Madhya Pradesh High Court
Rajesh Pandey vs The State Of Madhya Pradesh on 14 March, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 14 th OF MARCH, 2024
MISC. CRIMINAL CASE No. 16415 of 2014
BETWEEN:-
1. RAJESH PANDEY S/O SHRI RAMSEVAK PANDEY,
AGED ABOUT 35 YEARS, VILL. KHAJRI P.S.
PATHARIA (MADHYA PRADESH)
2. SHIVCHARAN PANDEY S/O SHRI SHANKARILAL
PANDEY, AGED ABOUT 50 YEARS, VILLAGE
KHAJRI, POLICE STATION PATHARIA, DISTT.
DAMOH (MADHYA PRADESH)
3. RAMPRAKASH GAUTAM S/O SHRI RAMDAYAL
GAUTAM, AGED ABOUT 60 YEARS, VILLAGE
PEPAR KHIRAIYA, POLICE STATION PATHARIA
DISTT. DAMOH (MADHYA PRADESH)
.....APPLICANT
(BY SHRI SUYASH MOHAN GURU - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH P.S. PATHARIA
DAMOH (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. SHANTI TIWARI - PANEL LAWYER)
This application coming on for admission this day, the court passed the
following:
ORDER
This petition under Section 482 of Cr.P.C. has been filed by the petitioner challenging the order dated 02/09/2014 passed by 1st Additional Session Judge, District Damoh in Sessions Trial No.180/2013.
2. Learned counsel for the petitioners submits that pertaining to an Signature Not Verified Signed by: ASTHA SEN Signing time: 3/21/2024 1:05:25 PM 2 incident dated 06/06/2013, the complainant/petitioner No.1 Rajesh Pandey lodged an FIR against the accused persons alleging that when the complainant along with petitioner Nos.2 & 3 were going to their house at village Khajri, Patharia, on the way, they were intercepted by 7 to 8 persons who came on two wheeler and fired gun-shot, as a result of which one Ram Kishor was done to death. Upon lodging of FIR, challan was filed and the trial Court passed the judgment of acquittal dated 02/09/2014 while holding that there was failure on the part of the prosecution to establish that the accused persons had committed any offence. The trial Court however, in paragraph 54 of the judgement observed that as the petitioner No.1/complainant, at whose instance, FIR (Exh.P/1) was lodged but facts put-forth in the FIR (Exh. P/1), Marg Intimation (Exh.P/5), Statement given to police (Exh. P/6) were denied by the present petitioners, which resulted into acquittal of the accused persons. The Court, further concluded that as there was denial by the present petitioners in respect of aforesaid Exhibits, it was evident that a false information levelling false allegations was lodged with the police. Thus, the trial Court referred the matter to Superintendent of Police to proceed against the present petitioners in terms of Section 182 and 211 of IPC.
3. It is contended by the counsel that the findings in respect of paragraph 54 of the impugned judgment, are unsustainable inasmuch as, the trial Court was required to appreciate that the cognizance in respect of offence under Section 182 and 211 of IPC cannot be taken, unless a complaint is made by the public servant in accordance with Section 195 of Cr.P.C. It is contended by the counsel that in terms of Section 195(1))(a)(i) of Cr.P.C. and also Section 195 (b)(i) of Cr.P.C., a Court cannot take a cognizance on the complaint in respect of offence under Section 182 and 211 of IPC unless there is a Signature Not Verified Signed by: ASTHA SEN Signing time: 3/21/2024 1:05:25 PM 3 complaint in writing by the Court within whose knowledge an offence against public justice has been committed or by such officer of the Court who may be authorized by the Court in that behalf. In the present case, there is no complaint in terms of Section 195 of Cr.P.C. and resultantly the findings arrived at paragraph 54 of the impugned judgment, deserve to be set aside/quashed.
4. Learned counsel also contends that Section 340 of Cr.P.C. further makes it clear that when the complaint is made to the Court regarding the offence affecting the administration of justice, the Court is required to hold preliminary inquiry and also required to ensure fulfillment of conditions which are mentioned in Section 340(1) of Cr.P.C. In the present case, there is neither compliance of Section 195 of Cr.P.C nor Section 340 of Cr.P.C. Thus placing reliance on the judgment of the Apex Court in the cases of Daulat Ram Vs. State of Punjab reported in AIR 1962 SC 1206, Saloni Arora Vs. State (NCT of Delhi) reported in (2017) 3 SCC 286 and in the decision of this Court in the case of Arvind Kumar Gupta Vs. Omprakash Shivhare reported in 2023 SCC Online 3789, learned counsel submits that paragraph 54 of the impugned judgement deserves to be quashed.
5. Per contra, learned counsel for the State has opposed the prayer while submitting that the Court having found that petitioner No.1 who has lodged the FIR and petitioner Nos.2 & 3 who were with the complainant/petitioner No.1 at the time of incident and had given the statement, initially while supporting the prosecution case but later on, turned hostile. Resultanlty, the trial Court has rightly passed the order and issued direction for action against the present petitioners as per Section 182 and Section 211 of IPC, thus, the present petition is liable to be dismissed.
Signature Not Verified Signed by: ASTHA SEN Signing time: 3/21/2024 1:05:25 PM 46. No other point is pressed or argued by the parties.
7. Heard rival submissions of the parties and perused the record.
8. In the present case, on the basis of FIR lodged by petitioner No.1, a case vide Crime No.181/2013 was registered and a case under Sections 147, 148, 149, 323, 302, 324, 379 of IPC and Section 30 and 25 of the Arms Act were registered against as many as eight accused. The said FIR ensued in conduct of trial and after the trial, the trial Court passed a judgment of acquittal while holding in paragraph 47 that the prosecution failed to prove the charges against the accused persons and resultantly acquitted the accused persons. While passing the impugned judgment, the trial Court in paragraph 54 also observed that as the petitioner No.1 who lodged the FIR (Exh.P/1) and all three petitioners had denied their statements (Exh.P/6) and Marg Intimation (Exh. P/5), concluded that the present petitioners had given false information while levelling the false allegations against the accused persons. Thus, while observing as aforesaid, referred the matter to Superintendent of Police, for taking action against the petitioners under Section 182 and 211 of IPC.
9. Section 182 of IPC provides that whosoever gives false information with intent to cause public servant to use his lawful power to the injury to other person, shall be punished for a term which may extent to 6 months or with fine. Section 211 of IPC stipulates that whoever with intents to cause injury to any person instituted or causes to be instituted any criminal proceedings against that person, or falsely charges any person, he shall be punished with a description which may extent to two years.
10. A perusal of Sections 182 and 211 of IPC reflect that the same pertains to administration of justice. The aforesaid offences, pertain to the Signature Not Verified proceedings before the judicial authority and the offences are treated to be the Signed by: ASTHA SEN Signing time: 3/21/2024 1:05:25 PM 5 offences against the public justice. In order to take cognizance for the offence under Sections 182 and 211 of IPC, the procedure as laid down in Section 195(1)(a)(i) of Cr.P.C and Section 195(1)(b)(i) is required to be adhered to. Section 195(1)(a)(i) of Cr.P.C and Section 195(1)(b)(i) are reproduced herein:
"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 10 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) xxxxx
(iii) xxxxx
(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"
11. As per Section 195(1)(a)(i) of Cr.P.C., cognizance in respect of an offence under Section 182 of IPC and as per Section 195 (1)(b)(i) of Cr.P.C., cognizance of offence under Section 211 of IPC can only be taken on the complaint in writing made by the concerned Court or by such officer of the Court as that Court may authorize in writing in that behalf. Therefore, in order to take action under Section 182 and 211 of IPC against the accused persons, the procedure as laid down under Section 195 of Cr.P.C. is required to be followed.
12. The Apex Court while considering the offences pertaining to perjury held in paragraph 7 in the case of Chajoo Ram Vs. Radhey Shyam and Anr. reported in (1971) 1 SCC 774 as under:
"7. The prosecution for perjury should be sanctioned by courts only in those Signature Not Verified Signed by: ASTHA SEN Signing time: 3/21/2024 1:05:25 PM 6 cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems some- what mechanical and superficial: it does not reflect the requisite judicial deliberation: it seems to have ignored the fact that the appellant was a Panch and authorised to act as such and his explanation was not implausible. The High Court further appears to have failed to give requisite weight to the order of the District Magistrate which was confirmed by the Sessions Judge, in which it was considered inexpedient to initiate prosecution on the charge of alleged false affidavit that the appellant had not acted as Sarpanch during the period of the stay order. The subject-matter of the charge before the District Magistrate was substantially the same as in the present case. Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject-matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against expediency of prosecution. And then by reason of the pendency of these proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially. In view of all these circumstances we are constrained to allow the appeal and set aside the order directing complaint to be filed."
13. The aforesaid law laid down by the Apex Court reflects that the prosecution for perjury should be sanctioned where the perjury appears to be deliberate and the conviction is reasonably probable or likely probable. Thus, Signature Not Verified Signed by: ASTHA SEN Signing time: 3/21/2024 1:05:25 PM 7 keeping in view the aforesaid factors, the law makers have made it mandatory that for the offences pertaining to perjury, the cognizance is required to be taken on the complaint made by the concerned Court. The Apex Court in the case of R. S. Sujatha Vs. State of Karnataka and ors. reported in 2011 (5) SCC 689 held in paragraph 18 as under:
"18. Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed."
14. This aspect was again taken note of by the Apex Court in the case of Narendra Kumar Shrivastava Vs. State of Bihar and Ors. reported in (2019) 3 SCC 318 held in paragraph 17 as under:
"17. Section 340 CrPC makes it clear that a prosecution under this section can be initiated only by the sanction of the court under whose proceedings an offence referred to in Section 195(1)(b) has allegedly been committed. The object of this section is to ascertain whether any offence affecting administration of justice has been committed in relation to any document produced or given in evidence in court during the time when the document or evidence was in custodia legis and whether it is also expedient in the interest of justice to take such action. The court shall not only consider prima facie case but also see whether it is in or against public interest to allow a criminal proceeding to be instituted."
15. The provisions of Section 195 of Cr.P.C. are mandatory as laid down by the Apex Court in the case of C. Muniappan & Ors. Vs. State of Tamilnadu reported in (2010) 9 SCC 567. Therefore, while examining the Signature Not Verified Signed by: ASTHA SEN Signing time: 3/21/2024 1:05:25 PM 8 observation in paragraph 54 of the judgment, if the aforesaid decision of the Apex Court as well as statutory provisions are taken recourse to, it would reveal that the trial Court in paragraph 54 of the judgment directed that the copy of judgement be forwarded to Superintendent of Police to proceed in terms of Section 182 and 211 of IPC against the present petitioners. Forwarding the matter to Superintendent of Police, in the manner in which the same has been done by the trial Court, is impermissible as the cognizance is required to be taken in respect of the aforesaid offences only on a complaint in writing by the Court or by such officer of the Court as the Court may authorize in that behalf or some other Court to which that Court is subordinate. Meaning thereby, no cognizance can be taken by any other mode except the one which is provided under Section 195(1) of Cr.P.C.. Hence, referring the matter to Superintendent of Police, in terms of paragraph 54 of the judgment, was an exercise in futility as in absence of any complaint in writing in terms of Section 195 of Cr.P.C.
16. Resultantly, this Court is of the considered view that paragraph 54 of the judgement is unsustainable and accordingly same stands quashed and remaining judgment shall remain intact.
17. Accordingly, this M.Cr.C stands allowed.
(MANINDER S. BHATTI) JUDGE Astha Signature Not Verified Signed by: ASTHA SEN Signing time: 3/21/2024 1:05:25 PM