Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Baladeen Kushwaha vs The State Of Madhya Pradesh on 20 February, 2017

                                                              1                     Cr.R.No.735/2016




          IN THE HIGH COURT OF MADHYA PRADESH
               PRINCIPAL SEAT AT JABALPUR

                                       Cr.R.No.735/2016

                              Baladeen Kushwaha and another
                                            Vs.
                                     The State of M.P.

Present:             Hon'ble Shri Justice C.V. Sirpurkar
..................................................................................................................
          Shri Anoop Kumar Saxena, counsel for the petitioners.
          Shri S.P. Chadar, panel lawyer for the respondent/State.
................................................................................................................
                                               ORDER

(20-2-2017)

1. This criminal revision is directed against order dated 4.2.2016 passed by the Court of Additional Chief Judicial Magistrate, Nowgaon, District Chhatarpur in Criminal Complaint Case No.74/2012, whereby a charge under Section 182 of the I.P.C. was framed against the petitioners/accused persons Baladeen Kushwaha and Maheshchandra Tiwari.

2. The facts giving rise to this criminal revision may briefly be stated thus: One Brij Lal was tried by Court of Additional Sessions Judge, Nowgaon, under Section 302 of the I.P.C. for murder of his wife Undi. After the trial, he was acquitted of the charge by judgment dated 17.2.2006 passed in Session Trial No.163/2005; however, in paragraph No.15 of the judgment, learned Additional Sessions Judge observed that the petitioners Baladeen Kushwaha and Maheshchandra Tiwari had fabricated false evidence against the accused Brij Lal 2 Cr.R.No.735/2016 regarding the murder of his wife; therefore, the prosecution was directed to prosecute the petitioners for offence punishable under Sections 182 and 211 of the I.P.C. No action was taken on aforesaid direction till 7.6.2010. On that date, one Neeraj Kumar Dwivedi, who was Sarpanch of the village, reminded the SHO of P.S. Nowgaon District Chhattarpur regarding the direction dated 17.2.2006 made by learned Additional Sessions Judge. His statement was recorded by the Head Constable on 7.6.2010. Consequently, the S.H.O. of Police Station Nowgaon, filed an Istagasa No. 1 of 2010 in the Court of Additional Chief Judicial Magistrate, Nowgaon, under Sections 182 and 211 of the I.P.C. against the petitioners Baladeen and Maheshchandra. The Istagasa was registered as Criminal Case No.74/2012. The case was committed to the Court of Sessions by order dated 29.12.2011; however, by order dated 29.2.2012 passed learned Additional Sessions Judge, in Sessions Trail No.4/2012, it was held that since the complaint for the offence punishable under Section 211 of the I.P.C was not made by the concerning Court in accordance with Section 195 (1) (b) (i) of the Code of Criminal Procedure, the Court could not proceed with the trial of that offence. Since, the offence under Section 182 of the I.P.C. could be tried by the Judicial Magistrate First Class, the case was remitted back to the Judicial Magistrate First Class for disposal in accordance with law. Subsequently, Additional Chief Judicial Magistrate by his order dated 4.2.2016, framed 3 Cr.R.No.735/2016 the charge against the petitioner under Section 182 of the I.P.C.

3. The impugned order has been challenged on behalf of the petitioners mainly on the following two counts:

(I) As per Section 195 (1) (a) (i) of Cr.P.C., no Court shall take cognizance of any offence punishable under Section 172 to 188 (both inclusive) of the I.P.C except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. On the basis of aforesaid bar, it has been contended that the Istegasa in the present case was filed on a report made by one Neeraj Dwivedi who is complete stranger to the case; as such, the cognizance of the offence under Section 182 of the I.P.C. could not have been taken by the Court.

(II) The offence under Section 182 of the I.P.C. is punishable with imprisonment of either description for a term which may extent to six months or with fine which may extent to 1000/-

Rupees or with both. As such, by virtue of Section 468 (2) (b) of the I.P.C, the cognizance of offence is barred by limitation.

4. So far as the first objection is concerned, it may be noted that the allegedly false written report on which the FIR was registered, marg intimation and the statement under Section 161 of the Cr.P.C. were made by the petitioner Baladeen to SHO, Police Station, Nowgaon. Though, aforesaid Neeraj Dwivedi made a statement to the Head Constable of the police station reminding it of the directions of the Court, the cognizance was not taken by the Court on aforesaid statement.

The cognizance was taken on the basis of the Istegasa dated 15.6.2010 filed before the Court of Judicial Magistrate First Class by S.H.O., Police Station Nowgaon. Thus, the Istegasa on the basis on which the cognizance was taken, was filed by the same public servant to whom allegedly false report was made. Thus, it cannot be said that the provisions of Section 195(1) (b) (i) of the Cr.P.C. was not followed in the case.

5. However, the argument regarding limitation under Section 468 (2) (b) of Cr.P.C., must be accepted. The false report was made sometime in the year 2005. The court recorded a finding that the report was false on 17.2.2006. The offence punishable under Section 182 of the I.P.C. is punishable with imprisonment for a term which may extent to one year. As such, in view of Section 467 (2) (b) of the Cr.P.C., the cognizance of such an offence could have been taken by the Court only within one year. Thus, the complaint made by the public servant concerned ought to have been filed within one year from 17.2.2006 but it was filed as late as on 15.6.2010. No application under Section 473 of the Cr.P.C. for condonation of delay was made. Even otherwise there is no reason for condoning such delay. Thus, there is no manner of doubt that the complaint was hopelessly time barred as far as Section 182 of the I.P.C. was concerned; therefore, the trial Court should not have framed a charge for that offence.In aforesaid view of the matter, the impugned order is not sustainable in the eyes of law.

6. In the result this criminal revision succeeds. The impugned order 4.2.2016 passed by the learned Additional Chief Judicial Magistrate, Nowgaon in criminal complaint case No.74/2012 framing charge against the petitioners under section 182 of the Indian Penal Code is set aside and the petitioners stand discharged in the case.

{C.V. Sirpurkar} Judge ahd IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Cr.R.No.735/2016 Baladeen Kushwaha and another Vs. The State of M.P. ORDER Post for : 20.02.2017 (C.V.Sirpurkar) Judge