Jammu & Kashmir High Court - Srinagar Bench
Abdul Satar Ganai vs Roshan Lal Koul And Others on 4 October, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRR No. 21/2017
Date of Order: 04.10.2018
Abdul Satar Ganai
Vs.
Roshan Lal Koul and Others
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr. Z. A. Shah, Sr. Advocate with Mr A. Hanan, Advocate
For respondent(s): None.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. By the impugned order dated 12th April, 2017, passed by the learned Judicial Magistrate 1st Class, Kulgam in File No. 04/A, the complaint/application of the petitioner came to be dismissed. Aggrieved by this order, the petitioner has filed the instant petition before this Court on the grounds, inter alia, that he had filed a complaint before the learned Chief Judicial Magistrate, Kulgam, whereby he brought it to his knowledge that the respondents have committed the offences in relation to the proceedings filed in the shape of a charge-sheet before the Court. The offences mentioned in the complaint fall within the ambit and scope of Section 195 RPC, which bars the Court to take cognizance except on the complaint in writing of that Court or by such officer of the Court as the Court may authorize in writing in this behalf or of some other Court to which the Court is subordinate. The procedure in cases mentioned in Section 195 Cr. CRR No. 21/2017 Page 1 of 8 PC, is provided under Section 476 of Cr. PC, wherein it has been provided that when any Court whether on an application made to it in this behalf or otherwise on his opinion finds that it is in the interest of justice that an inquiry should be made in any offence referred to in Section 195 (1) (b) or Clause (c), which appears to have been committed in or in relation to the proceedings in that Court such Court may, after such preliminary inquiry, if any, as it thinks necessary record a finding to that effect and make a complaint therein in writing signed by the Presiding Officer of the Court and so, forward the same to the Magistrate of the 1st Class having jurisdiction and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary to do so, send the accused in custody, such Magistrate Court may appoint any person to appear and give evidence before such Magistrate. In the instant case, after being discharged from the charge-sheet filed by the respondent No. 4, which was filed in connivance with the other respondents to frame the petitioner, who was the complainant in the case filed an application before the learned Chief Judicial Magistrate, bringing into his knowledge about the malicious act as well as illegality committed by the respondents. However, the Chief Judicial Magistrate, Kulgam, without following the aforesaid procedure provided in the Cr. PC assigned the same to the Judicial Magistrate 1st Class and the Judicial Magistrate without considering the aforesaid provision of law and without seeking a report of inquiry or any CRR No. 21/2017 Page 2 of 8 other thing in writing from the Chief Judicial Magistrate dismissed the complaint of the petitioner.
2. It is further submitted that the learned Judicial Magistrate 1 st Class, Kulgam, has observed in the impugned order dated 12 th April, 2017, that a police officer filing a charge sheet does not make any statement on oath nor is bound by any express provision of law to state the truth though being a public servant, he is obliged to act in good faith. The statement made by a person before any Court or otherwise must be truthful in accordance with the provisions of law and the declaration made therein must satisfy the requirement of law. The police officer, while filling the charge sheet has to first satisfy its conscience about the truthfulness or otherwise of the charge sheet. He could not have roped in an innocent person, that is, the complainant in the case. The police officer has to state truth while filing the charge sheet and if he files a false charge-sheet in league with other persons to involve an innocent person in a row, he definitely deserves to be dealt with in accordance with the provisions of law prescribed in the RPC as well as in terms of the Criminal Procedure Code.
3. It is further submitted that the learned Magistrate has also observed in the impugned order that the complainant alleging commission of offence under Sections 193, 195, 195-A & 196 RPC in or in relation to any proceedings in any Court is maintainable at the instance of that Court or by an officer of that Court authorized in writing for that purpose or some other Court to which the Court is subordinate. The learned Magistrate has further observed in the impugned CRR No. 21/2017 Page 3 of 8 judgment that the offences in the present case are not alleged to have been committed in any proceedings in any Court. So in view of the bar created in Section 195 of Cr. PC, the present complaint is not maintainable as the same has not been filed by the person contemplated under Section 195 Cr. PC. The petitioner after being discharged from the charges levelled against him by the learned Chief Judicial Magistrate, rightly filed an application/complaint before him to inquire into the matter in terms of Section 476 Cr. PC, against the accused persons. The application was rightly filed by the petitioner before the appropriate Court, however, the said fact was not observed by the learned Magistrate while dismissing the application filed by the petitioner. It is not the case of the petitioner that the complaint has been filed before the learned Judicial Magistrate directly, but it was assigned to him by the learned Chief Judicial Magistrate and at most to clear the defect, the learned Magistrate should have referred it back to the Chief Judicial Magistrate for inquiry into the matter in terms of Section 476 Cr. PC. However, the learned Judicial Magistrate, took it upon him and dismissed the complaint/application of the petitioner on wrong premises. There was no bar for the learned Judicial Magistrate to proceed against the respondents insofar as it related to Section 420 RPC, moreso, when Sections 172 to 188, were not applicable to the case of the petitioner.
4. It is further submitted that the learned Judicial Magistrate without applying his judicial mind passed the impugned order dated 12 th April of 2017 and without looking into whether the said complaint discloses offences committed by the CRR No. 21/2017 Page 4 of 8 respondents in terms of Section 420 RPC and other allied provisions, dismissed the complaint without deliberating upon the same and without mentioning the nuances of Section 420 RPC in the impugned judgment. The learned Magistrate in a very slipshod and cursory manner dismissed the compliant of the petitioner, which has caused serious miscarriage of justice. The impugned judgment passed by the learned Judicial Magistrate 1st Class, Kulgam, is an abuse of the process of law and the same has caused miscarriage of justice. The complaint has been dismissed without seeing the seriousness of the offences committed by the respondents.
5. Heard and considered.
6. In his complaint before the Court of the learned Judicial Magistrate 1st Class, Kulgam, which came to be decided and dismissed by an order dated 12th April, 2017. The petitioner had sought the prosecution of the accused for the commission of the offences punishable under sections 193, 195, 195-A, 196 & 420 RPC. The learned Magistrate dismissed the complaint, mainly on the ground that the complainant has alleged the commission of the offences under Sections 193, 195, 195-A & 196 RPC, in his complaint and such proceedings can only be initiated at the instance of the Court or by an officer of the Court as the Court may authorized in writing in this behalf or some other Court to which the Court is subordinate. He has also contended that after taking an overall view of the complaint, there is no material on record to proceed against the accused- respondents for the commission of the offence under Section 420 RPC and CRR No. 21/2017 Page 5 of 8 hence the complaint is dismissed in view of the provisions incorporated in Section 203 Cr. PC. In order to understand the import of law applied by the learned Magistrate to the instant case, Section 195 Cr. PC, running under the subject "No incognizance" requires to be analyzed and it reads as under:
"None cognizance:- (1) No Court shall take cognizance:-
(a) Prosecution for contempt of lawful authority servants of any offence punishable under Sections 172 to 188 of the Ranbir Panel Code, except on a complaint in writing of public servant concerned , or of some other public servant to whom he is subordinate;
(b) Prosecution for certain offences against public justice of any offence punishable under any of the following Sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offences is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate, or
(c) Prosecution for certain offences relating to documents given in evidence of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
2. In clauses (b) and (c) of sub-Section (1), the term "Court" includes a Civil Revenue or Criminal Court, but does not include a Registrar or Sub Registrar under the Registration Act, 1977.
..............."
7. The object and scope of Section 195 Cr. PC, has been laid down in various judicial enunciations, which provide that it is to protect persons from being needlessly harassed by vexatious prosecutions in retaliation. It is a check to protect innocent persons from criminal prosecution which may be actuated by malice or ill-will. The object of the Section is to stop private person from obtaining sanction as to means of wreaking vengeance and to give the Court full discretion in deciding whether any prosecution is necessary or not. Sanction to CRR No. 21/2017 Page 6 of 8 prosecute cannot now be granted to a private person. Private prosecution, in every case, is more likely to be inspired by the avenging spirit and indeed, in a system of criminal administration, where the party wronged, rather than a public official, is given the conduct of prosecution, the vice of over-eagerness to obtain convictions predominates. The evil may not be avoided altogether. But at least in the case of offences where the act to a great extent affects the dignity and prestige of the Courts concerned, it is deemed inexpedient to allow such acts to be the sport of personal passions."
8. The plain reading of Sub Section (b) of Section 195 Cr. PC, makes it clear that the prosecution for the offences under Sections 193, 195, 195-A & 196 RPC, when such offences are alleged to have been committed in, relation to, any proceedings of the Court, cannot be initiated except on the complaint in writing of that Court or by such Officer of the Court as the Court may authorize in writing in this behalf or of some other Court to which the Court is subordinate. The responsibility of prosecution under Sub Section (b) of Section 195 rests upon the Court or by such Officer of the Court as the Court may authorize in writing in this behalf or of some other Courts to which the Court is subordinate. It cannot be used as a tool by a private person to wreck vengeance against the public servants. Therefore, the learned trial Court has rightly stated that in view of the express bar contained in Section 195 Cr. PC, the complaint is not maintainable.
CRR No. 21/2017 Page 7 of 8
9. The law laid down in the case of Basappa Suneban v. Nigangouda, reported in 1978 Cr. LJ 460 Karnatka, is that where the offences were inseparable and were based on identical facts and circumstances complaint by a Court being necessary in respect of one, a trial should not be proceeded in the absence of such complaint as was required by Section 195 of the Code. Again in the case of Padohi Ram v. State of UP, reported in 1990 Cr. LJ 495 (Allahabad), it is held that where no distinct and separate offences under Sections 419 & 420 IPC are made out other than the one under this section, no cognizance can be taken.
10. In view of the preceding analysis, the learned trial Court has not committed any error in the order impugned herein this petition, as a corollary to which, the petition of the petitioner entails dismissal and, is accordingly, dismissed.
(M. K. Hanjura) Judge Srinagar 04.10.2018 "Manzoor"
CRR No. 21/2017 Page 8 of 8