Gujarat High Court
Raiskhan Azizkhan Pathan vs The Session Judge on 15 April, 2013
Author: A.J.Desai
Bench: A.J.Desai
RAISKHAN AZIZKHAN PATHAN....Appellant(s)V/STHE SESSION JUDGE - DESIGNATED COURT R/CR.A/1568/2011 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1568 of 2011 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE A.J.DESAI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ RAISKHAN AZIZKHAN PATHAN....Appellant Versus THE SESSION JUDGE - DESIGNATED COURT & 1....Opponents/Respondents ================================================================ Appearance: MS MANISHA LAVKUMAR FOR MR ANKUR Y OZA, ADVOCATE for the Appellant. DELETED for the Opponent/Respondent No. 1 MR J.M.PANCHAL, SPECIAL PUBLIC PROSECUTOR for the Opponent/Respondent No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 15/04/2013 ORAL JUDGMENT
1. By way of the present Criminal Appeal u/s. 341 of the Code of Criminal Procedure, the appellant herein has challenged the judgement and order dated 09/11/2011 passed below Exh.989 in Sessions Case No.275 of 2002 by learned Sessions Judge, Designated Court, Mahesana, by which, learned Sessions Judge has directed the Registrar, District and Sessions Court, Mahesana to make a complaint in writing for the offences punishable under Sections 177 and 182 of the Indian Penal Code against the present appellant, by exercising powers u/s.340(1) of the Code of Criminal Procedure,1973.
2. Brief facts, arise from the record of the case, are as under:
That the appellant herein filed an application u/s.311 of the Code of Criminal Procedure,1973 and requested the learned Sessions Judge, who was conducting the trial of Sessions Case No.275 of 2002, to examine himself as a Court/ prosecution witness. The said application was submitted by the appellant on 30/11/2010. The said application was given Exhibit number 989 in Sessions Case No.275 of 2002. Learned Additional Sessions Judge, Mahesana vide judgement and order dated 20/12/2010 rejected the said application, Exh.989, which was filed by the appellant u/s.311 of the Code of Criminal Procedure. However, by rejecting the same, learned Additional Sessions Judge, Mahesana issued Show Cause Notice u/s.340(1) of the Code of Criminal Procedure and called upon the appellant to show cause, as to why the complaint should not be lodged against him for the offences punishable under Sections 177 and 182 of the Indian Penal Code in reference and context to Section 195(1) of the Code of Criminal Procedure (hereinafter referred to as the Code ).
Pursuant to the Notice issued by the learned Additional Sessions Judge, Mahesana, the appellant filed Reply and objected initiation of lodging of any complaint. After considering the Reply filed by the appellant as well as order dated 20/12/2010, by which application Exh.989 was rejected, learned Sessions Judge, Designated Court, Mahesana came to the conclusion that the appellant has committed an offence punishable under Sections 177 and 182 of the Indian Penal Code and directed the Registrar, District and Sessions Court, Mahesana to make a complaint in writing against the appellant for the offences punishable under Sections 177 and 182 of the Indian Penal Code. Hence, the appellant has filed the present Criminal Appeal.
3. Ms.Manisha Lavkumar, learned advocate appearing with Mr.Ankur Oza, learned advocate appearing on behalf of the appellant, submitted that as per Section 340 of the Code, the concerned Court has power to make a complaint to a Judicial Magistrate, First Class, having jurisdiction, if the Court comes to a conclusion, after preliminary inquiry, that a person has committed offences referred to in clause (b) of sub-section (1) of Section 195 of the Code, only. She further submitted that a Court cannot hold any preliminary inquiry for those offences, which are not referred to in clause (b) of sub-section (1) of Section 195 of the Code. She further submitted that as far as the present case is concerned, learned Trial Court has directed the Registrar, District & Sessions Court, Mahesana to lodge a complaint for those offences, which are punishable under Sections 177 and 182 of the Indian Penal Code, which does not fall within purview of clause (b) of sub-section (1) of Section 195 of the Code of Criminal Procedure.
In support of her submission, she has relied upon the decision of this Court rendered in the case of Dahya Revla v. Reva Chhita reported in 1970 Cri.L.J. 425 and submitted that it has been held that while dealing with section 476 of the Code of Criminal Procedure (old code), which is para-materia to Section 340 of the Code of Criminal Procedure,1973, this Court has held that a Court can take cognizance with regard to an offence mentioned in clause (b) of sub-section (1) of Section 195 of the Code of Criminal Procedure only that too, except complaint in writing of the public servant concerned or of some other public servant to whom, he is subordinate.
By relying upon this legal aspect, she has submitted that the offences are required to be quashed and set aside.
4. On the other hand, Mr.J.M.Panchal, learned Special Public Prosecutor appearing on behalf of the respondent- State submitted that the order dated 20/12/2012 passed by learned Additional Sessions Judge, Mahesana rejecting the application filed by the appellant u/s.311 of the Code of Criminal Procedure, is not under challenge, an appropriate order may be passed.
5. Heard learned advocates appearing on behalf of the respective parties. I have perused the Show Cause Notice issued by learned Additional Sessions Judge, Mahesana while rejecting the application filed by the appellant u/s.311 of the Code of Criminal Procedure. Considering submissions made by learned advocate appearing on behalf of the appellant, if the provisions of the Code of Criminal Procedure are looked into, Chapter XIV of the Code, deals with Conditions requisite for initiation of proceedings. Section 190 of the Code of Criminal Procedure, empowers any Magistrate of the first class, to take cognizance in certain situations. Section 195 of the Code, deals with regard to Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Similarly, Chapter- XXVI of the Code, deals with the provisions as to offences affecting the administration of justice. Since the learned Trial Court has initiated proceedings u/s.340 of the Code, which prescribes the procedure mentioned in Section 195 of the Code, it would be desirable to reproduce Section 195(1) and 340 of the Code of Criminal Procedure, to appreciate the contentions raised by the learned advocates, in the present case :
Section 195(1) of the Code of Criminal Procedure, 1973, reads as under:195
(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 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.
(2) ... ... ...
(3) ... ... ...
(4) ... ... ...
Section 340 of the Code of Criminal Procedure,1973, reads as under:
340Procedure in cases mentioned in section 195. - (1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, -
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) ... ... ...
(3) ... ... ...
On combine reading of these two provisions, which have already been dealt with in case of Dahya Revla (supra), it is clear that a Court and, after preliminary inquiry with regard to a findings of the fact that a person has committed offences, referred to in clause (b) of sub-section (1) of section 195 of the Code, and thereafter, make a complaint in writing and send it to the Magistrate, first class, to take cognizance of such cases. Clause (b) of sub-section (1) of section 195 of the Code, deals with the offences, which are referred to in sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of the Indian Penal Code, in which, procedure prescribed u/s.340 of the Code, is undertaken by the Court, in which, such offences alleged to have been committed by a person.
In the present case, while issuing Show Cause Notice, the Trial Court called upon the appellant to explain the cause as to why the complaint should not be lodged for the offences punishable under sections 177 and 182 of the Indian Penal Code. Even after considering the reply filed by the appellant to the Show Cause Notice, learned Trial Court has directed to lodge a complaint for the said offences i.e. 177 and 182 of the Indian Penal Code. In my opinion, it would be open for a Court to make a complaint for the offences, which are referred to in clause (b) of sub-section (1) of section 195 of the Code, and, therefore, has committed an error. I am in respectful agreement with the observations made by this Court in Para-5 of the judgement rendered in the case of Dahya Revla (supra), by which, it has been held that provisions of section 340 of the Code, would not be applicable, if a person alleged to have committed any offences, which are referred to in clause (a) of sub-section (1) of section 195 of the Code.
6. In view of the above facts of the case, I am of the opinion that the present Criminal Appeal requires consideration and the same is allowed. The judgement and order dated 09/11/2011 passed below Exh.989 in Sessions Case No.275 of 2002 by learned Sessions Judge, Designated Court, Mahesana and consequential proceedings so far as appellant is concerned, if any, are hereby quashed and set aside. Bail bond as well as solvent surety, if any, shall stand cancelled.
Direct service is permitted.
[A.J.DESAI, J.] *dipti Page 8 of 8