Allahabad High Court
Rai Sahab vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 19 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- APPLICATION U/S 482 No. - 9217 of 2022 Applicant :- Rai Sahab Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. Counsel for Applicant :- Himanshu Hemant Gupta Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Himanshu Hemant Gupta, learned counsel for the applicant as well as learned AGA for the State and perused the record.
The instant application has been moved by the applicant- Rai Sahab with the prayer to quash the charge sheet dated 08.12.2015, Cognizance Order dated 27.05.2016 and the entire proceedings of Criminal Case No. 14304/2021 (State Vs. Ram Kedar and others), pending in the court of Civil Judge (Senior Division) FTC-II Pratapgarh, under Section 188 IPC, 1860, Police Station Aaspur Deosara, District Pratapgarh, so far as it relates to the applicant.
Learned counsel for the applicant while referring to the charge sheet dated 8.12.2015 as well as cognizance order dated 27.05.2016, submits that the trial court has committed manifest illegality in taking the cognizance of the offence under Section 188 IPC in complete disregard to Section 195 Cr.P.C.
Learned counsel for the applicant in support of his submissions has relied on the following case laws:-
"(i) Daulat Ram Vs. State of Punjab reported in AIR 1962 SC 1206.
(ii) P.D. Lakhani Vs. State of Punjab and others reported in (2008)5 SCC 150.
(iii) G.Ahmed Basha Vs. Inspector of Police and another reported in 2019 SCC Online Mad 30325
(iv) Bandekar Brothers Pvt.Ltd. Vs.Prasd Vassudev Keni and others reported in (2020)20 SCC 1.
(v) Moogambigai Vs. State passed in Crl. O.P. (MD) No. 7758/2020 (decided on 23.02.2021) Madras High Court.
(vi) C. Muniappan and others Vs. State of Tamilnadu reported in (2010)9 SCC 567.
(vii) Saloni Arora Vs. State of Delhi reported in (2017)3 SCC 286.
(viii) Mohan Kukreja Vs. State of Delhi reported in 2019 SCC Online Del. 6398.
(ix) Babu Lal & others Vs. State of Rajasthan reported in 1998 SCC Online Raj 361.
While referring to Section 195 Cr.P.C. it is vehemently submitted that without adopting the procedure as provided under Section 340 Cr.P.C. the trial court was barred from taking cognizance of offence under Section 188 IPC and therefore all the proceedings of the case pending before the trial court including the cognizance/ summoning order dated 27.5.2016 is liable to be quashed/ set aside.
Learned AGA, however, opposes submissions made by learned counsel for the applicant but could not dispute the settled legal position pertaining to taking of cognizance with regard to the offence under Section 188 IPC.
Having heard learned counsel for the parties and having perused the record, it is evident that the FIR pertaining to commission of offence under Section 188 IPC was lodged by the concerned Sub Inspector of Police, namely, Shiv Poojan Singh, Police Station Aaspur Deosara, District Pratapgarh and after investigation the charge sheet was also filed under Section 188 IPC and vide order dated 27.5.2016 the trial court has taken cognizance of offence and issued process against the applicant to face trial. The case laws relied on by learned counsel for the applicant are sufficient to portrait that the cognizance pertaining to offence under Section 188 IPC is barred by virtue of Section 195 Cr.P.C. and could only be taken in the manner provided under Section 195 Cr.P.C.
For ready reference Section 195 Cr.P.C. is extracted herein below:-
"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;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
A perusal of the Section 195 Cr.P.C. would reveal that it is provided therein that no court shall take cognizance of an offence punishable under the penal sections enumerated therein (including Section 188 IPC) except of a complaint in writing of the public servant. The law relied on by learned counsel for the applicant would suggest that Section 195 Cr.P.C. has been held to be mandatory and contravention of which vitiates the cognizance as well as the entire trial.
Section 195 Cr.P.C. provides that cognizance pertaining to Section 188 IPC shall be taken only on a complaint made in writing by the public servant concerned or some other public servant to whom he is administratively subordinate and Section 2(d) Cr.P.C. defines complaint as a complaint made to a Magistrate pertaining to commission of an offence but does not include the police report and explanation appended with this section clarifies that 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 who had submitted this report to be complainant.
Perusal of definition as provided under Section 2(d) of Cr.P.C. reveals that if after investigation the charge sheet has been filed under the offences which are non-cognizable it is only on that condition the police report submitted under Section 173(2) Cr.P.C. may be treated as complaint while in the instant case charge sheet has been submitted under Section 188 IPC, which is a cognizable offence. Thus the explanation appended with Section 2(d) of Cr.P.C. was also not to be of any help to the prosecution.
Thus, above factual position is suffice to reveal that the trial court has taken the cognizance of the offence under Section 188 IPC without complying the provision as contained under Section 195 Cr.P.C. and in the considered opinion of this Court the order whereby the cognizance has been taken as well all the consequential proceedings are void ab-initio as the same have been vitiated on the basis of taking of cognizance by the trial court which was otherwise barred by virtue of Section 195 Cr.P.C.
In view of the above factual and legal position the instant application is allowed and the entire proceedings initiated against the applicant/ accused - Rai Sahab on the basis of cognizance taking order dated 27.5.2016 pertaining to case Crime No. 0340 of 2015, under Section 188 IPC, Police Station Aaspur Deosara, District Pratapgarh pending in the court of Civil Judge (Senior Division) FTC-II Pratapgarh, is hereby quashed, so far it relates to the applicant.
Order Date :- 19.12.2022 Muk