Allahabad High Court
Ramendra Sharma And 2 Others vs State Of U.P. And Another on 27 April, 2022
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 92 Case :- APPLICATION U/S 482 No. - 18403 of 2021 Applicant :- Ramendra Sharma And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohit Singh Counsel for Opposite Party :- G.A. Hon'ble Manish Kumar,J.
1. Heard learned counsel for the parties and perused the record.
2. The present petition under Section 482 Cr.P.C. has been filed with the prayer to allow this application and quash the entire proceedings of Case No.179/2021, arising out of Case Crime No.0312/2020, under section 174-A IPC, P.S. Behjoi, District - Sambhal, pending before the court of learned Chief Judicial Magistrate, Sambhal at Chandausi, to quash the impugned charge sheet dated 01.09.2020 submitted in the aforesaid case and also to quash the impugned cognizance order dated 11.01.2021 passed by the learned Chief Judicial Magistrate, Sambhal at Chandausi. It has further been prayed to stay the entire proceedings of the aforesaid case.
3. The brief facts of the case are that an F.I.R. being Case Crime No.192 of 2020 dated 19.05.2020 has been lodged against the applicants under Section 34, 120-B, 504, 302, 149, 148, 147 I.P.C. and Section 3(2)(V) SC/ST Act, 1985. In the said case, despite the non-bailable warrant the applicants had not appeared before court then the order of proclamation under Section 82 Cr.P.C. was passed and thereafter, the applicants surrendered before the court below as stated in Para 18 to the application / present petition, which has not been disputed in Para 16 of the counter affidavit filed on behalf of State. After the applicants enlarged on bail. On 09.07.2020 an F.I.R. has been lodged by the Sub-Inspector against the applicants under Section 174-A IPC Case Crime No.0312 of 2020 has been registered in which after filing of chargesheet dated 1.9.2020 the cognizance order dated 11.01.2021 has been passed by the Chief Judicial Magistrate, Sambhal, Chandausi. The present petition/application has been preferred feeling aggrieved by the chargesheet dated 1.9.2020 and the cognizance order dated 11.01.2021 passed by the Chief Judicial Magistrate.
4. Learned counsel for the applicants has submitted that at no point of time, neither any summon, bailable warrant and non-bailable warrant were ever served upon the applicants nor there is any evidence during the investigation on the record regarding the service or refusal to accept the service or the applicants were not present at the address given before the court, same has specifically been pleaded in Para 28 of the application / petition, which has not been either denied or disputed by the state in Para 18 of the counter affidavit.
5.It is further submitted that as per Section 195 Cr.P.C., the lodging of an F.I.R. for Section 174 (A) IPC is not maintainable as per the procedure provided in Cr.P.C., if any proceeding is to be initiated i.e. by filing a complaint in writing either by the public servant concerned, or some other public servant to whom he is administratively subordinate. It is further submitted that in the present case public servant concerned means the Investigating Officer or the officer under whom that Investigating Officer is administratively subordinate. In the case of the applicants the investigating officer was the Circle Officer but the F.I.R. was lodged by the Sub-Inspector. In support of his submission, learned counsel for the applicants has relied upon the judgement and order of this Court dated 20.11.2020 passed in Criminal Misc. Writ Petition No.12772 of 2020 (Yogenshwar Sood And Another vs State of U.P. and 2 others) and the judgement of Hon'ble the Apex Court in the case of Daulat Ram vs. State of Punjab, 1962 Supp (2) SCR 812 : A.I.R. 1962 SC 1206.
6 Learned counsel for the applicant has further submitted that the order under Section 82(4) Cr.P.C. was passed on 12.06.2020 and the specific date for appearance of the appellant fixed was 16.07.2020, whereas prior to that date the F.I.R. was lodged on 9.7.2020 which shows the malicious action on the part of the complainant that without waiting the specified date, he proceeded against the applicants.
7. On the other hand, learned A.G.A. has submitted that the applicants had not appeared despite the non-bailable warrants were issued against them. The applicants appeared only after passing proclamation under Section 82 Cr.P.C. It is further submitted that Section 174-A I.P.C. provides initiation of proceeding and punishment against the persons who avoid the summons of the court, hence there is no illegality in the proceedings initiated against the applicants, but unable to dispute the submissions raised by the learned counsel for the applicants and the judgement relied upon.
8. After hearing learned counsel for the parties and going through the record and the judgements relied, it is found that Section 174 A I.P.C. provides that initiation of proceedings and punishment against the person, whoever fails to appear at the specified place and the specified time in response to the proclamation issued under Section 82 Cr.P.C., for the convenience Section 174-A I.P.C. is quoted hereinbelow:
"[174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.?Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub?section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub?section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.]."
9. From perusal of the above mentioned provision, it is clear that if a person fails to appear on a specified place and the specified time as required by the proclamation published under Section 82 of the Code of Criminal Procedure, 1973, the proceedings under Section 174-A I.P.C. shall be initiated wherein the punishment provided is with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section, the persons shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
10. In the present case, it is not disputed that the applicants had surrendered after the proclamation order was passed under Section 82 Cr.P.C., but not on the specified place and time as mentioned in the proclamation but the submission of the learned counsel for the applicant is that for initiating a proceeding under Section 174-A I.P.C. the procedure is provided under Section 195 Cr.P.C., for convenience the relevant extract of Section 195 is quoted below:
"195. Prosecution for contempt of lawful authority of public servants, for 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
(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. From perusal of the provisions, wherein it has been provided that no court shall take cognizance of any offence punishable under Section 172 to 188 I.P.C. except a complaint made by public servant concerned or some other public servant to whom is administrative subordinate and in the present case concerned public servant is the officer who had investigated the matter and in the present case the circle officer was the investigating officer and he was under the administrative subordinate of Superintendent of Police but neither any complaint in writing was filed by the circle officer or some other public servant to whom the Investigating Officer is administrative subordinate.
12. In the judgement / order dated 20.11.2020 passed by this Court in Criminal Misc. Writ Petition No.12772 of 2020 (Yogeshwar Sood And Another vs. State of U.P. & 2 others) where the F.I.R. was challenged on the same ground and the Hon'ble Court has quashed the F.I.R. on the ground that as per provision contained in Section 195(1) in the Code of Criminal Procedure, 1973, there is a specific bar for taking cognizance of any offence punishable under Section 172 to 188 of the I.P.C. and quashed the F.I.R. with an undertaking of the petitioners that they will appear before the concerned Magistrate / Court. The relevant extract of the judgement is quoted hereinbelow:-
"After hearing counsel for the parties and going through the record, it is apparent that Section 174-A deals with non-appearance and in case of issuance of a proclamation under section 82 of the Act-2 of 1974. As per provisions contained in Section 195(1) in the Code of Criminal Procedure, 1973 there is a specific bar from taking cognizance of any offence punishable under section 172 to 188 (both inclusive) of the IPC. Thus registration of FIR against petitioners under section 174-A, prima facie appears to be abuse of the process. However, in the writ jurisdiction we have to also balance equities. "
13. Learned counsel for the applicant has also relied upon judgement passed in the case of Daulat Ram vs. State of Punja reprted in 1962 Supp(2) SCR 812; AIR 1962 SC 1206; (1962)2 Crl LJ 286, the relevant para is quoted hereinbelow:
"4. Now the offence under s. 182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. In making his report to the Tehsildar therefore, if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer. The learned counsel for the State Government tries to support the action by submitting that s. 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for "a calendar". This paper was flied along with the charge sheet and it is stated that this satisfies the requirements of s. 195. In our opinion, this is not a due compliance with the provisions of that section. What the section comtemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tehsildar in this case. The trial was thus without jurisdiction ab inito and the conviction cannot be maintained. "
14. From the above mentioned judgement, wherein the Hon'ble Apex Court has held that the Tehsildar was investigating the matter and the chargesheet was filed by the Station House Officer, whereas the competent public servant was the Tehsildar and he has not submitted any written complaint, hence, the cognizance of the case was therefore wrongly assumed by the court and the trial was thus without jurisdiction ab initio and the conviction cannot be maintained.
15. In the present case also in pursuance of the F.I.R. lodged by the Sub-Inspector, the chargesheet was filed and the cognizance has been taken by the trial Court for an offence under Section 174-A I.P.C. in absence of any complaint in writing by the officern concerned. In the present case the officer concerned is the Investigating Officer i.e. the Circle Officer or the officer/ the public servant under whom he is administratively subordinate. In the present case the Circle Officer who is under administrative Sub-ordinate of the Superintendent of Police, so the Superintendent of Police has also not filed any complaint as required under Section 195 Cr.P.C. The proceedings were initiated in pursuance of an F.I.R. lodged by Sub Inspector, who was not the investigating officer and hence the order of the trial Court is without jurisdiction ab initio and the proceeding is liable to be quashed.
16. As per the discussion made hereinabove, the proceeding of Case No.179/2021, arising out of Case Crime No.0312/2020, under section 174-A IPC, P.S. Behjoi, District - Sambhal is quashed.
17. The present petition/ application is allowed.
Order Date :- 27.4.2022 S. Kumar