Allahabad High Court
Dayashankar vs State Of Up And 2 Others on 26 February, 2024
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:34809-DB Court No. - 43 Case :- CRIMINAL MISC. WRIT PETITION No. - 2276 of 2024 Petitioner :- Dayashankar Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Ajay Tripathi,Surya Prakash Pandey Counsel for Respondent :- G.A. Hon'ble Siddhartha Varma,J.
Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Ajay Tripathi, learned counsel for the petitioner and Sri Amit Sinha, learned A.G.A. for the State.
2. The present writ petition has been filed under Article 226 of the Constitution of India. The petitioner has challenged the FIR dated 02.02.2021, lodged by respondent No.3 in Case Crime No.09 of 2021, under Section 174A IPC, P.S. Pahari, District Chitrakoot.
3. The factual matrix of the case as discerned from the record is that FIR was lodged at the instance of informant Dev Saran Yadav, on 29.12.2019 at 09:39 hours, at P.S. Pahari, District Chitrakoot, against Radhey Krishna, Dayashankar and four others with regard to incident dated 23.12.2019 under Section 147, 148, 149, 392, 354, 323, 504 and 506 IPC. Thus as the present petitioner was also a named accused in said FIR, the police investigated the case and filed chargesheet against the named accused persons in the said offence. The petitioner Dayashankar was enlarged on bail by order of this Court dated 15.03.2021 passed in Criminal Misc. Bail Application No.11650 of 2021. The learned Magistrate took cognizance of the offence on the basis of charge-sheet dated 02.12.2021. The petitioner failed to appear before the court during trial and coercive process, bailable warrant, non-bailable warrant and process under Section 82 Cr.P.C. were issued against him at the instance of Investigating Officer and the case was registered under Section 174A IPC against the petitioner, vide Case Crime No. 09 of 2021 on 02.02.2021, wherein it is alleged that accused Dayashankar has been absconding, whereas he is named accused in the Case Crime No.229 of 2019, the process under Section 82 Cr.P.C. was issued on 10.02.2020, which is duly served, but even after service of process and lapse of long time he neither appeared before the court nor could be apprehended by police. Therefore, the act of said accused goes to purview of Section 174A IPC.
4. Learned counsel for the petitioner submits that due to COVID-19 Pandemic, the nation wide lock down in the country was imposed resulting in the non-functioning of courts in a proper manner and various orders were passed by this Court as well as Hon'ble Supreme Court for exempting appearance of the accused persons in court proceedings during pandemic period. In fact the petitioner was not absconding deliberately, but it happened because he was oblivious about his incrimination. As soon as he was aware about this case, he immediately started pursuing legal remedies available to him, but the present prosecution under Section 174A IPC has been initiated against him in the meanwhile, in violation of mandatory provisions of Section 195 Cr.P.C.. Learned counsel has further submitted that as per section 195(1)(a) cognizance of any offence punishable under Section 172 to 188 IPC, could not be taken by the court only upon the complaint in writing of the public servant concerned or his administrative superior. However, in the present in the present case the F.I.R. had been lodged by the Investigating Officer and even charge sheet of the same had been filed, which cannot be termed as "complaint" as per Section 2(d) of Cr.P.C.
5. In support of his contention, learned counsel for the petitioners has relied upon the judgement of Punjab and Haryana High Court delivered in Pradeep Kumar vs. State of Punjab and another; CRM-M-41656-2023 (O&M), decided on 23.8.2023. In that judgment, the Punjab and Haryana High Court observed that cognizance u/s 174-A cannot be taken except on the basis of a formal written complaint as required u/s 195 Cr.P.C.
6. Learned counsel for the petitioner also placed reliance on additional reported judgment of this Court in Criminal Misc. Writ Petition No. 17560 of 2023 Sumit and another Vs. State of U.P. and two others, wherein this Court after considering the submissions of learned counsel for the parties and analyzing the statutory law on the subject particularly Section 195 Cr.P.C. , Section 174A IPC and Section 2(c) and 2(d) Cr.P.C. in the light of judgments cited at the bar concluded that if the Court itself cannot take cognizance of the offence under Section 174A IPC on the basis of police report, then lodge the FIR under Section 174A Cr.P.C. is futile, and will be against the provisions of Section 195(1)(a) Cr.P.C.. Therefore, the proceedings under Section 174A IPC can be initiated only on the basis of written complaint of the court, which had initiated proceedings under Section 82 Cr.P.C. against the accused and FIR is barred by Section 195(1)(a) Cr.P.C.
7. This Court also held in a Single Bench Judgment of Allahabad High Court in Moti Singh Sikarwar Vs. State of U.P. and others in Application under Section 482 No.31819 of 2015 (MANU/UP/2481/2016) that he dated 04.01.2012 had not laid down the correct law regarding interpretation of Section 174A IPC read with Section 195(1)(a) Cr.P.C. Consequently, the FIR dated 17.07.2023 lodged by respondent No.3, in Case Crime No.162 of 2023, under Section 174A IPC, at P.S. Lodha, District Aligarh was quashed. However, it was left open to concerned court to file a written complaint against the petitioner under Section 174A IPC as well as Section 195(1)(a) Cr.P.C., if there was no legal impediment and with these observations this Court had allowed the writ petition.
8. Per contra, learned A.G.A. has submitted that Section 174-A I.P.C. was introduced by way of amendment in Cr.P.C. in 2005 without making any amendment in Section 195 Cr.P.C. It is further submitted that all the offences which are mentioned u/s 195 Cr.P.C. i.e. from Section 172 to 188 I.P.C. are non-cognizable offences for which bar has been created for taking cognizance except on a complaint. However, Section 174-A I.P.C. is a cognizable offence, therefore, bar prescribed in Section 195 Cr.P.C. does not apply for offence u/s 174-A I.P.C. It is lastly submitted by learned A.G.A. that had the legislature intended to include Section 174-A I.P.C in the category of cases mentioned in Section 195(1)(a) Cr.P.C., then legislature would have amended the provision of Section 195 Cr.P.C. so as to include Section 174-A I.P.C.
9. In support of his contention, learned A.G.A. has relied upon the judgement of the Apex Court in Jayant and others vs. State of Madhya Pradesh and others; Criminal Appeal No. 824-825 of 2020, decided on 3.12.2020 (MANU/SC/0912/2020); the judgement in the case of Pradeep S. Wodeyar vs. State of Karnataka; Criminal Appeal Nos. 1288-1289-1290 of 2021, reported in 2021 0 Supreme (SC) 853 and also the judgement of Delhi High Court in Maneesh Goomer vs. State, Criminal M.C. No. 4208 of 2011, decided on 4.1.2012 and judgement of Allahabad High Court in the case of Moti Singh Sirkarwar vs. State of U.P. and others in Application u/s 482 No. 31819 of 2015 (MANU/UP/2481/2016).
10. The Division Bench of this Court in Sumit and another Vs. State of U.P. and two others (supra) observed as under:
"8. Before dealing with the contention of learned counsel for the petitioners that the F.I.R. u/s 174-A I.P.C. is barred by Section 195 Cr.P.C., it will be appropriate to discuss the legal provision, involved in the present case. Section 195 Cr.P.C. which prohibits the Court from taking cognizance of any offence punishable u/s 172 to 188 I.P.C., is being quoted 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."
9. From perusal of Section 195(1)(a)(i) Cr.P.C., it is clear that the offences for which there is prohibition on court to take cognizance are non-cognizable offences from Section 172 to 187 I.P.C. while Section 188 I.P.C. is mentioned as cognizable offence under First Schedule of Cr.P.C. The definition of "cognizable offences" is provided u/s 2(c) Cr.P.C. which is being quoted as under:
"2(c). "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant."
10. Therefore, it is clear that in cognizable offences, police can arrest the accused without warrant. It is also clear from perusal of Section 195 Cr.P.C. that offences, punishable u/s 172 to 188 I.P.C. are cognizable by the court only when a complaint in writing is filed by public servant concerned or his subordinate. As per Section 21 I.P.C., "public servant" includes every judge, including any person empowered by law to discharge any adjudicatory function. Therefore, the Magistrate who issues proceedings u/s 82 Cr.P.C. will be deemed to be public servant within the meaning of Section 195 Cr.P.C. The word "complaint" referred in Section 195 Cr.P.C. is defined u/s 2(d) Cr.P.C. which is being quoted below:
"2(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 complainant."
11. From perusal of Section 2(d) Cr.P.C., it is clear that though the complaint does not include police report but the explanation of Section 2(d) Cr.P.C. also provides that if after investigation of a case a police report is submitted by the police officer, regarding non-cognizable offence then same shall also be deemed to be "complaint". Therefore, apart from making allegation to Magistrate for taking action against a person who has committed an offence but also the police report/charge sheet of non-cognizable offence will also be deemed to be "complaint". From this fact, it is clear that police report of cognizable offence cannot be treated as a complaint by any stretch of imagination.
12. Section 174-A I.P.C. was inserted after Section 174 I.P.C. though Section 44(b) of the Code of Criminal Procedure (Amendment) Act, 2005 and by Section 42(c) of this amendment Act, Section 174-A I.P.C. was also included in the First Schedule of Cr.P.C. after the entry relating to Section 174 I.P.C. Sections 42(c) and 44(b) of the Code of Criminal Procedure (Amendment) Act, 2005 are being quoted as under:-
"42(c). after the entries relating to section 174, the following entries shall be inserted,
1.
2.
3.
4.
5.
6. "174A"
Failure to appear at specified place and specified time as required by a proclamation published under sub-section (1) of Section 82 of this Code Imprisonment for 3 years, or with as fine, or with both Cognizable Non-bailable Magistrate of the first class.
In a case where declaration has been made under sub-section (4) of section 82 of this Code pronouncing a person as proclaimed offender Imprisonment for 7 years and fine.
Ditto Ditto Ditto"
44(b). after section 174, the following section shall be inserted, namely:-
"174A. Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973, shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
13. After insertion of Section 174-A in I.P.C. as well as in First Schedule of Cr.P.C., further amendment was also made in the year 2006 in Section 195(1)(b) Cr.P.C., but no amendment was made in Section 195(1)(a)(i) Cr.P.C. Therefore, at the time of inserting Section 174-A in I.P.C. as well as in First Schedule of Cr.P.C. after Section 174, legislature was well aware about the category of offences u/s 195(1)(a)(i) Cr.P.C. and for this reason, while making amendment in Section 195(1)(b) Cr.P.C. in 2006, Section 195(1)(a)(i) Cr.P.C. was kept untouched knowingly by the legislature. The above position clearly reveals that while inserting Section 174-A I.P.C., legislature was well aware that in Section 195(1)(a)(i) Cr.P.C., apart from Section 188 I.P.C., one more cognizable offence i.e. 174-A I.P.C. is being inserted for providing the bar of cognizance on the part of court for offences mentioned in Section 195(1)(a)(i) Cr.P.C., except on the complaint.
19. From perusal of aforesaid observations of Single Benches of Allahabad High Court as well as Delhi High Court, it is clear that the very basis of interpretation that Section 174-A I.P.C. being cognizable offence cannot be read as a section to be included in the category of cases mentioned in Section 195(1)(a)(i) Cr.P.C. is itself incorrect and does not lay down correct law. So far as the judgement of Apex Court in Jayant vs. State of Madhya Pradesh (supra) as well as Pradeep S. Wodeyar (supra) are concerned, in both the judgements controversy was entirely different and the Hon'ble Apex Court did not hold that Section 174-A I.P.C. is not part of Section 195(1)(a)(i) Cr.P.C.
20. In the case of Jayant vs. State of Madhya Pradesh (supra), the issue was regarding registration of F.I.R. under Mines and Minerals Act, 1957 as well as offence u/s 379, 414 I.P.C. As there is a bar u/s 22 of Mines and Minerals Act which provides that cognizance of the offence under Mines and Minerals Act will not be taken by the Court except upon a complaint by an authorized person. Therefore, Hon'ble Apex Court observed that apart from offences under Mines and Minerals Act, offences under I.P.C. have also been invoked, therefore, bar of Section 22 of Mines and Minerals Act will not be applicable. It was further observed that after completion of investigation the Magistrate will take cognizance of the offence under I.P.C. but the cognizance of offence under Mines and Minerals Act will be taken on the basis of complaint. Paragraph 13 of the of Jayant vs. State of Madhya Pradesh (supra) is being quoted as under:-
"13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-a-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:
i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In-charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;
ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;
iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and
iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In-charge of the police tation/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.
v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section 1 of Section 23A, considering sub-section 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub-section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."
21. However, in the present case the petitioners are charged for the offence u/s 174-A I.P.C. only, cognizance of which is barred u/s 195 Cr.P.C. Therefore, the controversy in the present case is totally different from that of the judgement relied upon by learned A.G.A. Similarly, in the judgement of Pradeep S. Wodeyar (supra), relied upon by learned A.G.A., the controversy was regarding irregularity of the cognizance, therefore, controversy in that case is also different from the present one.
22. It is clearly established that Section 174-A I.P.C. was inserted by way of amendment in 2005 between Sections 172 to 188, therefore, it is clear that Section 174-A I.P.C. is part of the offences mentioned in Section 195(1)(a)(i) Cr.P.C. for which court is barred from taking cognizance except upon a complaint by the court.
11. In view of the foregoing discussions, we are of the considered view that the present case is squarely covered by aforesaid judgment of this Court and ratio of such case is applicable, on the facts of the present case also. Thus the FIR dated 02.02.2021 lodged at the instance of respondent No.3 in Case Crime No.09 of 2021, under Section 174A IPC, P.S. Pahari, District Chitrakoot is hereby quashed. However, it is open for the court concerned to file written complaint against the petitioner under Section 174A IPC as provided in Section 195(1)(a) Cr.P.C., if there is not legal impediment.
12. With the aforesaid observation, the writ petition is allowed.
Order Date :- 26.2.2024 Ashish/-