Gujarat High Court
Nikhilbhai Kesubhai Patel vs State Of Gujarat on 27 April, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/8451/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8451 of 2018
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NIKHILBHAI KESUBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. JAY S. SHAH for MR ASIM J PANDYA(542) for the PETITIONER(s) No.
1,2,3,4,5
MR. RAKESH PATEL, APP (2) for the RESPONDENT(s) No. 1 & 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/04/2018
ORAL ORDER
1. RULE returnable forthwith. The learned APP waives service of notice of rule for and on behalf of the respondents State of Gujarat.
2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants accused seek to invoke the inherent power of this Court praying for quashing of the proceedings of the Criminal Case No. 9913/2017 pending in the Court of the 13th J.M.F.C., Mirzapur, Ahmedabad arising out of the F.I.R. being C.R. No I8/2017 registered at the Vastrapur Police Station, Ahmedabad for the offences punishable under Sections 143 and 188 of the Indian Penal Code.
3. The principal argument rather only argument of the learned counsel appearing for the applicant is Page 1 of 21 R/CR.MA/8451/2018 ORDER that the prosecution should fail as the court below could not have taken cognizance of the offence on a police report, in view of the bar of Section 195 of the Code of Criminal Procedure. The issue raised by the learned counsel is squarely covered by the judgment of this Court in the case of Govardhankumar Thakoredas Asrani Vs. State of Gujarat and another reported in 2017 CRI.L.J. (NOC) 547 (GUJ.). The relevant findings recorded by this Court in the judgment are reproduced herein below:
"36. Before adverting to the rival submissions canvassed on either side, I should look into few relevant provisions of law. Section 195 of the Cr.P.C., relevant for the purpose of deciding the issue at hand, 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;
37.Section 2(d) of the Cr.P.C. defines the term complaint. The same reads as under;
(d) " complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation. A report made by a police officer in a case which discloses, after investigation, the commission of a non cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the Page 2 of 21 R/CR.MA/8451/2018 ORDER complainant;
38. As a general rule, any person, having knowledge of commission of an offence may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. There are exceptions to this general rule, as evident from sections 195 and 196 of the Cr.P.C. Section 195 is one of the sections, which prohibits a court from taking cognizance of certain offences unless and until a complaint has been made by some particular authority or person. The other sections, with similar prescriptions, are sections 196 to 199 of the Code. Section 195 of the Code has been enacted as a safeguard against the irresponsible and reckless prosecutions by the private individuals in respect of the offences, which relate to the administration of justice and contempt of lawful authority.
39. It is true that section 195 of the Code does not bar the trial of an accused for a distinct offence disclosed by the same set of facts and is not so stated therein. Section 195 also does not provide further that if in the course of the commission of that offence, the other distinct offences are committed, the court concerned is debarred from taking cognizance in respect of those offences as well. However, if the perusal of the first information report and other papers of the chargesheet makes it clear that the offence under sections 186 or 188 of the IPC, as the case may be, is closely interconnected with the other distinct offences and cannot be split up, then, in such circumstances, the bar of section 195 of the Cr.P.C. will apply to such other distinct offences also.
40.In the aforesaid context, I may refer to and rely upon the following decisions of the Supreme Court;
40.1 In the case of State of U.P. vs. Suresh Chandra Srivastava & Ors., AIR 1984 SC 1108. A bench of three judges very succinctly explained the provisions of section 195, observing as under;
6. In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471 and 120B I..C.are committed, the complaint could proceed or not. 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 form 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 sec. 195 of the Code.
40.2 In the case of State of Karnataka vs. Page 3 of 21 R/CR.MA/8451/2018 ORDER Hemareddy & Anr., AIR 1981 SC 1417, the Supreme Court held that in the cases where in the course of the same transaction, an offence, for which, no complaint by a court is necessary under section 195(1)(b) of the Cr.P.C., and an offence, for which , a complaint of a Court is necessary under that subsection are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in section 195(1)(b), Cr.P.C., should be upheld. I may quote the observations as contained in paras8,9 and 13 as under;
8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under s. 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that subsection, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in s. 195(1)
(b) of the Code of Criminal Procedure should be upheld.
9. However, it is not possible to agree with the learned Judges of the High Court that the complaint in this case given by the private individual Narsappa Eliger, P.W. 3 against Hemareddy alias Vemareddy for the offence under s. 467 read with s. 114 I.P.C. is not cognizable and 703 that s. 195(1)(b) of the Criminal Procedure Code is attracted so far as Hemareddy alias Vemareddy is concerned. The document forged by Pyatal Bhimakka, A2 is a sale deed dated 101170. The suit for redemption of the mortgage was filed by the complainant Narsappa Eliger, P.W. 3 on 1711 70. He filed the complaint before the Police on 241170 and before the court subsequently on 151270. It is not disputed that the forged sale deed dated 101170 was not produced in the suit filed by the complainant for redemption of the mortgage. Mr. P. Ram Reddy, learned counsel appearing for A1, who assisted the court as Amicus Curiae for Pyatal Bhimakka, A2, invited our attention to the decision in re. Vasudeo Ramchandra Joshi and submitted that the complaint should have been filed by the court in which the suit for redemption of the mortgage was filed by the complainant Narsappa Eliger in view of the provisions of s. 195(1)(b) of the Code of Criminal Procedure and that as the complaint was filed directly by the private individual, the prosecution of Hemareddy alias Vemareddy for offences under s. 467 read with s. 114 I.P.C. and s.
193 I.P.C. is bad. In that decision reference has been made to the decisions of the Bombay High Court in (1912) 14 Bombay Law Reporter 362 and 715. In that case there was a proceeding before the Magistrate at Bhusaval against one Vana Khusal in respect of the charge under s.
Page 4 of 21R/CR.MA/8451/2018 ORDER 401 I.P.C. An application was made for bail on behalf of that person by Vasudeo Ramachandra Joshi, the petitioner before the High Court, but that application was refused on April 1, 1922. The statements of three witnesses were recorded under s. 164, Criminal Procedure Code on April 18, 1922 from which it appeared that on April 10, 1922 those three witnesses had an interview with the Pleader Vasudeo Ramachandra Joshi and he had instigated them to give false evidence. On April 15, 1922 another case against Vasudeo Ramachandra Joshi in respect of a dacoity was sent up to the Magistrate. The case of the prosecution was that in connection with that case of dacoity the alleged instigation by the Pleader to give false evidence was made. Those witnesses were examined before the Magistrate on June 2, 1922 in the dacoity case, and on June 7, 1922 a complaint was filed by the Police against Vasudeo Ramachandra Joshi, charging him with having abetted the giving of false evidence. The learned Judges of the Bombay High Court who heard the Civil Revision Case have observed :
"On behalf of the Crown it is urged that no sanction is necessary because at the date of alleged abetment no proceeding in relation to which the offence is said to have been committed, was pending. It is contended that the offence 704 had no relation to the proceedings pending on April 10 and that the proceedings to which it related, were sent up to the Magistrate on April 19 and were not pending at the time.
It is quite clear, however, from the very nature of the offence alleged against the present petitioner that if the offence was committed, it was committed in relation to the proceeding in which those three persons were to be examined as witnesses, and it is difficult to understand how it could be said that the present proceedings against the petitioner could go on without the sanction of the Court before which these proceedings are pending at present, and in relation to which the offence is said to have been committed. I assume, without deciding that the offence alleged against the petitioner related to the Budhgaon dacoity case and not to the case under s.
401, Indian Penal Code , then actually pending even then the offence related to proceedings which were clearly under contemplation then and which were sent up to the Magistrate on April 15. The expression used in s. 195(1) (b) is wide enough to cover such a proceeding and the decisions of this Court in re Khanderao (1912) 14 Bombay L.R. 362 and in re Mahadev Yadneshwar (1912) 14 Bombay L.W. 715, support that conclusion. I am unable to follow the reasoning adopted by the learned Magistrate in holding that no sanction is necessary. We, therefore, quash the Page 5 of 21 R/CR.MA/8451/2018 ORDER present proceedings, without prejudice to any proceeding that may be taken after obtaining the necessary sanction.
I may also point out that the prosecution of a pleader defending an accused person while that proceeding is pending, and before the evidence of the witnesses who are said to have been instigated to give false evidence has been appreciated by the Court, is inadvisable. If such a prosecution is to be started it ought to be started after the principal proceeding, in relation to which the offence is said to have been committed, has terminated."
13. We are bound by the view expressed in this decision that the Legislature could not have intended to extend the prohibition contained in s.
195(1) (c) Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to his becoming such party. In the decision in Raghunath and Others v. State of U.P. and Others it is observed :
"In this Court the main contention raised on behalf of the appellants by their learned counsel was that even prosecution for an offence under Section 465 I.P.C. requires complaint by the revenue court concerned as such an offence is covered by Section 195(1)(c), Cr.P.C. This contention is difficult to accept. This Court has recently in Patel Laljibhai Somabhai v. The State of Gujarat [1971] 2 SCC 376 after considering the conflict of judicial opinion on this point, approved the view taken in Kushal Pal Singh case (supra). According to that decision the words "to have been committed by a party to any proceeding in any court" in Section 195(1)(c) mean that the offence should be alleged to have been committed by the party to the proceeding in his character as such party, that is, after having become a party to the proceeding. The appellants' learned counsel tried to distinguish the decision of the Allahabad High Court in Kushal Pal Singh case (supra) by pointing out that in that case the offence of forgery was alleged to have been committed in 1898, more than 25 years before it was produced or given in evidence in court and it was for this reason that Section 195(1)(c), Cr.P.C. was held to be inapplicable. In our view, the duration of time between the date of forgery and the production or giving in evidence of the forged document in court is not a governing factor. The principle laid down in Sombabhai's case (supra) was not founded on any such consideration. Reference to such delay was made in that decision in another context. After taking notice of the fact that Section 195(1)(c), Cr. P.C. deprives a private aggrieved party of the general right Page 6 of 21 R/CR.MA/8451/2018 ORDER recognized by Section 190 Cr.P.C. of directly initiating criminal proceedings this Court observed in the case:
"The offences about which the Court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to be more appropriate to adopt in strict construction of confining the prohibition contained in Section 195(1)(c) only to those cases in which the 710 offences specified therein were committed by a party to the proceeding in the character as such party.
40.3 In one of the recent pronouncements of the Supreme Court in the case of Saloni Arora vs. State of NCT of Delhi, Criminal Appeal No.64 of 2017, decided on 10.01.2017, the Supreme Court has explained the object of section 195 of the Code, observing as under;
10) 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.
11) 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 Crl.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 Page 7 of 21 R/CR.MA/8451/2018 ORDER 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 chargesheet. The complaint must be in writing by the public servant concerned.
The trial under S.182 without the Tehsildars complaint in writing is, therefore, without jurisdiction ab initio. (Emphasis supplied)
12.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.
41. Thus, what is discernible from the decisions referred to above of the Supreme Court is that if in truth and substance, an offence falls in the category of sections in section 195, it is not open to the court to undertake the exercise of spliting them up and proceeding further against the accused for the other distinct offences. This would depend on the facts of each case. It cannot be laid as a straitjacket formula that the Court cannot undertake the exercise of spliting up. It would depend upon the nature of the allegations and the materials on record.
42. Let me, at this stage, look into the decision of the Supreme Court in the case of BasirUlHaq (supra). In Basir ulHaq (supra), a contention was raised before the Supreme Court that the Magistrate had no jurisdiction to take cognizance of the complaint under section 500 and section 297 of the penal code as the facts disclosed constituted an offence under section 182 , which offence could not have been tried except on a complaint by the public servant. The Supreme Court held as under;
9. Section 195, Criminal Procedure Code , on which the question raised is grounded, provides, inter alia, that no court shall take cognizance of an offence punishable under sections 172 to 188, Indian Penal Code , except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under section 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is Page 8 of 21 R/CR.MA/8451/2018 ORDER debarred from taking cognizance in respect of those offences as well. The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made.
It was however argued that if on the same facts an 843 offence of which no cognizance can be taken under the provisions of section 195 is disclosed and the same facts disclose another offence as well which is outside the purview of the section and prosecution for that other offence is taken cognizance of without the requirements of section 195 having been fulfilled, then the provisions of that section would become nugatory and if such a course was permitted those provisions will stand defeated. It was further said that it is not permissible for the prosecution to ignore the provisions of this section by describing the offence as being punishable under some other section of the Penal Code.
10. In our judgment, the contention raised by the learned counsel for the appellants is without any substance so far as the present case is concerned. The charge for the offence under section 297, Indian Penal Code, could in no circumstance, as pointed out by the High Court, be described as falling within the purview of section 195, Criminal Procedure Code. The act of trespass was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concern the conduct of the appellants during the post report period. In these circumstances, no serious contention could be raised that the provisions of section 195 would stand defeated by the magistrate having taken cognizance of the offence under that section.
11.As regards the charge under section 500, Indian Penal Code, it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of section 195 from seeking redress for the offence committed against him. Section 499, Indian Penal Code, Page 9 of 21 R/CR.MA/8451/2018 ORDER which mentions the ingredients of the offence of defamation gives within defined limits immunity to persons making depositions in court, but it is now well settled that immunity is a qualified one and is not absolute as it is in English law. Under section 198, 844 Criminal Procedure Code, a complaint in respect of an offence under section 499, Indian Penal Code, can only be initiated at the instance of the person defamed, in like manner as cognizance for an offence under section 182 cannot be taken except at the complaint of the public servant concerned. In view of these provisions there does not seem in principle any warrant for the proposition that a complaint under section 499 in such a situation cannot be taken cognizance of unless two persons join in making it, i.e., it can only be considered if both the public servant and the person defamed join in making it, otherwise the person defamed is without any redress. The statute has prescribed distinct procedure for the making of the complaints under these two provisions of the Indian Penal Code and when the prescribed procedure has been followed, the court is bound to take cognizance of the offence complained of.
12. The decided cases fully support this view and our attention has not been drawn to any case which has taken a contrary view as regards offences under section 500, Indian Penal Code. In Satish Chandra Chakravarti v. Ram Dayal De (1), five judges of the Calcutta High Court considered this question and held that where the maker of a single statement is guilty of two distinct offences, one under section 21 1 , Indian Penal Code, which is an offence against public justice, and the other an offence under section 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non compoundable, while the latter remains compoundable; in one for the the initiation of the proceedings the legislature requires the sanction of the court under section 195 Criminal Procedure Code, while in the other, Cognizance can be taken of the offence on the complaint of the person defamed.
It could not be denied that the accused could be tried of charges under sections 182 and 500, Indian Penal Code, separately on the same facts provided the public servant as well as the person defamed made complaints. If that is so, there is no reason why one cannot be tried independently of the other so long as the requirements of each are satisfied. Harries C. J. while delivering the Page 10 of 21 R/CR.MA/8451/2018 ORDER Full Bench decision in question examined all the earlier cases of the Calcutta High Court and observed that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of sectionis 195 to 199 of the Code of Criminal Procedure. Sections 195 to 199 deal with the requisites for the prosecution of certain specified offences and the provisions of those sections must be limited to prosecutions for the offences actually indicated. If it was the intention of the legislature to make sanctions or complaints in a certain form necessary for the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in these sections, the legislature could have said so but it did not.
13. Recently this matter was canvassed before a Full Bench of the Madras High Court and it was held that in such cases it was open to the party defamed to take proceedings under section 499, Indian Penal Code, without the court filing a complaint in accordance with the provisions laid down in section 195. There the question was whether the alleged defamer who had given false evidence in a court could be prosecuted under section 499, Indian Penal Code, without a complaint by the court before whom fie gave evidenice and the question was answered in the affirmative after an exhaustive review of the decided cases of the different High Courts in India. It was said that if the offence of 846 giving false evidence in a judicial proceeding and defamation do not belong to the same genus but are distinct and separate in their characteryistics and ingredients, it was difficult to perceive any serious inhibition by the Criminal Procedure Code for initiation and trial of one of these offences independently of anterior resort to fulfillinig the conditions necessary to comnience a prosecution for the other. These observations have apt application to the present case. The ingredients of the offence under section 182 cannot be said to be the ingredients for the offence under section 500. Nor can it be said that the offence relating to giving false information relates to the same group of offences as that of defamation.
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 Page 11 of 21 R/CR.MA/8451/2018 ORDER servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with ail 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 misdescribing it or by putting a wrong label on it.
15. Before concluding, reference may also be made to the decision of the Federal Court in Hori Ram Singh v. Emperor, AIR 1939 F.C. 43(B). The appellant in that case was charged with offences under sections 409 and 477A, Indian Penal Code. The offence under section 477A could not be taken cognizance of without the previous consent of the Governor under section 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under section 409, Indian Penal Code. The charge was that the accused dishonestly misappropriated or converted to his own certain medicines entrusted to him in his official capacity as a subassistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, be willfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings under section 477A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing oil the merits as regards the charge under section 409, Indian Penal Code, and the order of acquittal passed by the sessions judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of misappropriation under section 409 and the other an offence under section 477A which required the sanction of the Governor, the cir cumstance that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under section 409.
43. Thus, according to the decision of the Supreme Court refereed to above, the provision in section 195 of the code should not be evaded by resorting to devises and camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily Page 12 of 21 R/CR.MA/8451/2018 ORDER and essentially an offence for which a complaint of the court or of the public servant is required. If in truth and substance, the offence falls in the category of the sections mentioned in section 195 of the Code, the prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong lable on it or changing its garb. If the facts disclose an offence requiring special complaint under section 195 of the Code, the provision cannot be circumvented by filing a complaint, for which, no special complaint is required under the law, the nature of the offence being the same.
44. Again In Re. Chinnayya Goundan AIR 1948 Mad 474 : (194849 Cri LJ 737) Govinda Menon, J. after considering the case law stated:
The principle deducible from these cases is that when a complaint is made to a Court the facts should be considered as a whole and there should be no splitting up of the facts.
Therefore, the Court is not entitled to disregard some of the facts and try an accused person for an offence which the remaining facts disclose. Considering the acts as a whole if they disclose an offence for which a special complaint is necessary under the provisions of Section 195, Cr. P.C., the Court cannot take cognizance of the case at all unless that special complaint has been filed.
45. In State v. Kathi Unad AIR 1955 Saurashtra 10 : (1955 Cri LJ 52), the learned Judge relying on the Supreme Court case of BashirulHaq AIR 1953 SC 293 : (1953 Cri LJ 1232) said that the very act of obstruction lay in the assault and the hurt to complainant and that the offence primarily committed was under
Section 186, I.P.C. and to convict the accused for the offence under Section 332, I.P.C. would be tantamount to holding them guilty under Section 186, I.P.C. and then convicting them for the offence under Section 332, I.P.C. They came to the conclusion that the prosecution could not circumvent the provisions of Section 195 by a dubious method. (See also Makaradhwaj Sahu v. State AIR 1954 Orissa 175 : (1954 Cri LJ
950). The decision in AIR 1953 Nag 290 : (1953 Cri LJ 1573) is also pertinent.
46. In some of the applications before me, the only offence is either section 186 or 188 of the IPC. In such type of cases, there should not be any difficulty in quashing the prosecution in view of the bar of section 195 of the Cr.P.C. However, there are few cases on hand, in which, over and above sections 186 or 188 of the I.P.C, the other offences are also there which are not covered under section 195 of the Cr.P.C. It is only in such cases, the court has to be careful. I have noticed that in some of the cases, there is a charge of section 353 of the IPC along with section 186 of the IPC. I am Page 13 of 21 R/CR.MA/8451/2018 ORDER of the view that the very act of obstruction lies in the alleged assault and use of criminal force. In truth and substance, such an offence would fall in the category of sections mentioned in section 195 of the Code and it is not open to byepass its provisions even by choosing to prosecute under section 353 of the IPC only. There is no scope, in any of the matters on hand, having regard to the materials on record, to split up the offences so as to avoid the bar of section 195 of the Cr.P.C as all the offences can be said to have been committed in the course of one transaction. All the offences can be said to have been an integral part of one transaction.
47. In the case of Rajendranath Chouhan vs. Ratnakar Jagati, AIR 1995(1) Orissa LR 250, Arijit Pasayat, J., as his lordship then, was considered the two decisions referred to by me above of the Supreme Court in the case of Suresh Chandra Srivastava (supra) and Hemareddy (supra). I may quote the observations of his lordship in para5 as under;
5. So far as the plea relating to absence of essential ingredients of Section 600, IPC, is concerned, it is submitted that since no cognizance can be taken in respect of Section 211.1PC in the absence of Court, complaint by the concerned Court or by a Court superior to it, cognizance cannot be taken in respect of an alleged connected offence. It is true that it is not permissible for the prosecution to drop a serious charge and select one which does not require adoption of procedure under Section 195 of the Coda. (See Or. S. Dutta v. State of U. P.: AIR 1966 SC 523). Its provisions cannot be evaded by resorting to devices of camouflage. Even for offences cognizance of which is per se not barred by this Section, a Magistrate should not take cognizance if it is not a distinct offence or if in truth and substance the offence falls under the category of Sections mentioned in the Section. The correct test applicable as indicated by Apex Court is that where an accused commits some offences which are separate and distinct from those contained in Section 195 only those offences mentioned therein shall be affected, unless such offences form an integral part so as to constitute offences committed as a part of the same transaction, in which case such offences would also fall within ambit of the Section (See State of U. P. v. Suresh Chandra Srivastava and Ors: AIR 1984 SC 1108) Where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1) of the Code and an offence for which a complaint is necessary under that sub section are committed and it is not possible to split up, the prosecution of the accused for the offences not mentioned should not be upheld. {See State of Karnataka v. Hemareddy and Anr. ; AIR 1931 SC 1417). But merely by changing garb or label of an offence which is essentially an offence covered by the provisions of the Page 14 of 21 R/CR.MA/8451/2018 ORDER Section, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. Action of the JMFC refusing to reconsider the cognizance relating to Section 500, 1PC cannot be faulted in view of the fact that the case has been pending for seven years. It is true that any person can question legality and propriety of cognizance as indicated b the Apex Court in the case of K M. Mathew v. State of Kerala and Anr. (1992) 5 OCR 66: But such a prayer cannot be made after inordinate delay. Though no period cannot he prescribed by any hard and fast rule, much belated approach can be a ground for noninterference.
48. I must, at this stage, also look into the decision of the Supreme Court in the case of C. Muniappan & Ors. vs. State of Tamil Nadu, (2010) 9 SCC 567. The Supreme Court considered the charge under section 188 of the IPC visa vis section 195 of the Cr.P.C. I may quote the relevant observations as under;
27. Section 195 Cr.PC 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 ........
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"
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, illwill 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.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 Page 15 of 21 R/CR.MA/8451/2018 ORDER 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 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 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 BasirulHaq & 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 misdescribing 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."
(Emphasis added)
31. In Sachida Nand Singh & Anr. v. State of Bihar & 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 Page 16 of 21 R/CR.MA/8451/2018 ORDER statute or the context requires otherwise." (Emphasis supplied)
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 :
"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.
The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside." (Emphasis added)
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. Noncompliance 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.
34. Learned counsel for the appellants have submitted that no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, entire prosecution case falls.
35. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC. However, we do not agree with the further submission that absence of a complaint under Section 195 Cr.PC falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case.
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36. There is ample evidence on record to show that there was a prohibitory order; which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no `Rasta Roko Andolan'. Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, we hold that in case the charges under Section 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned.
49. It appears that in C. Muniappan (supra), two separate first information reports were registered. One for the offence punishable under sections 147, 148, 149, 436 and 302 of the Penal Code and under sections 3 and 4 of the Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992, and the another one for the offence punishable under section 188 of the IPC. As both the first information reports were clubbed, the same resulted in one consolidated chargesheet. In such circumstances, it was argued that the court concernd could not have taken cognizance upon the chargesheet filed by the Investigating Agency in view of the bar of section 195 of the Cr.P.C. On behalf of the State, it was submitted that the framing of the charge under section 188 in the absence of a written complaint of the public servant could not be said to be fatal to the prosecution case. The entire prosecution case could not have been discarded merely on the grounds of improperly framing the charge under section 188 of the IPC. The clubbing of the two crimes, i.e., the two first information reports did not cause any prejudice to any of the accused. In such circumstances, the Supreme Court observed in para36 that quashing of the charge under section 188 of the IPC, by no means, had any bearing on the case of the prosecution so far as the charges for the other offences were concerned.
50. Let me now deal with the second category of the cases, in which, the chargesheet is yet to be filed as the investigation is in progress. Mr. Amin, the learned Public Prosecutor appearing for the State very vehemently submitted that the statutory power of the police to investigate under the Code is not, in any way, controlled or circumscribed by section 195 of the Cr.P.C. According to Mr. Amin, this Court should not interfere at this stage with the investigation considering the bar of section 195 of the Cr.P.C. Mr. Amin, however, submitted that upon the chargesheet, 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) of the Cr.P.C.
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51. In State of Punjab vs. Raj Singh & Anr., 1998 Crl. L.J., 1104, the Supreme Court took the very same view as regards the statutory power of the police to investigate under the Code not in any way controlled or circumscribed by section 195 of the Cr.P.C. I may quote the relevant observations as under;
We are unable to sustain the impugned order of the High Court quashing the F.I.R. lodged against the respondents alleging commission of offences under Sections 467 and 468 I.P.C. by Chem in course of the proceeding of a civil suit, on the ground that Section 195 (1) (b) (ii) Cr.P.C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 Cr.P.C. 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. P.C.; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognisable 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 proceeding 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.P.C. It is of course true that upon the chargesheet (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 19591) (b) Cr. P. C. , but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down tin section 340 Cr. P.C. The judgment of this Court in Gopal Krishna Menon and Anr. Vs. D. Raja Reddy [AIR 1983 SC 1053], on which the High Court relied, has no manner 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. P. C.
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 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 Page 19 of 21 R/CR.MA/8451/2018 ORDER 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 chargesheet (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 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 office 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 Page 20 of 21 R/CR.MA/8451/2018 ORDER Respondents, much less the right to file an appeal under Section 341, is affected."
4. In view of the above, this application is allowed. The proceedings of Criminal Case No. 9913/2017 pending in the Court of the 13th J.M.F.C., Mirzapur, Ahmedabad arising out of the F.I.R. being C.R. No I8/2017 registered at the Vastrapur Police Station, Ahmedabad for the offences punishable under Sections 143 and 188 of the Indian Penal Code is hereby quashed.
5. It is clarified that the criminal proceedings are hereby quashed with a liberty to the State to initiate fresh proceedings by following the procedure prescribed by law. Whatever investigation has been carried out so far, the same will not be rendered invalid. For the purpose of initiating fresh proceedings in accordance with law, the very same materials can be used.
6. With the above, this application is disposed of. Rule is made absolute.
7. Direct service is permitted.
(J.B.PARDIWALA, J.) pradhyuman Page 21 of 21