaint without arriving at an opinion after due inquiry or application of mind as to which is the stage at which the applicant is accused of making a false application or a false statement, meaning thereby it is not clear from complaint that, whether the Court has acquitted the applicant of making false statement for registration of F.I.R. or while recording his statement before the trial Court. The same is mandatory because if a false statement is given for registration of F.I.R. then no cognizance can be taken by the Court for commission of offences presently charged against the applicant as the same has not been done before the Court rather before the police. Further, the reasoning given by the Kerala High Court in Vittappan's case (supra) is also enforced as the same is squarely applicable to the facts of the case.
8. This matter has another counter, there is an allegation of false statement before the court during the course of trial also, in this respect, the case can be proceeded in terms of Section 340 of -( 7 )- Cr.R.No.914/2015 Cr.P.C.. which is not complied. Thus, the maintainability of the charge for commission of offence punishable under Section 193 IPC is not established.
9. The ingredients for offence under Section 199 of IPC are not satisfied, firstly, because the portion turns as false statement has not touched any material to get the object for which the so-called declaration is made. These ingredients have been explained by the Hon'ble Supreme Court in the case of Jotish Chandra Chaudhury v. State of Bihar, reported in 1969 Cr.L.J. 257.
10. Taking this view of the matter, the revision application stands allowed. Thus, as an obvious consequences, the impugned order passed by the trial Court framing the charges under Sections 193, 199 and 211 of IPC is set aside and the applicant is discharged from the aforesaid charges.
The revision petition is disposed of. Copy of this order be sent to the trial Court for information and necessary compliance.
(S.K.Awasthi) Judge AK/-