Chattisgarh High Court
Mithlesh Pandeya vs State Of Chhattisgarh on 31 August, 2023
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 259 of 2023
Order reserved on : 15/06/2023
Order passed on : 31/08/2023
1. Mithlesh Pandeya, S/o Late Vinod Pandeya, Aged About 24
Years, R/o Prabhatnagar Ward No. 23 P.S. Basantpur District
Rajnandgaon Chhattisgarh
2. Aamitya Pansari, S/o Akhilesh Pansari, Aged About 20 Years,
R/o Chaukhadiya Para Ward No. 041 P.S. Basantpur Kotwali
District Rajnandgaon Chhattisgarh.
3. Yuvraj Verma, S/o Gautam Verma, Aged About 22 Years, R/o
Atal Bihari Colony In Front of Kendriya Vidyalaya School, Lalbag
District Rajnandgaon Chhattisgarh
---- Applicants
Versus
State of Chhattisgarh Through P.S. Kotwali, District Rajnandgaon
Chhattisgarh
---- Respondent
For Applicants : Mr. Priyank Rathi, Advocate For State/respondent : Mr. Shivnath Shrivas, P.L. Hon'ble Smt. Justice Rajani Dubey CAV Order
1. Heard on admission.
2. This revision is filed by the applicants against the impugned order dated 10.01.2023 passed by learned 3rd Additional Sessions Judge, Rajnandgaon (C.G.) in Sessions Trial No. 76/2022 whereby the learned trial Court framed the charges against the applicants under Sections 452, 294, 506 part-2 and 195 A of IPC.
23. As per prosecution story, brief facts of the case are that on 09.07.2022 at about 10:00 A.M., the accused persons/applicants went to the house of the complainant and told him for giving evidence in favour of one Munku Nepali @ Nitin Nimbu in one Shubham's murder case and the applicants were ready to give whatever consideration that would be asked and they had similarly given Rs. 4 lacks to one Madhur Meshram. Furthermore these people again on 11.07.2022 came to the house of the complainant and abused him and threatened that if he did not give evidence in favour of Munku Nepali then they would kill him and his family. Thereafter, on the basis of complaint, FIR was lodged against the applicants. After completion of investigation, charge-sheet was filed against the applicants.
4. Learned Additional Sessions Judge by impugned order dated 10.01.2023 framed the charges under Sections 452, 294, 506 part-2 and 195 A of IPC against the applicants. Therefore, the revision is filed by the applicants.
5. Learned counsel for the applicants submits that the applicants have not committed any offence for which they have been charged with and have been falsely implicated in the present case. He further submits that there is no sufficient ingredient to connect the applicants with the aforementioned offence for which they have been charged with. The offence under Section 195A of IPC can only be registered after following the procedure prescribed under Section 195(1)(b)(i) of Cr.P.C. which provides that the Court shall take cognizance of an offence punishable under Sections 193 to 196 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court only on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is sub-ordinate.
6. In the light of Hon'ble Apex Court's decision, a prosecution under Section 195A IPC can be launched by a witness or any other person, only by way of a complaint before a Magistrate and not 3 by way of an FIR before police. Therefore, the impugned order is liable to be set aside and the applicants are entitled to be discharged from all the charges levelled against them.
7. Reliance has been placed on the judgment of Hon'ble Supreme Court in the matter of Bandekar Brothers Private Limited and Another v. Prasad Vassudev Keni and Others in (2020) 20 SCC 1.
8. Learned State counsel supported the impugned order and submitted that the grounds and contentions raised in the instant petition are entirely irrelevant, misconceived and erroneous and do not make out any case for interference by this Court in exercise of its revisional jurisdiction at this stage. Therefore, the instant petition deserves to be dismissed.
9. Heard learned counsel for the parties and perused the material placed on record.
10. From perusal of the record, it is clear from order dated 06.10.2022 that the case was committed to Sessions Judge, Rajnandgaon (C.G.) by Judicial Magistrate First Class, Rajandgaon, District- Rajnandgaon (C.G.). Thereafter, the case was transferred to the Court of third Additional Sessions Judge, Rajnandgaon for its due disposal. It is clear from the order- sheets that that charge-sheet was filed against the applicants/ accused persons under Sections 452, 294, 506 part-2 r/w 34 of IPC. Learned trial Court on 10.01.2023 after hearing the parties framed the charges under Sections 452, 294, 506 part-2 r/w 34 and 195 A of IPC against the applicants.
11.Hon'ble Apex Court in the matter of Bandekar Brothers Private Limited and Another v. Prasad Vassudev Keni and Others in (2020) 20 SCC 1 held in paras 47 and 48 as under:-
47. There is no doubt that realising the difficulties in their way, the appellants suddenly changed course, and applied to the Magistrate vide application dated 09.05.2011 to convert what was a properly drafted application under Section 195 read with section 340 of the CrPC, into a private complaint. A reading of the two complaints leaves no manner of doubt that 4 they have been drafted keeping the ingredients of Sections 191 and 192 of the IPC alone in mind - the only argument from the appellants now being that since certain debit notes were forged prior to their being introduced in the court proceedings, not only would the ratio in Iqbal Singh Marwah 1 apply, but also that the ingredients of the "forgery" sections of the IPC have now been made out. While it is important to bear in mind that in genuine cases where the ingredients of forgery as defined in Section 463 of the IPC have been made out, and that therefore, a private complainant should not be left remediless, yet it is equally important to bear in mind the admonition laid down in an early judgment of this Court. Thus, in Basir-ul- Huq and Ors. v. State of West Bengal (1953) SCR 836, this Court cautioned (at page 846):
"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 servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an 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 of the Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an 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."
48. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 of the CrPC is not attracted, and it is not possible to split them up, the drill of Section 1 Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 5 195(1)(b) of the CrPC must be followed. Thus, in State of Karnataka v. Hemareddy (1981) 2 SCC 185, this Court referred to a judgment of the Madras High Court (Re V.V.L. Narasimhamurthy AIR 1955 Mad 237) and approved its ratio as follows:
"7...In the third case, Somasundaram, J., has observed:
"The main point on which Mr Jayarama Aiyar appearing for the petitioner seeks to quash this committal is that on the facts an offence under Section 193 IPC is disclosed for which the court cannot take cognizance without a complaint by the court as provided under Section 195(1)(b) of the Criminal Procedure Code. The first question which arises for consideration is whether on the facts mentioned in the complaint, an offence under Section 193, IPC is revealed. Section 193 reads as follows:
193. Punishment for false evidence-Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.
"Fabrication of false evidence" is defined in Section 192. The relevant portion of it is:
"Whoever causes any circumstance to exist intending that such circumstance may appear in evidence in a judicial proceeding and that such circumstance may cause any person who in such proceeding is to form an opinion upon the evidence to entertain an erroneous opinion touching any point material to the result of such proceeding is said "to fabricate false evidence".6
The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under Section 193 IPC, i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed will also amount to an offence under Sections 467 and 471 IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)(b), CrPC a complaint may be made only when it is committed by a party to any proceeding in any court.
Mr Jayarama Ayyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)(a), of the Criminal PC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary."
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 Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, 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) of the Code of Criminal Procedure should be upheld."
712. Looking to the above principles laid down by Hon'ble Supreme Court and considering the facts and circumstances of the case, it is clear that no Court shall take cognizance under Section 195A of IPC on police report. Therefore, the applicants are discharged from Section 195A of IPC and learned trial Court shall proceed with the charges under Sections 452, 294, 506 part-2 r/w 34 in accordance with law.
13. Accordingly, the revision is allowed in part at motion stage.
Sd/-
(Rajani Dubey) Judge Ruchi