Delhi District Court
Cc No.32/08 Dr. R.K. Goyal vs . Smt. Raj @ Neelu Goyal Page No. 1/12 on 19 December, 2011
IN THE COURT OF MS. KIRAN BANSAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATEI
EAST DISTRICT/ KARKARDOOMA COURTS, DELHI
CC No. 32/08
In the matter of:
Dr. R.K. Goyal,
s/o Late Sh. O.P. Goyal,
r/o C4, Anand Vihar,
Delhi92 .......Complainant.
Versus
Smt. Raj @ Neelu Goyal,
w/o Dr. R.K. Goyal,
R/o 60, Aakriti Apartments,
Patparganj,Delhi92 ............Accused.
COMPLAINT U/S 182/193/195 IPC.
JUDGMENT
1. By this judgment I will dispose of the complaint of the complainant u/s 182/193/195 IPC.
CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 1/12
2. The brief facts of the case as per complainant is that on 19.04.2007 at police head quarter IP Estate, New Delhi which was later on marked to SHO, PS Anand Vihar and to EOW Cell for investigation, the accused had furnished false information to public servants, i.e, police officials which she knew and believed to be false and intended thereby that such public servant/police official shall initiate criminal proceeding against the complainant Dr. R.K. Goyal which otherwise they would have not done and they were in knowledge of true state of facts with respect to the said information given in the complainant dated 19.04.2007 and thus thereby committed offence punishable u/s 182/193/195 IPC. Thereafter, pre summoning evidence was led by the complainant and after pre summoning evidence accused was summoned for the punishable offence u/s 182 IPC.
3. Notice u/s 182 IPC was served upon the accused on 08.01.2010 to which she pleaded not guilty and claimed trial and hence the matter was listed for CE.
4. To prove his case, complainant examined Ct. Srinarayan, no. 2341/E, PS Anand Vihar as CW1. He deposed that a complaint dated 21.05.2008 was received in his office on 24.05.2008 which was filed by Dr. R.K. Goyal. He has proved the complaint as Ex CW1/A. He further deposed that complaint was CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 2/12 marked to ASI Arvind Kumar for inquiry.
5. CW2 is HC Sunder Lal, no. 4176/DA,EOW, Crime Branch. He deposed that on 20.04.2007 a complaint is filed by accused Raj @ Neelu Goyal vide number C1394/SO/DCP/EOW and the said complaint was marked to ASI Z.A Khan for inquiry and after competition of the inquiry the complaint was filed on the basis of expert opinion and the allegation leveled by Smt. Raj @ Neelu Goyal could not be substantiated and no cognizable offence was made out. He has proved the record of SI Ajay Shukla ALBR section EOW, Crime Branch, Delhi dated 31.05.2008 along with 38 pages as Ex CW2/A.
6. CW3 is complainant Dr. R.K. Goyal. He deposed that he is a resident of House no. C4, Anand Vihar, Delhi92 and the accused is his wife and residing separately more than 14 years. He further deposed that he had purchased the property in question, i.e, House no. C4, Anand Vihar, Delhi92 on 23.08.1985 from Sh. Hans Raj Arora and a GPA was executed by said Hans Raj Arora in his favour which is Mark A and agreement to sell was executed in the name of his wife, i.e, the present accused Smt. Raj @ Neelu Goyal and later on 20.11.1990 the accused had executed agreement to sell in his favour and on 27.07.1992 the accused had executed an agreement as CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 3/12 well as an affidavit in his favour stating therein that the entire consideration of the aforesaid property was paid by him to Hans Raj Arora and construction was also raised by him in the aforesaid property out of his own funds and sources which are Ex CW3/A and Ex CW3/B respectively (OSR). He further deposed that after that some matrimonial dispute arose between him and the accused Smt. Raj @ Neelu Goyal and she started living separately. He further deposed that she lodged false report against him before various authorities including SHO, PS Anand Vihar, DCP Crime EOW Cell alleging therein that he had forged her signatures and got the property bearing House no. C4, Anand Vihar, Delhi92 in his favour whereas allegations are absolutely false and concocted and the allegation has been alleged malafidely and just to malign his image in the eyes of relatives, friends and other members of the society. He further deposed that on 24.08.2007 during the inquiry it has come on record that the signatures made by the accused on Ex CW3/A and Ex CW 3/B are genuine. He has proved his complaint as Ex CW3/C.
7. Ct. Pappu Sharma, no. 953/East, PS Anand Vihar is CW2 (inadvertently recorded as CW2). He deposed that complaint Ex CW1/A dated 21.05.2008 was received in his office on 25.05.2008 and the same was handed over to ASI Arvind Kumar for investigation. He has proved the photocopy of the CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 4/12 register showing the entry Srl. NO. BH 631/08 along with the final report as Ex CW2/A. Vide order dated16.04.2010, CE was directed to be closed.
8. After the closure of CE, Statement of accused u/s 313 Cr.P.C was recorded on 13.08.2010. She deposed that the allegations against her are wrong and that she was thrown out of his matrimonial home, i.e, House no. C4, Anand Vihar, Delhi92 in the year 1989 on account of matrimonial dispute. She further deposed that thereafter she started living in her parental home i.e C261, Surajmal Vihar, Delhi and that the complainant had sent certain papers to her through one common person on the pretext that they are to be used for some transactions of joint bank account which existed in her name and the complainant jointly. She further deposed that she had signed the papers but she do not know what were those papers. Thereafter, the matter listed for DE.
9. DW1 is Sh. Dinesh Kumar Gaur is the brother of the accused Raj @ Neelu Goyal. He deposed that the property in question, i.e C4, Anand Vihar, Delhi92 was purchased in the name of her sister, i.e, accused Raj @ Neelu Goyal and thereafter in the year 1991 Dr. R.K.Goyal kept a maid servant in the house and differences started between his sister and complainant Dr. R.K. Goyal. He further deposed that Dr. R.K. Goyal got the abovesaid property CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 5/12 transferred in his name by some documents which were not known to him. He further deposed that thereafter her sister left the house of her husband along with her children an has been living in her parental home. He further deposed that in the year 2005 he came to know that her sister had made complaints to the police against her husband with regard to the sale, transfer of the above property by making some documents.
10.Accused examined herself as DW2 and deposed that the property no. C4, Anand Vihar, Delhi92 stands in her name. She further deposed that her husband, i.e, the complainant has submitted fraud documents to the DDA and transferred the property in his own name.
11. Final arguments were heard.
12.I have gone through the documents on record, evidence and submissions forwarded by counsel for complainant, Ld. defence counsel and written submissions.
13.Section 195 Cr.PC reads as under :
Prosecution for contempt of lawful authority of public servants, for CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 6/12 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 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
(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.
Except on the complaint in writing of that Court 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 subordinate.
Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 182 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned to whom false information is furnished. Section 195 Cr.P.C. further bars the court CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 7/12 from taking cognizance of any offence u/s 193 & 195 IPC except on a written complaint by the court concerned. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, illwill or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections, as laid down in various judgments such as Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy Ors., (2005) 7 SCC 352; and CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 8/12 Iqbal Singh Marwah Anr. v. Meenakshi Marwah Anr., AIR 2005 SC 2119.
The test of whether there is evasion or noncompliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basirul Haq; Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik and Ors v. State of Orissa, AIR 1966 SC 1775, the Hon'ble Supreme Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by misdescribing it or by putting a wrong label on it.
14. In M. S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, the Hon'ble Supreme Court considered the matter at length and held as under :
"....Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section."
CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 9/12 In Sachida Nand Singh Anr. Vs. State of Bihar & amp; Anr., (1998) 2 SCC 493, the Hon'ble Supreme Court while dealing with this issue observed as under :
"Section 190 of the Code empowers any magistrate of the first class to take cognizance of any offence upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise."
15. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, the Hon'ble Supreme Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. The Hon'ble Supreme Court held as under :
"The cognizance of the case was therefore wrongly assumed by the CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 10/12 court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside."
Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant who has been furnished with false information with intention to cause such public servant to use his lawful power. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Noncompliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.
In view of the fact that cognizance itself was barred in the present complaint and the trial was void ab initio no need is felt to discuss and appreciate the evidence lead by both the parties.
As the law does not permit taking cognizance of any offence under Section 182 IPC, unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint, i.e, the complaint by the SHO concerned or the IO has ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, the court is of the view that the CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 11/12 trial was void ab initio being without jurisdiction and thus, the complaint of the complainant is dismissed. The accused Raj @ Neelu Goyal has been acquitted of offence u/s 182 IPC. Bail bond stands cancelled. Surety stands discharged. Endorsement, if any, made on any document be cancelled and documents, if any, seized or deposited be released on proper receipt and identification.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 19th DAY OF DECEMBER, 2011.
(KIRAN BANSAL) ADDL.CHIEF METROPOLITAN MAGISTRATE I:
EAST/KARKARDOOMA COURTS, DELHI CC no.32/08 Dr. R.K. Goyal Vs. Smt. Raj @ Neelu Goyal Page no. 12/12