Allahabad High Court
Arun Kumar Mourya vs State Of U.P. Thru. Prin. Secy. Home ... on 26 September, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2024:AHC-LKO:67338 Court No. - 13 Case :- APPLICATION U/S 482 No. - 8601 of 2024 Applicant :- Arun Kumar Mourya Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Arvind Kumar Misra,Vineet Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
1. Heard Shri Vineet Kumar Mishra, learned counsel for the applicant and learned AGA for the State and perused the record.
2. Present application has been filed for the following main relief(s):-
"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the Charge-Sheet No.303/2022 dated 19.05.2022, against the petitioner arising out of case crime no.182 of 2022, under Section 147, 353, 341, 188 I.P.C. & 7 CLA Act, relating to Police Station - Kotwali Shahar, District Hardoi & Consequential order i.e. Summoning order dated 02.06.2023 against the petitioner pending in the court of learned Chief Judicial Magistrate, Hardoi, District - Hardoi, against the petitioner (contained as Annexure no.1 & 2 to this petition), in the interest of law and justice."
3. It is stated that the proceedings under Section 147, 188, 341, 353 I.P.C., pending before the trial Court based upon the FIR is unsustainable in the eyes of law particularly in view of provisions as envisaged under Section 195 IPC.
4. It is further submitted that Division Bench of this Court in Criminal Misc. Writ Petition No. 17560 of 2023 (Sumit And Another vs. State of U.P. And 2 Others) held that proceedings under Section 188 IPC can be initiated only on the basis of written complaint of the Court and not on the basis of Police report. Reference can be made to Para 8 to 23 of the judgment, which are extracted hereinunder:-
"8. Before dealing with the contention of learned counsel for the petitioners that the F.I.R. u/s 174-A I.P.C. is barred by Section 195 Cr.P.C., it will be appropriate to discuss the legal provision, involved in the present case. Section 195 Cr.P.C. which prohibits the Court from taking cognizance of any offence punishable u/s 172 to 188 I.P.C., is being 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;
(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, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
9. From perusal of Section 195(1)(a)(i) Cr.P.C., it is clear that the offences for which there is prohibition on court to take cognizance are non-cognizable offences from Section 172 to 187 I.P.C. while Section 188 I.P.C. is mentioned as cognizable offence under First Schedule of Cr.P.C. The definition of "cognizable offences" is provided u/s 2(c) Cr.P.C. which is being quoted as under:
"2(c). "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant."
10. Therefore, it is clear that in cognizable offences, police can arrest the accused without warrant. It is also clear from perusal of Section 195 Cr.P.C. that offences, punishable u/s 172 to 188 I.P.C. are cognizable by the court only when a complaint in writing is filed by public servant concerned or his subordinate. As per Section 21 I.P.C., "public servant" includes every judge, including any person empowered by law to discharge any adjudicatory function. Therefore, the Magistrate who issues proceedings u/s 82 Cr.P.C. will be deemed to be public servant within the meaning of Section 195 Cr.P.C. The word "complaint" referred in Section 195 Cr.P.C. is defined u/s 2(d) Cr.P.C. which is being quoted below:
"2(d). " complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant."
11. From perusal of Section 2(d) Cr.P.C., it is clear that though the complaint does not include police report but the explanation of Section 2(d) Cr.P.C. also provides that if after investigation of a case a police report is submitted by the police officer, regarding non-cognizable offence then same shall also be deemed to be "complaint". Therefore, apart from making allegation to Magistrate for taking action against a person who has committed an offence but also the police report/charge sheet of non-cognizable offence will also be deemed to be "complaint". From this fact, it is clear that police report of cognizable offence cannot be treated as a complaint by any stretch of imagination.
12. Section 174-A I.P.C. was inserted after Section 174 I.P.C. though Section 44(b) of the Code of Criminal Procedure (Amendment) Act, 2005 and by Section 42(c) of this amendment Act, Section 174-A I.P.C. was also included in the First Schedule of Cr.P.C. after the entry relating to Section 174 I.P.C. Sections 42(c) and 44(b) of the Code of Criminal Procedure (Amendment) Act, 2005 are being quoted as under:-
"42(c). after the entries relating to section 174, the following entries shall be inserted,
1.
2.
3.
4.
5.
6. "174A Failure to appear at specified place and specified time as required by a proclamation published under sub-section (1) of Section 82 of this Code Imprisonment for 3 years, or with as fine, or with both Cognizable Non-bailable Magistrate of the first class In a case where declaration has been made under sub-section (4) of section 82 of this Code pronouncing a person as proclaimed offender Imprisonment for 7 years and fine Ditto Ditto Ditto."
44(b). after section 174, the following section shall be inserted, namely:-
"174A. 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."
13. After insertion of Section 174-A in I.P.C. as well as in First Schedule of Cr.P.C., further amendment was also made in the year 2006 in Section 195(1)(b) Cr.P.C., but no amendment was made in Section 195(1)(a)(i) Cr.P.C. Therefore, at the time of inserting Section 174-A in I.P.C. as well as in First Schedule of Cr.P.C. after Section 174, legislature was well aware about the category of offences u/s 195(1)(a)(i) Cr.P.C. and for this reason, while making amendment in Section 195(1)(b) Cr.P.C. in 2006, Section 195(1)(a)(i) Cr.P.C. was kept untouched knowingly by the legislature. The above position clearly reveals that while inserting Section 174-A I.P.C., legislature was well aware that in Section 195(1)(a)(i) Cr.P.C., apart from Section 188 I.P.C., one more cognizable offence i.e. 174-A I.P.C. is being inserted for providing the bar of cognizance on the part of court for offences mentioned in Section 195(1)(a)(i) Cr.P.C., except on the complaint.
14. In the judgement of Punjab and Haryana High Court delivered in Pradeep Kumar vs. State of Punjab and another (supra), relied upon by the counsel for the petitioners, above mentioned analysis of this Court was also considered and it was observed in paragraph Nos. 12.12 to 12.16 as under:-
"12.12. Be that as it may, it is unmistakably evident that the omission of Section 174A from the purview of Section 195 of the Cr.P.C. cannot be treated as a mere inadvertent oversight. It gets more particularly obvious, when viewed through the lens of the deliberate simultaneous legislative action taken to amend Schedule-1. This deliberate choice to eschew any alteration in Section 195 Cr.P.C. while making concurrent changes elsewhere in the same Code suggests a level of intentionality that cannot be readily discounted.
12.13. Having opined as above, I may also hasten to add here that non-inclusion of Section 174-A of IPC into the ambit of Section 195 of Cr.P.C in its current form, does though create some incongruity/legal inconsistency. To elucidate, let us consider an illustrative scenario: Imagine an individual accused of an offense falling under Section 174-A of the IPC. Being an offense classified as cognizable, the police have the authority to arrest the accused without a warrant. However, Section 195 of the Cr.P.C. bars any Court from taking its cognizance except on the complaint in writing made by the Court/Public servant concerned. This creates an anomalous situation where an individual who is accused under Section 174-A IPC could potentially be arrested without a warrant, yet the legal requirement for his prosecution for such an offense is by way of filing a complaint under Section 195 of the Cr.P.C.
12.14. The incongruity, if any, in the legal framework rather warrants a closer examination of legislative intent. The statutory insistence ibid, of filing of complaint by public servant/court concerned is in tune with fundamental right to personal liberty as enshrined under Article 21 of the Constitution of India. The same underscores the importance of aligning legal provisions to ensure that personal liberty of an individual is given paramount consideration,given that an individual who is declared as proclaimed person or offender, as the case may be, is a mere suspect/under trial and not yet a declared culprit. He is also equally entitled to procedural protection in exercise of his fundamental right under Article 21. Same has to be thus safeguarded. Justice has to be administered even to a suspect/under trial without any ambiguity or drawing inferences against him from legislative ambiguities. Thus the incongruity ought not to result in an asymmetry of rights and due process. Such an inconsistency underscores the critical need for clarity in legislation and ascertaining its intent through judicial interpretation in matters affecting personal liberty and justice.
12.15. Nevertheless, even if we were to entertain the notion that non-exclusion of Section 174-A of IPC from the purview of Section 195 Cr.P.C. was by an inadvertent oversight/omission in the legislation, it is crucial to recognize that any benefit arising from such an inadvertence or oversight would accrue to the advantage of the accused, rather than the prosecution. In the realm of criminal jurisprudence, matters pertaining to personal liberty hold a paramount position. Such matters pertaining to personal liberty should never be predicated upon inferences drawn against the accused from presumed intentions and/or inadvertent omissions on the part of the legislature. The sanctity of personal liberty demands nothing less than clear and categorical legislative provisions ensuring that justice is not compromised by inferences drawn against the accused from legislative ambiguity or oversights.
12.16. In conclusion, it is held that Section 195 of the Code of Criminal Procedure (CrPC), in its present form, encompasses Section 174-A of the Indian Penal Code (IPC) within its purview."
15. This Court is also of the view that proceedings u/s 174-A I.P.C. is initiated for providing punishment to the person who despite initiation of proceedings u/s 82 Cr.P.C. against him, failed to comply with the same and despite making the same as cognizable offence, it was included u/s 195(1)(a)(i) Cr.P.C. so as to prohibit the police from making unnecessary harassment of the accused as the police had already been proceeding against him u/s 82 Cr.P.C. Therefore, the sole purpose of legislature by putting Section 174-A in the category of offence mentioned in Section 195(1)(a)(i) Cr.P.C. is to make act of accused punishable for not honouring the process u/s 82 Cr.P.C. and also to protect the unnecessary violation of personal liberty of the accused because police is already free to arrest and take action against the accused person under the proceeding of Section 82 Cr.P.C. as well as pending N.B.W.
16. Though in cognizable offences police can arrest an accused without warrant but specific exception has been carved out by inserting Section 174-A I.P.C. in Section 195(1)(a)(i) Cr.P.C., despite being a cognizable offence.
17. So far as the judgement, relied upon by learned A.G.A., passed by the Delhi High Court in Maneesh Goomer (supra) as well as judgement of Allahabad High Court in Moti Singh Sikarwar (supra) are concerned, same were based on the incorrect interpretation that all the offences, mentioned u/s 195(1)(a)(i) Cr.P.C., are non-cognizable offences ingnoring the fact that Section 188 I.P.C. is a cognizable offence. Paragraph-9 of the judgement passed by Delhi High Court in Maneesh Goomer (supra) is being quoted below:-
"9. As regards the next contention of the Petitioner that for a prosecution under Section 174-A IPC no cognizance can be taken on a charge-sheet but on a complaint under Section 195 Cr.P.C., it may be noted that Section 174-A IPC was introduced in the Code with effect from 23rd June, 2006. Section 195(1) Cr.P.C. provides that no Court shall take cognizance of offences punishable under Section 172 to 188 (both inclusive) of the IPC or of the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought intp the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are non- cognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner."
18. Similarly, paragraph 21.1 of the judgement passed by Allahabad High Court in Moti Singh Sikarwar (supra) is being quoted as under:-
"21.1. It is to be noted that all the offences under Section 172 to 188 I.P.C. (both inclusive) are non-cognizable and bailable, whereas Section 174-A I.P.C. which provides for punishment upto 7 years imprisonment and fine, in case the offender fails to appear at the specified place and the specified time, as required by the proclamation published under Section 82 Cr.P.C., is cognizable and non-bailable. The legislature was conscious of this fact and that is why while introducing Section 174-A in the I.P.C. in the year 2006, it made no corresponding amendment in Section 195(1)(a) Cr.P.C. so as to include Section 174- I.P.C. in between all the non-cognizable offences and bailable from Sections 172 to 188 I.P.C."
19. From perusal of aforesaid observations of Single Benches of Allahabad High Court as well as Delhi High Court, it is clear that the very basis of interpretation that Section 174-A I.P.C. being cognizable offence cannot be read as a section to be included in the category of cases mentioned in Section 195(1)(a)(i) Cr.P.C. is itself incorrect and does not lay down correct law. So far as the judgement of Apex Court in Jayant vs. State of Madhya Pradesh (supra) as well as Pradeep S. Wodeyar (supra) are concerned, in both the judgements controversy was entirely different and the Hon'ble Apex Court did not hold that Section 174-A I.P.C. is not part of Section 195(1)(a)(i) Cr.P.C.
20. In the case of Jayant vs. State of Madhya Pradesh (supra), the issue was regarding registration of F.I.R. under Mines and Minerals Act, 1957 as well as offence u/s 379, 414 I.P.C. As there is a bar u/s 22 of Mines and Minerals Act which provides that cognizance of the offence under Mines and Minerals Act will not be taken by the Court except upon a complaint by an authorized person. Therefore, Hon'ble Apex Court observed that apart from offences under Mines and Minerals Act, offences under I.P.C. have also been invoked, therefore, bar of Section 22 of Mines and Minerals Act will not be applicable. It was further observed that after completion of investigation the Magistrate will take cognizance of the offence under I.P.C. but the cognizance of offence under Mines and Minerals Act will be taken on the basis of complaint. Paragraph 13 of the of Jayant vs. State of Madhya Pradesh (supra) is being quoted as under:-
"13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-a-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:
i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In-charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted;
ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder;
iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and
iv) that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In-charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.
v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section 1 of Section 23A, considering sub-section 2 of Section 23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded.However, the bar under sub-section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."
21. However, in the present case the petitioners are charged for the offence u/s 174-A I.P.C. only, cognizance of which is barred u/s 195 Cr.P.C. Therefore, the controversy in the present case is totally different from that of the judgement relied upon by learned A.G.A. Similarly, in the judgement of Pradeep S. Wodeyar (supra), relied upon by learned A.G.A., the controversy was regarding irregularity of the cognizance, therefore, controversy in that case is also different from the present one.
22. It is clearly established that Section 174-A I.P.C. was inserted by way of amendment in 2005 between Sections 172 to 188, therefore, it is clear that Section 174-A I.P.C. is part of the offences mentioned in Section 195(1)(a)(i) Cr.P.C. for which court is barred from taking cognizance except upon a complaint by the court.
23. It is also relevant to mention here that cognizable offence itself permits the police to arrest a person without warrant, therefore, registration of F.I.R. of cognizable offence itself will affect the personal liberty of a person protected by Article 21 of the Constitution of India. Therefore, if legislature had intended to invoke the provision of cognizable offence only on the basis of filing written complaint then permitting to register F.I.R. for direct offence will definitely amount to interfere/deprive the personal liberty of a person. Therefore, once Section 195(1)(a)(i) Cr.P.C prohibits the taking cognizance of the offence u/s 174-A I.P.C., except on the basis of written complaint, then permitting lodging of an F.I.R. u/s 174-A I.P.C. will amount to travesty of justice to the person concerned as the personal liberty under Article 21 of the Constitution cannot be deprived, except in accordance with law.
Conclusion
24. Therefore, if the court itself cannot take cognizance of the offence u/s 174-A I.P.C. on the basis of police report, then lodging the F.I.R. u/s 174-A I.P.C. is futile, and will be against the provision of Section 195(1)(a)(i) Cr.P.C. Therefore, proceedings u/s 174-A I.P.C. can be initiated only on the basis of written complaint of the court which had initiated proceedings u/s 82 Cr.P.c. against the accused and F.I.R. is barred by Section 195(1)(a)(i) Cr.P.C.
25. This Court also holds that judgement of Single Benches of Allahabad High Court in Moti Singh Sikarwar (supra) as well as of Delhi High Court in Maneesh Goomer (supra) have not laid down correct law regarding interpretation of Section 174-A I.P.C. read with Section 195(1)(a)(i) Cr.P.C."
5. Attention has also been drawn towards the judgment and order dated 18.06.2021 passed by Karnataka High Court in Writ Petition No. 13328 of 2018(GM-RES), Sri Rajashekharananda Swamiji and Another Vs. The State of Karnataka, referring para nos. 7, 8, 9,10 and 11 which read as under:
"7. As rightly pointed out, Section 188 of IPC is the main offence. The other offences flow from that. Section 195(1)(a) of Cr.P.C. bars the Court to take cognizance of such offence unless in accordance with the procedure laid down therein. Section 195(1)(a) reads as follows:
"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, 1860 (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;"
8. Reading of the above provision makes it clear that to take cognizance there should be a written complaint and such complaint should be filed either by the officer issuing such promulgation order or the officer above his rank. In the case on hand, as per the complaint itself, prohibitory order under Section 144 of IPC was promulgated by the Commissioner of Police and not the complainant.
9. Further Section 2(d) of Cr.P.C. defines complaint as allegations made orally or in writing to the Magistrate with a view to the Magistrate taking action on such complaint under the Code. Only on such complaint, the Magistrate can take cognizance under Section 190(1)(a) of Cr.P.C. Thereafter the procedure prescribed under Section 200 of Cr.P.C. has to be followed. Therefore the first information report, charge sheet and the order taking cognizance on such charge sheet are without jurisdiction.
10. Then the question is Annexures-A to D get vitiated only so far as the offence under Section 188 of IPC. In para 8 of the judgment in State of Karnataka v. Hemareddy [(1981) 2 SCC 185], the Hon'ble Supreme Court held as follows:
"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."
(Emphasis supplied)
11. Reading of the above judgment makes it clear that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C, then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld. Therefore the entire complaint, first information report, charge sheet and the order taking cognizance are liable to be quashed. The petition is allowed.
The impugned first information report, complaint, the charge sheet and the proceedings in C.C.No. 3660/2016 are hereby quashed."
(Emphasis supplied)
6. Learned counsel for the petitioner has stated that the facts and circumstances of the present case are similar to the case dealt by the Karnataka High Court, inasmuch as in the present case, the complaint has not been lodged by the authority who has issued the promulgation order under Section 144 Cr.P.C. but by one Sub Inspector. Further, in the case decided by the Karnataka High Court Re: Sri Rajashekharananda Swamiji (supra), the FIR was lodged under Sections 143, 144, 145, 147, 148, 153, 188, 332, 353 of IPC and Sections 2(a) and 2(b) of the Karnataka Prevention of Destruction and Loss of Property Act, 1981 and in the present case the FIR was lodged against the petitioner under Sections 147, 353, 341 and 188 of IPC.
7. Further attention has been drawn by learned counsel for the petitioner towards the judgment and order dated 10.11.2017 passed by Gujarat High Court rendered in Criminal Misc. Application (For Quashing & Set Aside Fir/order) No. 17286 of 2017 (Merubhai Mandanbhai Chandera and 1 others Vs. State of Gujarat and 1 others). Para nos. 45 and 46 refered read as under.
"45. In State v. Kathi Unad, AIR 1955 Saurashtra 10: (1955 Cri LJ 52), the learned Judge relying on the Supreme Court case of Bashirul Haq AIR 1953 Supreme Court 293:(1953 Cri LJ 1232) said that the very act of obstruction lay in the assault and the hurt to complainant and that the offence primarily committed was under Section 186, I.P.C. and to convict the accused for the offence under Section 332, I.P.C. would be tantamount to holding them guilty under Section 186, I.P.C. and then convicting them for the offence under Section 332, I.P.C. They came to the conclusion that the prosecution could not circumvent the provisions of Section 195 by a dubious method. (See also Makaradhwaj Sahu vs. State AIR 1954 Orissa 175: (1954 Cri LJ 950). The decision in AIR 1953 Nag 290 : (1953 Cri LJ 1573) is also pertinent.
46. In some of the applications before me, the only offence is either section 186 or 188 of the IPC. In such type of cases, there should not be any difficulty in quashing the prosecution in view of the bar of Section 195 of the Cr.P.C., 1973 However, there are few cases on hand, in which, over and above sections 186 or 188 of the I.P.C., the other offences are also there which are not covered under section 195 of the Cr.P.C., 1973. It is only in such cases, the court has to be careful. I have noticed that in some of the cases, there is a charge of section 353 of the IPC along with section 186 of the IPC. I am of the view that the very act of obstruction lies in the alleged assault and use of criminal force. In truth and substance, such an offence would fall in the category of sections mentioned in section 195 of the Code and it is not open to bye pass its provisions even by choosing to prosecute under section 353 of the IPC only. There is no scope, in any of the matters on hand, having regard to the materials on record, to split up the offences so as to avoid the bar of section 195 of the Cr.P.C. 1973 as all the offences can be said to have been committed in the course of one transaction. All the offences can be said to have been an integral part of one transaction."
(Emphasis supplied)
8. Learned counsel for the petitioner has also drawn attention of this Court towards judgment of Apex Court rendered in the case of D.K. Rajendran and Ors. etc. etc. Vs. State of T.N., reported in AIR 2010 SC 3718, referring Para 25 which reads as under.
"25. 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."
(Emphasis supplied)
9. Learned counsel for the petitioner has stated that the Karnataka High Court as well as Gujarat High Court, in the aforesaid judgments, have held that if the offences form part of same transaction of the offences contemplated under Section 195(1) of Cr.P.C., then it is not possible to split up and hold that prosecution of the accused for the other offences should be upheld, therefore, learned counsel has stated that in view of the bar under Section 195 of Cr.P.C., the prosecution under Section 188 IPC may fall against the petitioner and since the offences form part of same transaction, therefore, the chargesheet consisting Section 188 IPC and other Sections and further proceedings are liable to be quashed.
10. It is also submitted that if it is taken that the offence indicated in the FIR as also in the Charge Sheet i.e. Offence under Section 147, 353, 441 and Section 7 of Criminal Law Amendment Act, 2013 can be spilited, even then it is as case of no evidence and as such, indulgence of this Court is required in the matter.
11. In so far as Sections 147, 353, 441 and Section 7 of Criminal Law Amendment Act, 2013 are concerned, it would be apt to indicate the relevant facts of the case.
A. The FIR was lodged by Umesh Kumar Pal, Driver of Additional District Magistrate, Hardoi on 10.03.2022 at 00:37 hours, which was registered as FIR N.0182 and the same was lodged against 100 unknown persons.
B. According to this FIR, unknown 100 persons violated the provisions of Section 144 Cr.P.C. and blocked the road and also obstructed public servants to perform their duties and in taking note of the allegations thereof the FIR was lodged under Sections 147, 353, 341, 188 I.P.C. and 7 Criminal Law Amendment Act, 2013.
C. After investigation, the charge sheet no.01 dated 20.05.2022 was filed against 14 persons including the present applicant, namely, Sheel Prakash Gupta, whose name finds place at serial no.13 in the charge sheet. Column no.16 of the charge sheet does not indicate that on which basis the same has been filed against 14 persons.
D. It appears from the document on record that after lodging of FIR, the Investigating Officer (in short 'I.O.'), based upon the information received from the informer of the police, who provided video clips and photographs, indicated the names of 16 persons in Parcha No.2 dated 11.03.2024.
E. I.O. thereafter recorded the statements of accused Sanjay Kashyap s/o Shri Ramsahai and accused Parvesh Srivastava s/o Shivram Srivastava.
F. It would be apt to indicate at this stage that the confessional statements of the accused would not be admissible in evidence.
G. The statements of Umesh Kumar Pal s/o Munnu Pal, Dileep Gupta s/o Ram Gupta, Sachin Gupta s/o Krishna Gupta, Pappu s/o Bhagwandeen, Smt. Vandana Trivedi, Additional District Magistrate, Hardoi, Constable Rajeev Kumar s/o Puranmal, who were alleged to be present at the place of crime were also recorded. However, these persons/witnesses of prosecution did not indicate the name of the accused persons including the name of the applicant in their statements.
H. The I.O. thereafter based upon the aforesaid evidence has filed the charge sheet against (i) Jitendra Verma alias Jeetu Verma s/o Harishchandra Verma (ii) Harinam Singh Yadav s/o Balakram Yadav (iii) Vinod Kumar Yadav alias Jilledar s/o Balakram Yadav (iv) Ramgyan s/o Nandlal Gupta (v) Neeraj Awasthi s/o Kamlesh Awasthi (vi) Sanjay Kashyap s/o Ramsahai (vii) Arun Kumar Maurya s/o Late Shri Surendra Prakash (viii) Abhai Pratap Singh s/o Virendra Singh Yadav (ix) Virendra Singh Yadav alias Veere Yadav s/o Natthu Singh (x) Sudhir Gupta s/o Gangaram Gupta (xi) Riyasat Khan s/o Late Basharat Khan (xii) Amit Bajpayee s/o Rajendra Kumar Bajpayee (xiii) Sheel Gupta s/o Akhileshwar Nath Gupta (xiv) Parvesh Srivastava alias Kukku (xv) Amit Singh alias Meetu s/o Santosh Singh and (xvi) Abhinav Rajpoot s/o Madanpal Rajpoot.
I. It would be further apt to mention that from the Column nos.10, 16, 19 and 20 of the charge sheet it is apparent that the photographs or the video clips of the incident were not collected and filed alongwith the charge sheet/report prepared under Section 173 Cr.P.C.
12. Upon due consideration of the aforesaid facts of the case and law referred above, this Court is of the view that the instant application for the reliefs sought is liable to be allowed. It is for the following reasons.
(i) Indisputably, the complaint has not been filed in terms of Section 195 Cr.P.C. by the concerned officer, therefore, the trial court could have not taken cognizance of the chargesheet indicating the offence under Section 188 IPC.
(ii) Particulars of the witnesses to be examined during trial have been mentioned in column no.13 of the Charge Sheet. According to this column, the prosecution would examine only one witness of the fact, namely, Umesh Kumar Pal and this witness in his statement, during investigation, has not indicated the names of the accused persons including the applicant. Other witnesses named in this column are formal witnesses.
(iii) Other, above named persons, except the accused, namely, Sanjay Kashyap and accused Parvesh Srivastava, have also not indicated the names of the accused persons in their statements recorded by the I.O.
(iv) The statement of accused Sanjay Kashyap and accused Parvesh Srivastava recorded by the I.O. are not admissible in evidence.
(v) To support its case, the prosecution has not filed any other evidence along with the report viz. photographs, video clips, etc. including the evidence to establish the fact that the order under Section 144 Cr.P.C. was widely circulated, as is evident from a perusal of the charge sheet including Column No.10 (Details of Properties/Articles/Documents recovered/seized during investigation and relied upon), Column No.16 (brief facts of the case), Column No.19 (No. of enclosures) and column no.20 (List of enclosures).
(vi) From the aforesaid, it is apparent that the case of the prosecution is a case of no evidence.
(vii) In the facts of the case this Court finds that offences form part of same transaction of the offences indicated under Section 195 Cr.P.C. including Section 188 Cr.P.C. and it is not possible to split up and hold that the prosecution of the accused/applicant for the other offences should be upheld.
13. For the reasons recorded hereinabove, the instant application is allowed for the reliefs sought. Consequently, entire criminal proceedings arising out as Case Crime/F.I.R. No.0182 of 2022 dated 10.03.2022 are hereby set aside/quashed, qua the applicant.
14. Office/Registry is directed to send the copy of this order to concerned Court forthwith.
Order Date :- 26.9.2024 Anand/-