Madhya Pradesh High Court
Kapil vs The State Of Madhya Pradesh on 23 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1241
Author: Anjuli Palo
Bench: Anjuli Palo
1 CRR No.5577/2018
HIGH COURT OF MADHYA PRADESH AT JABALPUR
CRR No.5577/2018
Kapil
Vs.
State of Madhya Pradesh
Single Bench : Hon'ble Smt. Justice Anjuli Palo
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Shri Amit Dubey, Advocate for the applicant.
Shri Som Mishra, Government Advocate for the respondent/State.
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ORDER
(23/09/2019) This revision has been filed by the applicant against the order dated 03.10.2018, passed by Second Additional Sessions Judge, Burhanpur in Sessions Trial No.64/2017, whereby the charges under Sections 182, 195 & 211 of I.P.C. and Sections 25 & 27 of the Arms Act have been framed against him.
2. In brief, the prosecution case is that, on 26.04.2017 one Murlidhar Choudhari, uncle of applicant - Kapil, lodged an FIR against Yashika and two other persons, stating that the applicant and Yashika were having love affair. However, Yashika's marriage was settled with another boy. Therefore, she avoided the applicant. Jilted with this, applicant - Kapil went to the house of Yashika. This information was received by Murlidhar on his cellphone. On this information, Murlidhar reached the house of Yashika and found motorcycle of his nephew Kapil. At a distance, he found Kapil having recieved a gunshot injury on his waist. Applicant - Kapil narrated to Murlidhar that with an intention to kill him, 2 CRR No.5577/2018 Yashika and his companions shot at him. Murlidhar and others brought injured Kapil to the District Hospital, Burhanpur for treatment. As stated above, Murlidhar lodged the FIR against Yashika and others. Police registered offence under Section 307/34 of I.P.C. against Yashika and her companions. During investigation, police found that to teach lesson and create obstruction in the marriage of Yashika, applicant - Kapil to falsely implicate Yashika and others by using a country made pistol caused gunshot injury on himself at his waist. Hence, police registered offences under Sections 182, 195 & 211 of I.P.C. and Sections 25 & 27 of the Arms Act against applicant - Kapil.
3. Learned trial Court framed charges under Sections 182, 195 & 211 of I.P.C. and Sections 25 & 27 of the Arms Act against the applicant.
4. Applicant has challenged the aforesaid order on the grounds that he has not committed any offence and he has been falsely implicated by the police. He had neither given any false information to any public servant, nor lodged the FIR against anyone. In fact, FIR has been lodged by his uncle Murlidhar. As per law, complaint ought to have been made by public servant against Murlidhar. Hence, applicant is liable to be discharged from the charges levelled against him.
5. Heard learned counsel for the parties at length and perused the record.
6. As per the case diary, on 26.04.2017 applicant - Kapil was brought to the District Hospital, Burhanpur. The doctor found a gunshot 3 CRR No.5577/2018 injury on the left side of his hypochondrium region and he was admitted for further treatment. He referred the applicant to the Surgical Specialist, for further treatement.
7. Police seized a countrymade pistol (katta) with live cartridge and empty cartridge from the applicant and recorded the statements of some witnesses. Witnesses have stated that the applicant himself wanted to assault Yashika, because her marriage was settled with another boy. Applicant and Yashika had an affair. Police also recovered other articles from the applicant, which show that the applicant had falsely implicated Yashika and others for committing the offence punishable under Section 307/34 of I.P.C. Police sent all the seized articles to FSL. FSL report is positive. Hence, police filed charge-sheet against him under Sections 182, 195 & 211 of I.P.C. and Sections 25 & 27 of the Arms Act.
8. Gist of offence under Section 182 of I.P.C. is giving of false information so as to cause the public servant to act upon it. The offence is complete when the information bleaches the public servant concerned.
Section 182 of I.P.C. read as under:-
"182. False information, with intent to cause public servant to use his lawful power to the injury of another person- Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant:-
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term 4 CRR No.5577/2018 which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
9. In the present case, FIR dated 26.04.2017 indicates that on the basis of false information given by the applicant regarding the offence committed with him under Section 307/34 of I.P.C. against Yashika and others, caused Murlidhar to lodge the FIR against Yashika and others. Police recovered unlicenced country made pistol and cartridges from the possession of the applicant, which is sufficient to implicate him for the commission of the offence punishable under Sections 25 and 27 of the Arms Act. In such circumstances, the applicant is not entitled to be discharged from the offences under Sections 25 and 27 of the Arms Act.
10. For taking cognizance of offence under Section 211 of I.P.C.
- making of complaint in writing is mandatory, when the offence is alleged to have been committed, in or in relation to any proceedings in Court, by that or any Court to which that Court is administratively subordinate (vide Section 195 (1)(b)(i) of Cr.P.C., 1973).
11. Learned counsel for the applicant contended that the applicant cannot be prosecuted as per the provisions of Sections 195 (1)
(a) and 195 (1)(b) of Cr.P.C. as no complaint in writing has been made by any public servant. This Court is not inclined to accept such a contention, because the offence registered against the applicant is at the initiation of Police Inspector itself, who had investigated the matter which was based on the report lodged by Murlidhar on behalf of the applicant.
12. In the case of Central Bureau of Investigation vs. M. Sivamani [(2017) 14 SCC 855], Hon'ble the Supreme Court has held 5 CRR No.5577/2018 that:-
"Motor accidents claim petition was filed seeking compensation of Rs.22,00,000/- for death of M in a road accident which was partly upheld and Rs.14,97,000/- was awarded - On appeal of Insurance Company, High Court ordered investigation by CB CID into the allegation that claim was false - Subsequently, matter was taken over by CBI under directions of High Court which let CBI to file impugned charge-Sheet under Section 120-B read with Sub-Section 182, 420, 468, 468 read with Section 471 I.P.C. and Section 13(2) read with Section 13(1)(d), Prevention of Corruption Act, 1988 read with Section 511 I.P.C. against A-1 to A-9 (respondent herein is A-5) - According to CBI, Insurance Company was cheated by A-1 by making false claim in connivance with other accused - M sustained injuries by falling on his own from a scooter and not in an accident as alleged - Different accused were given different roles in conspiracy - Role given to respondent, who is an advocate, was of misrepresentation and producing false evidence, knowing the true facts.
During pendency of proceedings, respondent moved a petition pleading bar under Section 195(1)
(a)(i) Cr.P.C. by submtting that cognizance in respect of offence under Section 182 IPC could not be taken except "on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate", which was dismissed - However, in revision, High Court reversed such order of trial court and quashed proceedings against respondent - Whether there is non-compliance with Section 195(1)(a)(i) Cr.P.C. in Court taking cognizance of offence in question i.e. Section 182 IPC - Contention of appellant CBI herein, that object and purpose of bar created under law against taking cognizance in respect of specified offences is to control frivolous or vexatious proceedings by private parties.
Held, while bar against cognizance of a specified offence is mandatory, the same has to be understood in contest of purpose for which such a bar is created - The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolus proceedings 6 CRR No.5577/2018 by a private person - Expression "the public servant or his administrative superior" [in Section 195(1)(a) Cr.P.C.] cannot exclude High Court - It is clearly implicit in the direction of High Court, that it was necessary in the interest of justice to take cognizance of offence in question - Direction of High Court is on a part with the direction of an administrative superior public servant to file a complaint in writing in terms of statutory requirement - Protection intended by section against a private person filing a frivolus complaint is taken are of when High Court finds that matter was required to be gone into in pulic interest - Such direction cannot be rendered futile by invoking Section 195 to such a situation - Once High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)
(a) cannot be pressed into service - Hence, view taken by High Court in revision will frustrate the object of law and cannot be sustained - Accordingly, impugned order is set aside - Since matters are pending for last more than 15 years, proceedings are requested to be concluded as far as possible within six months."
13. In the light of the aforesaid principle laid down by the Supreme Court the objection raised by the applicant is not sustainable as he contended that he had not committed any offence and police has wrongly stated that he has fired himself and falsely implicated Yashika and others. These facts cannot be adjudicated at this stage of framing of charge without taking any evidence on record. Hence, under the revisional jurisdiction this Court is not inclined to interfere in the impugned order of the learned trial Court. In this regard, reliance can be placed on the case of State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand (2004) 7 SCC 659, Hon'ble the Supreme Court has held that:- :-
"Revisional power of High Court cannot be exercised as a second appellate power. In exercise of revisional power High Court cannot undertake in depth and minute re-examination of entire evidence and upset 7 CRR No.5577/2018 concurrent findings of trial Court and first appellate Court."
14. In the case of Amit Kapoor vs. Ramesh Chander and another, [(2012) 9 SCC 460], Hon'ble the Supreme Court has held that:-
"At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."
Thereafter, it has also been held as under :-
"Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C."
15. Similarly, in the case of State of Rajasthan Vs. Fatehkaran Mehdu, (2017) 3 SCC 198 Hon'ble the Supreme Court has held that :-
"At the stage of framing of a charge, the Court is concerned not with the proof of allegation, rather it has to focus on material and form an opinion whether there is strong suspicion that accused has committed an offence, which if put to trial, could prove his guilt. Framing of charge is not a stage, at which stage final test 8 CRR No.5577/2018 of guilty is to be applied. Thus, to hold that at the stage of framing of charge, the Court should form an opinion that accused is certainly guilty of committing an offence, is to hold something whcih is neither permissible nor is in conconance with the scheme of the Code of Criminal Procedure.
Thereafter, it has also been held as under :-
"The scope of interference and exercise of jurisdiction under Section 397 of Cr.P.C. has been time and again explained by this Court. Further, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure." [See also : AIR 2019 SCC 2499 State of Gujarat vs. Afroz Mohammed Hasanfatta]
16. After going through the above discussions, in the opinion of this Court, in the present case provision of Section 195(1)(a)(i) of Cr.P.C. is not applicable, as no complaint is necessary for the commission of offence which is not related to any Court proceeding and as it was not at the instance of any private party, but was at the instance of the investigating agency.
17. Accordingly, the revision stands dismissed.
(SMT. ANJULI PALO) JUDGE RJ Digitally signed by RAJESH KUMAR JYOTISHI Date: 2019.09.24 16:41:17 +05'30'