Rajasthan High Court - Jodhpur
Datar Singh & Anr vs State on 18 August, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 348 / 2007
1. Datar Singh s/o Badri Singh, b/c Rajput, r/o Teja Ji Chowk,
Pratapnagar, District Chittorgarh.
2. Arjun Singh s/o Inder Singh, b/c Rajput, r/o Kotada, Tehsil Shiv,
District Barmer (presently Addl.Superintendent of Police, CID
(CB), Jaisalmer).
----Petitioner
Versus
The State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.Vineet Jain with Mr.K.S.Lodha
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 16/08/2017 Pronounced on 18/08/2017
1. This criminal misc. petition under Section 482 Cr.P.C.
has been preferred against the order dated 10.02.1999 passed by learned Judicial Magistrate, Rashmi, District Chittorgarh in Criminal Case No.31/99 (State Vs. Datar Singh & Ors.), whereby the learned court below has taken cognizance against the petitioners for the offences under Sections 167, 193 and 196 IPC.
2. The charge-sheet was filed against the present petitioners for the offences under Sections 451, 323, 354 read with Section 34 IPC and the charges were read over.
3. On 27.07.1998, an FIR was lodged, whereby it was alleged by one Bhagwana that his daughter, Meera was assaulted (2 of 10) [CRLMP-348/2007] by Nathu, Mangu, Madhu and Shanker, who also outraged her modesty. The FIR was registered for the offences under Sections 451, 323 and 354/34 IPC and the investigation was initiated by ASI, Mitthu Singh. Petitioner No.1-Datar Singh, was the SHO of the Police Station, Rashmi and petitioner No.2-Arjun Singh was the Deputy Superintendent of Police, Kapasan, and on the statement of ASI Mitthu Singh, the impugned order dated 10.02.1999 was passed, taking cognizance against the petitioners purportedly under Section 190(a)(c) for the offences under Sections 167, 193 and 196 IPC, which have been found to be made out.
4. Learned counsel for the petitioners argued that there was no material on record to show that the petitioners had, in any way, influenced the investigation. The ingredients of Sections 167, 193 and 196 IPC were also not made out in the present set of allegations. The petitioners had also not created, prepared or framed any document, because they had not investigated the case at all.
5. Learned counsel for the petitioners also argued that similarly, for the offence under Section 193 IPC, the basic ingredient is false evidence, and in this case, the petitioners had not given any evidence, which was false, so as to attract the proceedings under Section 196 IPC.
6. Learned counsel for the petitioners further argued that there was no sanction under Section 197 Cr.P.C. to prosecute the present petitioners, who were undoubtedly public servants and discharging their public duties.
(3 of 10) [CRLMP-348/2007]
7. Learned counsel for the petitioners also argued that the provisions contained in Section 195 Cr.P.C. provided that no court shall take cognizance for the offences under Sections 193, 194, 195 and 196 IPC without there being a complaint of the court, and admittedly, in this case, there was no complaint from the court.
8. In support of his submissions, learned counsel for the petitioners has placed reliance on the precedent law laid down by the Hon'ble Supreme Court in Iqbal Singh Marwah & Anr. Vs. Meenakshi Marwah & Anr., reported in 2005 SCC (Cri) 1101, relevant paras of which read as under:-
"21. Section 190 Cr.P.C. provides that a Magistrate may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 195 Cr.P.C. is a sort of exception to this general provision and creates an embargo upon the power of the Court to take cognizance of certain types of offences enumerated therein. The procedure for filing a complaint by the Court as contemplated by Section 195(1) Cr.P.C. is given in Section 340 Cr.P.C. and sub- section (1) and (2) thereof are being reproduced below :
"340. Procedure in cases mentioned in Section 195 - (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a (4 of 10) [CRLMP-348/2007] document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary:
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-
section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195."
22. Section 341 Cr.P.C. provides for an appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195, against the order refusing to make a complaint or against an order directing filing of a complaint and in such appeal the superior Court may direct withdrawal of the complaint or making of the complaint. Sub- section (2) of Section 343 lays down that when it is brought to the notice of a Magistrate to whom a complaint has been made under Section 340 or (5 of 10) [CRLMP-348/2007] 341 that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.
23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad (6 of 10) [CRLMP-348/2007] view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.
24. There is another consideration which has to be kept in mind. Sub- section (1) of Section 340 Cr.P.C. contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a Court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate for a which are time consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the Court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as (7 of 10) [CRLMP-348/2007] witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause(b)(ii).
25. An enlarged interpretation to Section 195(1)
(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh, after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would he highly detrimental to the interest of society at large.
26. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from (8 of 10) [CRLMP-348/2007] such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (Third ed.) para 313, the principle has been stated in the following manner:
"The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong."
The learned author has referred to Sheffield City Council v. Yorkshire Water Services Ltd. (1991) 1 WLR 58, where it was held as under :
"Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by judges in developing the common law. '... the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society."
In S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2 All ER 91, while interpreting a provision in the Finance Act, 1972, Lord Denning observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as (9 of 10) [CRLMP-348/2007] to make the section workable. Therefore, in order that a victim of a crime of forgery, namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive interpretation on clause (b)(ii).
9. Learned Public Prosecutor seriously refuted the aforesaid submissions of learned counsel for the petitioners.
10. Heard learned counsel for the parties and perused the record of the case alongwith the precedent law cited at the Bar.
11. On the face of it, it is apparent that the petitioners are government servants, who were actively discharging their public duties, and therefore, came within the purview of protection under Section 197 Cr.P.C. Moreover, the petitioners, as seen from the record, never investigated the case and no complaint was filed against them by the concerned ASI. The ingredients of Section 167, 193 and 196 IPC are apparently missing and there was no such incorrect document, which could attract the provisions of Section 167 IPC, leaving aside framing or preparation of a document. The allegations under Section 193 IPC were not trustworthy. The provisions of Sections 193 and 196 IPC were not made out and the provisions contained in Section 195 Cr.P.C.
created a bar upon the cognizance.
12. In view of the above, since prima facie, this Court is of the opinion that the procedure laid down under Sections 340 and 341 Cr.P.C. was not adopted for the purpose of going ahead with the allegations for the offences under Sections 167, 193 and 196 (10 of 10) [CRLMP-348/2007] IPC, therefore the said offences are not made out against the present petitioners. No document was forged or framed and without any opportunity of hearing, the cognizance was taken only on the statement of ASI Mitthu Singh, whereas the procedure contained in Sections 340 and 341 Cr.P.C. ought to be adhered to, as stated in the precedent law, as cited and quoted hereinabove.
13. In light of the aforesaid discussion as well as the precedent law cited at the Bar, the present misc. petition is allowed and the cognizance order dated 10.02.1999 passed by learned Judicial Magistrate, Rashmi, District Chittorgarh in Criminal Case No.31/99 (State Vs. Datar Singh & Ors.) is quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-