Allahabad High Court
Smt. Giriza Devi vs State Of U.P. & Another on 1 August, 2014
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 14 Case :- CRIMINAL REVISION No. - 143 of 1990 Revisionist :- Smt. Giriza Devi Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Rakesh Kumar Verma,Jitendra Prasad,Sudeep Dwivedi Counsel for Opposite Party :- V.B.L. Srivastava,A.G.A.,S.S. Pandey Hon'ble Mrs. Ranjana Pandya,J.
1. This revision has been preferred against the Judgment and order dated 16.12.1989 passed by the Second Additional Sessions Judge, Mirzapur in Criminal Revision No. 79 of 1989 allowing the revision against the order dated 6.9.1989 passed by the Chief Judicial Magistrate, Mirzapur in Criminal Case No. 738 of 1988.
2. Brief facts are that one Giriza Devi widow of late Kallu @ Ram Raj Singh moved an application to S.S.P., Mirzapur against three persons, namely, Mahendra Singh, Ashok Pathak and Badri Pathak alleging that they have got the sale deed executed in favour of Smt. Juvarati wife of Mahendra Singh of the property of Giriza Devi by personation. The S.S.P., Mirzapur directed to S.O. Jigna to enquire into the matter. The matter was inquired into and a report was submitted that case under Sections 419, 420, 647, 468, 471 I.P.C. was made out but the offence was committed within the territorial jurisdiction of Kotwali City, hence, F.I.R. was lodged in Kotwali City under section 419, 420, 467, 468, 471 I.P.C. in Crime No. 733 of 1989 against the accused Mahendra Singh, Ashok Pathak & Badri Pathak.
3. During investigation, thumb impression was taken for comparison and, at this stage, Ashok Pathak moved an application to the Investigating Officer that he cannot investigate into the matter as the matter was barred by Section 195 Cr.P.C. because a Civil Suit No. 612 of 1988 is pending in which sale deed has been challenged. The Investigating Officer obtained legal opinion from the prosecution officer and it was advised that case cannot proceed as it was barred by Section 195 Cr.P.C. Hence, F.R. Should be submitted. Accordingly, the Investigating Officer submitted F.R.The complainant Giriza Devi moved protest petition that F.R. may not be accepted and the case may be be sent for further investigation.
4. The learned Trial Court passed an order allowing the protest petition and F.R. was returned for further investigation. Against this order, the criminal revision no. 79 of 1989 was preferred which was allowed and the order dated 8.9.1989 passed by the Chief Judicial Magistrate, Mirzapur was set aside. Feeling aggrieved, the revisionist has come up in the present revision.
5. I have heard counsel for the revisionist and the learned A.G.A. None appeared on behalf of the opposite party no.2 in spite of due service.
6. There are three ways in which the result of the investigation can be presented. Under Section 169 Cr.p.C., the accused can be released when the evidence is deficient. Section 169 of the Cr.P.C. reads as under:-
"169. Release of accused when evidence deficient.- If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial."
7. Learned counsel for the revisionist has argued that the Judgment of the revisional court is erroneous and perverse inasmuch as the revisional court could not have allowed the revision. In support of arguments, he has placed reliance upon (2003) 11 SCC 251, M. Narayandas V. State of Karnataka and others, in which it has been held that the question whether Sections 195 and 340 of the Cr.P.C. affect the power of the police to investigate into a cognizable offence, has already been considered by the Apex Court in the case of State of Punjab Vs. Raj Singh and another (1998) 2 SCC 391. In this case, it has been held as follows:-
"2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is of course ture that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalkrishna Menon v. D. Raja Reddy on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 CrPC."
Not only are we bound by this Judgment but we are also in complete agreement with the same. Sections 195 and 40 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation completed then the embargo in Section 195 would come into play and the court would not be competent to take cognizance. However, that court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed. Thus no right of the respondents, much less the right to file an appeal under Section 341, is affected."
8. The learned counsel for the revisionist has assailed the order under revision and argued that Section 195 Cr.P.C. is not applicable before the Investigating Officer . During investigation, the accused persons have no locus standi to move any application before the Investigating Officer to drop the investigation and the first revisional court did not follow the procedure prescribed in law. Hence, the order is liable to be set aside.
9. Learned counsel for the petitioner further relied upon paras 8, 9 & 10 of the Judgment passed by the Jharkhand High Court in case of Manikant Dubey Vs. the State of Jharkhand and another, CR.M.P. No. 686 of 2006 in which it has been held as under.
"8. Thus, in view of the aforesaid law laid down by their Lordships of Supreme Court, it is clear that section 195 and 340 of the Code of Criminal Procedure do not control or circumscribe the power of police to investigate under the Criminal Procedure Code. Once the investigation is completed then the embargo and/or bar under section 195 Cr.P.C. come into play and in that event on the basis of charge sheet submitted by the police the court would not be competent to take cognizance. However the court concerned could file a complaint taking into account the facts stated in the FIR, the material collected during investigation but before doing so the court concerned is required to follow the procedure laid under section 340 of the Code of Criminal Procedure.
9.In that view of the matter, I find that learned CJM, Dumka had committed no illegality in sending the complaint petitions to Officer-In-Charge, Dumka (T) Police Station for institution of case and investigation and consequently Officer-In-Charge, Dumka (T) Police Station had also not committed any illegality in lodging First Information Reports.
10.The judgment relied upon by the learned counsel for the petitioners have of no help, because the question involved before their Lordships of Supreme Court in the aforesaid decision cited by learned counsel for the petitioners (2005) 4 SCC 370 is not involved in the present case. The question before their Lordships of Supreme Court in that case was Whether the bar contained in section 195 (1)(b)(C) would apply where forgery of a document was committed before the said document was produced in court and the question was answered by their Lordships that the said bar would not be applicable to a case where the forgery of the document was committed before the document was produced in a court. Admittedly in this case the said question is not raised by any of the party. Hence the judgment cited by learned counsel for the petitioners is not applicable in this case."
10. The Apex Court in (2007) 12 SCC 611, Rugmini Ammal (Dead) by Lrs. Vs. V. Narayana Reddiar and others, has supported the view taken in Sachida Nand Singh Vs. State of Bihar, (1998) 2 SCC 493 in which it was observed as follows:-
"19. As mentioned earlier, the words 'by a party to any proceeding in any court' occurring in Section 195 (1)(c) of the old Code have been omitted in Section 195(1)(b)(ii) CrPC. Why these words were deleted in the corresponding provision of the Code of Criminal Procedure, 1973 will be apparent from the 41st Report of the Law Commission which said as under in Para 15.93:
'15.93. ...The purpose of the section is to bar private prosecutions where the course of justice is sought to be perverted, leaving it to the court itself to uphold its dignity and prestige. On principle, there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses also. Witnesses need as much protection against vexatious prosecutions as parties and the court should have as much control over the acts of witnesses that enter as a component of a judicial proceeding, as over the acts of parties. If, therefore, the provisions of Clause (c) are extended to witnesses, the extension would be in conformity with the broad principle which forms the basis of Section 195.'
20. Since the object of deletion of the words 'by a party to any proceeding in any court' occurring in Section 195 (1)(c) of the old Code is to afford protection to witnesses also, the interpretation placed on the said provision in the earlier decisions would still hold good.
21. Section 190 CrPC 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 CrPC 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) CrPC is given in Section 340 CrPC and sub-sections (1) and (2) thereof are being reproduced below:"
11. Thus, the application for dropping the proceedings could not have been moved before the Investigating Officer because the accused had no locus standi to do so. Another aspect which appears to have been ignored by the revisional court was that it was mandatory on the part of the revisional court to hear the present revisionist which the first revisional court did not do. Section 401 of the Cr.P.C. reads as under:-
"401. High Court's powers of revision.-(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
12. No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence
13. Thus, it is clear from the reading of Section 401 (2) Cr.P.C. that no order under this Section shall be made to the "prejudice of the accused or other persons" unless he had opportunity of being heard either personally or by pleader in his own defence.
14. In the present case, the Judgment of the revisional court is on record which shows that neither Giriza Devi was made a party nor she was heard by the revisional court whereas it was mandatory for the revisional court to have heard this other person, namely, the complainant in the matter.
15. Thus, on the basis of what has been discussed above, I think the revisional court erred in passing the impugned order.
16. Accordingly, the revision is allowed. The order dated 16.12.1989 passed by the revisional court in Revision No. 79 of 1989 is set aside.
17. Let the matter be sent back to the Sessions Judge, who shall hear the matter afresh after giving opportunity of hearing to the complainant Giriza Devi as well as other concerned parties and pass order afresh in the light of the observation made in this revision.
Order Date :- 1.8.2014 Ram Murti