Allahabad High Court
Smt. Aruna Kori vs State Of U.P. And Another on 3 December, 2020
Equivalent citations: AIRONLINE 2020 ALL 2534
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 2 Case :- APPLICATION U/S 482 No. - 9961 of 2020 Applicant :- Smt. Aruna Kori Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vijay Singh Gour,Tinku Singh Counsel for Opposite Party :- G.A. And Case :- APPLICATION U/S 482 No. - 31695 of 2019 Applicant :- Puspendra Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vijay Singh Gour,Tinku Singh Counsel for Opposite Party :- G.A. Hon'ble Suneet Kumar,J.
1. Heard Sri Vijay Singh Gour, learned counsel for the applicant, learned Additional Government Advocate (''AGA') for the State and Sri Birendra Singh, learned counsel for opposite party no.3/informant.
2. Learned counsel for the applicant is permitted to make necessary corrections during the course of the day.
3. On the consent of the parties, both the aforesaid applications arising from the same case crime number, based on the same allegations, are being heard and decided together.
4. The instant applications have been filed under Section 482 of Code of Criminal Procedure, 1973 (for short ''Cr.P.C.') assailing the charge-sheet dated 03.03.2017 and the consequential cognizance order dated 19.05.2017, passed by the Judicial Magistrate - I, Kanpur Dehat arising from Case Crime No. 35 of 2017.
5. The facts, briefly stated, is that a first information report (''FIR') being Case Crime No.35 of 2017, under Section 188 I.P.C. and Section 123 (B) (2) of the Representation of People Act, 1951, Police Station - Rasulabad, District - Kanpur Dehat, came to be lodged by opposite party no.2, Pawan Kumar Rawat posted as F.S.T. Magistrate at Assembly Area No.205, Rasulabad, Kanpur Dehat during the Uttar Pradesh Assembly Election.
6. As per the prosecution case, allegation against the applicants is that being a candidate they conducted an election meeting/rally at a premises without taking permission from the concerned Magistrate/Authority. After investigation, the Investigating Officer (''IO') filed a charge-sheet on 03.03.2017, on which the competent court has taken cognizance.
7. It is urged that the court below has mechanically, without application of mind taken cognizance, whereas, the cognizance is barred under Section 195(1)(i) Cr.P.C., wherein, it is categorically mandated that no court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of Indian Penal Code, 1860 (''IPC'), except on a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It is further urged that the expression ''complaint' is defined under sub-section (d) of Section 2 of Cr.P.C., which means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include police report. It is further submitted that no offence has been provided under Section 123(B)(2) of the Representation of People Act, 1951, that has been made punishable under the Indian Penal Code or under the Representation of People Act. The remedy available to the aggrieved candidate is by filing election petition under Section 100 of the Representation of People Act and not by lodging first information report. In this backdrop, it is urged that the entire proceedings pursuant to the charge-sheet and cognizance taken thereon is bad in law.
8. In rebuttal, learned A.G.A. and learned counsel for the first informant have not disputed the facts, it is admitted that the opposite party no.2, the designated Magistrate appointed for the Assembly election had filed an F.I.R. alleging violation of prohibitory orders. It is also admitted that pursuant to the F.I.R., investigation was carried out and charge-sheet came to be filed by the I.O.
9. Rival submissions fall for consideration.
10. Section 195 Cr.P.C. provides for prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Sub-clause(1)(a) of Section 195 Cr.P.C. reads thus:
"(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
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"
11. Section 188 I.P.C. provides for disobedience to order duly promulgated by public servant. Section 188 is extracted:
"188. Disobedience to order duly promulgated by public servant.--Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
12. On bare perusal of the legislative intend provided under Section 195 Cr.P.C., it is explicit that for the offence under Section 188 I.P.C., the prosecution can be initiated only on a complaint filed by the concerned public servant and not by a police report.
13. In the facts of the case at hand, applicants herein, are charged for offence under Section 188 IPC and for no other offence under the IPC. The cognizance taken on the chargesheet would thus be illegal and void in view of Section 195(1)(a)(2) Cr.P.C..
14. In M. S. Ahlawat v. State of Haryana & Anr.1, the Apex 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."
15. In Daulat Ram v. State of Punjab2, the Apex Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance was 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 Court held as under :
"The cognizance of the case was therefore wrongly assumed by the 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......"
16. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance 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.
17. Thus Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. 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, ill-will 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. (vide Govind Mehta v. The State of Bihar3; Patel Laljibhai Somabhai v. The State of Gujarat4; Surjit Singh & Ors. v. Balbir Singh5; State of Punjab v. Raj Singh & Anr6; K. Vengadachalam v. K.C. Palanisamy & Ors.7; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr.8).
18. In the case of State of U. P. vs. Suresh Chandra Srivastava & Ors.9, a bench of three judges of the Supreme Court very succinctly explained that the provisions of Section 195 would affect the offences mentioned therein, and not offences which are separate and distinct from those contained in Section 195 CrPC observing as under;
"The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in section 195, section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of sec. 195 of the Code."
19. In the case at hand the applicants are not charged for any other offence save Section 188 IPC. The complaint was not filed by the concerned Magistrate/Public Servant. The cognizance taken thereon, by the court below is void abinitio being in violation of the mandatory provision-Section 195 Cr.P.C. (Refer: Vraj Pal Singh vs. State of U.P. and another10)
20. Section 123 of the Representation of People Act provides for corrupt practices. Section 123(2) is extracted:
"Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right:"
21. The remedy available for corrupt practice has been provided under Section 100 of the Representation of People Act. The grounds for declaring an election to be void is provided therein. Sub clause (b) provides that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void.
22. The Representation of People Act, and / or the Indian Penal Code do not provide for any punishment for corrupt practices. The remedy available to an aggrieved candidate is to get the election of the returned candidate declared void.
23. In view thereof, the petition succeeds, accordingly, allowed.
24. The proceedings arising from aforesaid Case Crime No.35 of 2017 and the consequential congnizance order is quashed.
Order Date :- 3.12.2020 Atul