Allahabad High Court
Rameez Khan vs State Of U.P. And 3 Others on 7 May, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:81328-DB Reserved on 27.04.2024 Delivered on 07.05.2024 Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 6666 of 2024 Petitioner :- Rameez Khan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Basharat Ali Khan,Salman Ahmad Counsel for Respondent :- G.A. Hon'ble Siddharth,J.
Hon'ble Surendra Singh-I,J.
(Per: Hon'ble Surendra Singh-I,J.)
1. Heard Sri Basharat Ali Khan, learned counsel for the petitioner and learned AGA for the State.
2. By means of the instant writ petition under Article 226 of the Constitution of India, the petitioner is assailing the legality and validity of the FIR dated 20.3.2024 lodged in Case Crime No. 0058 of 2024, under Sections- 174-A IPC, Police Station- Kokhraj, District- Kaushambi.
3. As per the prosecution version, the informant/ Incharge Inspector Indradev lodged an FIR relating to Case Crime No. 0058 of 2024, under Sections- 174-A IPC, Police Station- Kokhraj, District- Kaushambi on 20.3.2024 as the accused Rameez Khan s/o Naimat Ullah Khan, r/o Shitalpur, Tulsipur, District- Balrampur in Case Crime No. 467 of 2023, under Section 302 IPC, P.S. Pokhraj, District Kaushambi was absconding. The NBW was issued against the accused on 07.12.2023 by Chief Judicial Magistrate, Kaushambi and declaration under Section 82 Cr.P.C. was done by the CJM Kaushambi on 18.1.2024. The declaration under Section 82 Cr.P.C. was executed by affixation of declaration against the accused on his address at Bhaghakala (Gulahria Kala) P.S. Tulsipur, District Balrampur as well as Police Station- Kokhraj District- Kaushambi. Raid was conducted on residential address as well as other addresses of the accused Rameez Khan. The accused has not complied with the declaration under Section 82 Cr.P.C. issued by the court. He has hidden himself and gradually removing his property. Thus accused committed an offence under Section 174-A IPC and FIR be lodged against him accordingly.
4. Averment has been made by learned counsel for the petitioner that the accused Rameez Khan is a law abiding citizen he is not absconding but really he has filed an application dated 18.3.2024 in the Court of CJM Kaushambi in Case Crime No. 468 of 2023 under Section 302 IPC P.S. Pokhraj, District- Kaushambi. On the surrender application of the accused, Incharge Inspector, P.S. Pokhraj send a report on 19.3.2024 that the accused Rameez Khan can be taken into custody in Case Crime No. 468 of 2023 under Section 302 IPC P.S. Pokhraj, District- Kaushambi. On 27.3.2024, the petitioner-accused surrender in the Court of CJM, Kaushami and was remanded to the judicial custody in Case Crime No. 468 of 2023 under Section 302 IPC P.S. Pokhraj, District- Kaushambi.
5. The further averment has been made by learned counsel for the petitioner that the impugned FIR dated 20.3.2024 bearing Case Crime No. 0058 of 2024 under Section- 174-A IPC is barred under Section 195 (1) (a) (1) Cr.P.C., the said section provides that the court can take cognizance of any offence punishable under Sections 172 IPC to 188 IPC can be taken by the court only on the complaint in writing of the court concerned or its officer. Since in the present case, FIR has been lodged by the Investigating Officer cognizance cannot taken on the charge-sheet filed by the Investigating Officer before the court concerned.
6. It has also been submitted by learned counsel for the petitioner that since the FIR lodged in Case Crime No. 0058 of 2024 under Section- 174-A IPC is barred. Since lodging the impugned FIR is barred by Section 195 (1) (a) (1), therefore, NBW and declaration under Section 82 Cr.P.C. issued in Case Crime No. 0058 of 2024 under Section- 174-A IPC be set aside. The revisionist has relied upon the judgment of this Court passed in Criminal Misc. Writ Petition No. 17560 of 2023 (Sumit and another Vs. State of UP and 2 others) delivered on 08.01.2024.
7. The averment has also been made by learned counsel for the petitioner that he has met with heart attack and was under going treatment, therefore, he was not able to attend the court on the date mentioned in the NBW and the declaration under Section 82 Cr.P.C, therefore, there is no disobedience of the process/declaration issued by the court against the petitioner.
8. Per contra, averment has been made by learned AGA for the state that since the petitioner did not appear in Case Crime No. 468 of 2023 under Section 302 IPC P.S. Pokhraj, District- Kaushambi, process of NBW and declaration under Section 82 Cr.P.C. have rightly been issued against him and the FIR under Section 174-A IPC was legally lodged against the accused-petitioner.
9. It has also been submitted by learned AGA that the offence is covered under Section 195 Cr.P.C. i.e. Section 172 I.P.C. to 188 IPC are non cognizable in nature whereas offence under Section 174-A is cognizable offence. The offence under Section 174-A IPC was incorporated into Penal Code on 23 June, 2006, whereas the provisions under Section 195 Cr.P.C. came into force on 1.4.1974. Since, on that date on which Section 195 Cr.P.C. was made effective i.e. 01.04.1974 the offence under Section 174-A IPC was not in existence and it was not added to Section 195 Cr.P.C. after the offence was incorporated in the Penal Code, therefore, Section 195 (1) (a) (1) shall not be applicable to Section 174-A IPC. Therefore, there is no requirement of taking cognizance of offence under Section 174-A IPC only on complaint case, therefore, cognizance can be taken on the basis of charge-sheet filed against an FIR lodged under Section 174-A IPC. The learned AGA has placed reliance on the Single Bench Judgment of this Court in (Moti Singh Sikarwar Vs. State of UP and Another) reported in 2016 SCC OnLine All 3862.
10. We have heard learned counsel for the petitioner, learned AGA for the State-respondent and perused the record.
11. Section 195 Cr.P.C. bars taking of cognizance of an offence under Sections 172 to 188 I.P.C. on the basis of charge-sheet filed against the accused.
12. The provision of Section 195 reads as under:-
"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."
13. The Division Bench of this Court after discussing the Provisions of Section 195 Cr.P.C. in the light of other provisions of the Indian Penal Code, Criminal Procedure Code and judgments of various High Courts including Allahabad High Court, overruled the judgement of Single Bench of this Court in the case of Moti Singh Sikarwar (supra) and has held that the bar under Section 195 (1) (a) (i) Cr.P.C. shall apply on taking cognizance of an offence under Section 174-A I.P.C. on the basis of charge-sheet submitted in pursuance of FIR lodged against the accused.
14. The relevant paragraphs of the judgment passed by this Court in the case of Sumit and Another vs. State of U.P. (supra) reads as under:-
"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."
15. Since the Division Bench of this Court in the case of Sumit and Another (supra) has overruled the Single Bench decision of this Court in the case of Moti Singh Sikarwar (supra), therefore, Section 195 (1) (a) (i) Cr.P.C. is applicable for taking cognizance of offence under Section 174-A I.P.C. and a Court cannot take cognizance of an offence under Section 174-A I.P.C. on the basis of charge-sheet filed after investigation.
16. From the above discussion, we are of the considered view that impugned FIR dated 20.3.2024 lodged in Case Crime No. 0058 of 2024, under Sections- 174-A IPC, Police Station- Kokhraj, District- Kaushambi is against the provision of Section 195 (1) (a) (i) Cr.P.C. and same is liable to be quashed.
17. The impugned F.I.R. dated 20.3.2024 is hereby quashed.
18. However, it is open to the concerned Court to file a written complaint against the petitioner under Section 174-A I.P.C. as per Section 195 (1) (a) (i) Cr.P.C., if there is no legal impediment.
19. With the aforesaid observations, the writ petition is allowed.
Order Date :- 07.05.2024
Akbar
(Surendra Singh-I,J.) (Siddharth,J.)