Jammu & Kashmir High Court
Kuldeep Singh And Anr vs Pritam Lal And Ors on 17 May, 2022
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRMC No. 625/2018
CrlM No. 745/2019
IA No. 01/2018
Kuldeep Singh and Anr. ...Petitioner(s)
Through: Mr. Sunny Mahajan, Advocate
Vs.
Pritam Lal and Ors. ...Respondent(s)
Through: None
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. The petitioners herein through the medium of the instant petition filed under Section 561-A Cr. P. C (482 Cr. P. C) are seeking quashment of order dated 4th June, 2018 (for short impugned order) passed by the court of Special Mobile Magistrate (Electricity), Batote (for short Magistrate) in a complaint titled as "Pritam Lal and Ors. vs. Kuldeep Singh and Anr".
2. The facts projected in the instant petition would reveal that a criminal complaint came to be filed by the respondents herein against the petitioners for commission of offence under Section 211 RPC alleging that the petitioners maliciously instituted criminal proceedings against them with the intention to cause injury to them and falsely charging them for having committed offence under Section 452/323 RPC and that the petitioners vide Judgment dated 14th December, 2017, came to be acquitted of the said offences.
3. The Magistrate upon entertaining the complaint filed by the respondents herein is stated to have taken cognizance and issued process thereof against the petitioners herein for the commission of offences under Section 211 RPC.
4. The impugned order is being challenged in the instant petition inter- alia on the ground that the court below did not appreciate the facts and law in its correct perspective while passing the impugned order and that the said order has been passed in breach of Section 195 (b) of Cr. P. C and that the Magistrate erred in not appreciating that the petitioners have been falsely implicated in the case by the respondents with an intention to cause injury to them and that in the face of the allegations made in the complaint, same does not disclose commission of alleged offence by the petitioners and that the impugned order passed by the Magistrate is mechanical in nature not sustainable in the eyes of law.
Heard learned counsel for the petitioners and perused the record.
5. According to the learned counsel for the petitioner, cognizance of offence under Section 211 RPC could not have been taken by the Magistrate in view of the provisions of Section 195 (1)
(b) Cr. P. C.
6. To better understand the aforesaid contentions of the counsel for the petitioners, it would be profitable to refer to Section 211 RPC read with Section 195 (1) (b) Cr. P. C here under: -
Section 211 RPC and Section 195 (1) (b) Cr. P. C reads as under: -
"Section 211. False charge of offence made with intent to injure. ---Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such, criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
"Section 195. (1) No Court shall take cognizance-
(b) Of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, [except on the complaint in writing of that Court or by such officer of the Court as that court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate]."
As appears from above, offences under Section 211 RPC fall under two categories, the first is a complaint to a Magistrate and the second is a report of a cognizance offence to a police officer. The essential ingredients of an offence under Section 211 RPC is to institute or cause to be instituted any criminal proceedings against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed any offence, knowing that there is no just or lawful ground for such proceedings.
Under Section 195 (1) (b) (supra), the Magistrate is debarred from taking cognizance of the offence under Section 211 RPC in the absence of a complaint in writing of the Magistrate himself, in that, the offence must have been committed within "in, or in relation to, any proceedings in any court".
7. Section 195 Cr. P. C lays down a rule to be followed which is to take cognizance of an offence specified therein. The Section however, does not provide for any guidance of the court which desires to initiate prosecution in respect of an offence alleged to have been committed in or in relation to a proceeding in the later court. Section 340 Cr. P.C provides for such guidance requiring the court desiring to put the law in motion to prefer a compliant either suo motto or an application made to it in that behalf.
8. The perusal of Section 340 provides that a prosecution under this Section can be initiated only by the sanction of the court under whose proceedings an offence referred to in Section 195 (1) (b) has been allegedly committed. The object of Section 340 Cr. P. C is to ascertain whether any offence affecting administration of justice have been committed.
9. Keeping in mind the aforesaid legal position and reverting back to the case in hand admittedly, the Magistrate has entertained the complaint filed by the respondents herein against the petitioners herein alleging therein commission of offence under Section 211 RPC. The Magistrate has also upon entertaining the complaint taken cognizance and issued process thereof in terms of impugned order.
10. Admittedly, cognizance in respect of Section 211 RPC could be taken only on the complaint made by that court which tried the offence in which the accused was acquitted and not on the basis of the complaint of the respondents herein who claimed to have been acquitted by the said court. The Magistrate in terms of Section 195 supra ought not to have either entertained the complaint, taken cognizance thereof or issued process against the accused persons/petitioners herein. The Magistrate thus has committed grave error in the process which is not sustainable in law. A reference in regard to above to the Judgment of the Apex Court passed in case titled as "Sh. Narendra Kumar Srivastava vs. State of Bihar and Ors." reported in (2019) 3 Supreme Court Cases 318 would be relevant.
11. Accordingly, the petition deserves to be allowed and consequently in exercise of inherent power, the impugned complaint filed by the respondents before the Magistrate entails dismissal and consequently the impugned order dated 4th June, 2018 is liable to be quashed.
12. Thus, petition is allowed, complaint filed by the respondents herein against the petitioners herein before the Magistrate is quashed along with the impugned order dated 4th June, 2018.
(JAVED IQBAL WANI) JUDGE SRINAGAR 17.05.2022 Sakeena Whether the order is reportable: Yes/No