Indian Kanoon - Search engine for Indian Law

4. On the said application the present case crime no. 592 of 2012 appears to have been registered under section 419, 420, 468, 471 IPC at P.S. Faizganj Behta, District Buadaun on 7.11.2012 at 6.10 A.M. and after investigation by the Investigating Officer, charge-sheet has been submitted against the Satyaveer, Smt. Saroj Mishra (applicant) and Mahendrapal under section 419, 420, 468, 471, 177 and 181 IPC.

5. Contention of the learned counsel for the applicant is that on 25.8.2011 the applicant had filed a complaint before the CJM, Budaun against the opposite party no. 2 under sections 323, 504, 506, 427 IPC which was registered as a Complaint Case No. 1226 of 2011 which is at page-52 as Annexure-9 stating therein that on 27.7.2011 at about 8.00 A.M. when she was going to attend her duty as Aganbari Karyakarti, near Devi temple the accused persons namely Yad Ram @ Santosh, Raja Ram and Kishori Lal came in her way armed with illegal weapon and demanded Rs.10,000/- as illegal gratification giving threats to face dire consequence in case the same was not given. They also used abusive language against her. In the said case statement of applicant was recorded before Magistrate on 25.8.2011 under section 200 Cr.P.C. and that of witness Satyaveer under section 202 Cr.P.C as PW2 on 5.12.2011. In her statement, the applicant had fully corroborated the allegation made in the complaint. However, it was made clear by the applicant that no other witness was present at the time of incident on the spot. Statement of Mahendrapal was also recorded under section 202 Cr.P.C as PW1 on 3.11.2011, in which he also stated that along with other persons, Mahendrapal too was present there. After considering the entire evidence, learned Magistrate summoned the opposite party no.2 and two others in the said complaint case no. 1226 of 2011 to face trial under section 323, 504, 506, 429 IPC. On 7.11.2012 opposite party no.. 2 lodged an FIR at P.S. Faizganj Behta of the present case against the applicant Saroj Mishra, Satyaveer and Mahendrapal by moving application under section 156 (3) Cr.P.C. alleging that after summoning order in the Complaint Case No.1226 of 2011, she verified the record and found that the statement made by Mahendrpal was not possible to have been made because he was in jail since 19.7.2011 to 28.7.2011 in relation to case crime no. 664 of 2011 while the complainant of complaint case no. 1226 of 2011 had shown Mahendrapal to be present at the time of occurrence of the said case. The police without making proper investigation, filed charge-sheet on 28.11.2012 against the applicant Saroj Mishra and Mahendnrapal in case crime no. 592 of 2012 under section 419, 420, 468, 471, 177 and 181 IPC, on which ACJM, Court no. 2, Budaun has taken cognizance on 2.1.2013 and has issued summons to the applicant and others to appear before it on 28.2.2013 without applying his judicious mind. The entire charge-sheet as well as order dated 2.1.2013 in pursuance thereof, is ex-facie illegal because cognizance taken by the Magistrate is barred under section 195 of Cr.P.C. Even if Mahendrapal has given false statement, the remedy is available to opposite party no. 2 to move application under section 340 Cr.P.C before the court concerned. Even from the perusal of the FIR, no case is made out under the above-mentioned sections and whole proceedings have been initiated only to harass the applicant because opposite party no. 2 had been summoned in complaint case no. 1226 of 2011 and therefore, the present proceedings is nothing but a counter-blast initiated by malafide intention and ulterior motive, which were liable to be quashed. The co-accused Satyaveer had filed an application u/s 482 No.11756 of 2013 which was disposed of by this Court directing that no coercive action shall be taken against him, copy of which is annexed, therefore, it is prayed that the summoning order dated 2.1.2013 passed by ACJM, Court No. 2 Budaun should be quashed. Reliance has been placed on behalf of the applicant in the case of State of U.P. vs. Mata Bhik and others (1994) 4 SCC 95. In this case it is held by Apex Court that the court is barred from taking cognizance of offence under section 195 (1) (a) except on a written complaint by public servant concerned. Private complaint is not maintainable. The successor in the office of the public servant concerned in law is eligible to file a complaint against wrongdoers .

8. It transpires from the above facts that Saroj Mishra W/o Satyaveer (applicant) had filed a Complaint Case no. 1226 of 2011 wherein Saroj Mishra was examined as complainant under Section 200 Cr.P.C., her husband, Satyaveer was examined as P.W.2 under Section 202 Cr.P.C. and Mahendra Pal was examined as P.W.1 under Section 202 Cr.P.C. and, thereafter the trial court had summoned the O.P. No.2 as an accused to face trial under Sections 323, 504, 506 and 527 I.P.C. According to the O.P. No.2, the said summoning was based on false/forged evidence adduced before the trial court because P.W.1, Mahendra Pal was in jail in Crime No. 664 of 2011 under Sections 323, 324, 504, 506 and 3(i)(10) S.C./S.T. Act with effect from 19.07.2011 to 28.07.2011 while date of occurrence of the said complaint was reported to be 27.07.2011, hence it was the version of the O.P. No.2 that some imposter was made to stand before the trial court to make false statement that the O.P. No.2 had caused the occurrence which was witnessed by him, as he could not be present due to his being in jail on the date of occurrence and to prove that, question/answer have been obtained by him which is annexed by O.P. No.2 with Counter-Affidavit as C.A.-I in which it is recorded that the said witness was lying in jail during that period. On the basis of the said evidence, O.P. No.2 has lodged F.I.R. in the present case which is registered as Crime No. 592 of 2012 in which occurrence is shown of 27.07.2011 at 6:10 p.m. with the aid of application under Section 156 (3) Cr.P.C. and after the investigation in the said matter, the charge-sheet has been submitted against the accused applicant along with two others under Sections 419, 420, 168, 471, 177 and 181 I.P.C. It is argued on behalf of accused applicant that cognizance cannot be taken by the trial court on the said charge-sheet because the same is barred by the provisions of Section 195 Cr.P.C., therefore, this Court has to see as to what is provided under the said section and for the sake of convenience the same is reproduced herein below:

13. If I analyse the facts of the present case, I find that according to prosecution version, P.W.1, Mahendra Pal of the Complaint Case No. 1226 of 2011 was found to be in prison on the date of occurrence of the said case i.e. on 27.07.2011, therefore, he could not be present on the scene of occurrence on the said date as according to the documentary evidence given from the side of O.P. No.2 mentioned above, he was reported to be lying in jail from 19.07.2011 to 28.07.2011 and probably, based on this documentary evidence, the charge-sheet has been submitted in the present case that some other person may have been made to stand before the said court at the time when evidence under Section 202 Cr.P.C. was being recorded allegedly as Mahendra Pal. It would be presumed that on the said date, the person who stated before the said court as P.W.1, Mahendra Pal could not be the person who was lying in jail on the said date, hence, some imposter might have stated before the court deposing that he had seen the occurrence of the said case on 27.07.2011, therefore, this statement would be covered in the category of false statement given before the said court and would be covered under the ingredients of offence under Sections 177 and 181 I.P.C., therefore, apparently it appears that the bar of Section 195 Cr.P.C. would be operational in the present case as. In such a matter O.P. No.2 had a course open before him to approach the trial court which had recorded the said evidence and to bring to its notice that some imposter had given statement as P.W.1 in the said case and hence said court should have conduct an enquiry under Section 340 Cr.P.C. and if the said allegation was found to be correct, the said court could have moved a complaint before appropriate forum but instead of this procedure being followed in the present case, O.P. No.2 has straight-way approached the police and lodged an F.I.R. against the accused applicants whereon after investigation, charge-sheet has been submitted and cognizance has been taken by the trial court which appears to be erroneous in view of the said provision of Section 195 Cr.P.C. It may be made clear that however investigation on such a written report of the O.P. No.2 could have been conducted by the police but once charge-sheet was submitted, cognizance could be taken by the trial court only on a complaint made by Court in this matter. I am also of the opinion that whatever evidence has been collected by the I.O. during investigation would only be piece of evidence which could be taken into consideration if in the present case, the prosecution deemed it proper to approach the court concerned to get an enquiry held under Section 340 Cr.P.C. into this matter and, thereafter request the court to lodge a complaint before appropriate forum. It is absolutely clear law that in such a matter only court had the jurisdiction to lodge a complaint after enquiry having been held under Section 340 Cr.P.C. which process does not appear to have been resorted to in the present case. Further reliance has been placed by the learned counsel for the applicant upon State of U.P. Vs. Mata Bhikh Singh and others (1994) 4 SCC 95 of which Para 5 and 6 are quoted hear-in-below:

"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(l)(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) Cr. PC; 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 proceedings 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 Cr.PC. It is of course true 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. Raja Reddy, [1983] 4 SCC 240 : [1983] SCC (Cri) 822 : AIR (1983) SC 1053 on which the High Court HC-NIC Page 38 of 41 Created On Fri Apr 14 01:03:33 IST 2017 relied, has no manners 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 Cr.PC." Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal procedure Code. Once investigation is 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 that procedure laid down in Section 340 Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected. "