IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33511 of 2008 Rajeshwar Vishwakarma, Son of late Lakhan Mistri, Resident of Village Pethia Gachhi, PS Samastipur Town, District Samastipur ---- Petitioner Versus The State of Bihar ---- Opposite Party ----------- 3 26.08.2011 This application has been filed for quashing the order dated 10.1.2008, passed by the Chief Judicial Magistrate, Samastipur in G.O. Case No. 3 of 2000, arising out of Non-F.I.R. No. 5 of 2006 dated 1.12.2006 in which cognizance has been taken under Sections 182 and 211 of the Indian Penal Code. A complaint case was instituted by one Rajeshwar Vishwakarma in which it is alleged that while he was in his house, four persons came and took his son Ashok Kumar to the railway station. Ashok Kumar did not return in the night as a result of which his family searched for him and thereafter gave information to the police who refused to lodge any Sanha or F.I.R. The informant apprehended that his son had been kidnapped for the purpose of forcing him into marriage. A complaint was lodged which was later registered as Samastipur Town PS Case No. 518 of 2005. The police after investigation submitted a report for action under Sections 182 and 211 of the Indian Penal Code. The Court accepted the final form and thereafter found material to proceed under Sections 182 and 211 of the Indian Penal Code and took cognizance of the offences aforesaid. Learned counsel for the petitioner has argued that the 2 Court could not have taken cognizance under Sections 182 and 211 of the Indian Penal Code as it is barred by sub-section b(i) of Section 195 of the Code of Criminal Procedure. Section 195 of the Code of Criminal Procedure reads as follows: 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) ofany 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. The scope of Section 195 of the Code of Criminal Procedure is to prevent improper or reckless prosecution by private persons for offences in connection with administrative or public justice and thus relating to the contempt of lawful authority of a public servant. The aim of the section is to give protection to parties and witnesses against vexatious and frivolous prosecution by giving the power to the Court in relation to offences committed 3 during the proceedings pending in the Court. Section 195 of the Code of Criminal Procedure creates a bar on complaints by all and sundry while Section 340 confers exclusive jurisdiction of a Court to file a complaint after satisfying itself prima facie about the correctness of the offences said to have been committed and cover under Clause (b) and (c) of sub-section 1 of Section 195. In the facts of the present case it would appear that on investigation, the Officer Incharge found that the petitioner was guilty of giving false information to a public servant knowing that by giving such information, the public servant could act or do things which it otherwise would not have done and to use the lawful power of such public servant to cause injury or annoyance to any other person and as such recommended proceeding under Section 182 of the Indian Penal Code. Section 211 of the Indian Penal Code on the other hand, envisages that whoever with an 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 such just or lawful ground for such proceeding or charge against that person has committed an offence under Section 211 of the Indian Penal Code. One of the leading case on this issue is the case of M.L. Sethi Vs. R.P. Kapur [A.I.R. 1967 SC 528]. The facts were that on 10.12.1958 M.L. Sethi lodged a report with the Inspector General of Police, Chandigarh against R.P. Kapur for offences under Sections 420, 109, 114 and 120-B of the Indian Penal Code. 4 On 11.4.1959, R.P. Kapur filed a complaint in the Court of the Judicial Magistrate, 1st Class, Chandigarh against M.L. Sethi for commission of offences under Sections 204, 211 and 385 of the Indian Penal Code. Both these cases were transferred to the Additional District Magistrate, Saharanpur. The case against the respondent and his mother-in-law was based on the First Information Report ended in an order of discharge passed by the High Court of Allahabad on December 10, 1962. On July 18, 1959 for the first time, that the respondent was arrested in connection with that report and the Challan by the police, and was presented to the Court on July 25, 1959. There was no material to show that between December 10, 1958 when the First Information Report was lodged and July 18, 1959 when the respondent was arrested in connection with the case, there was, at any stage, any order passed by any Magistrate in connection with the investigation. The revisions before the Sessions Judge, and the High Court, arose out of two orders passed by the Additional District Magistrate on 6.8.1963 and 5.10.1963. The first order was made on an application presented by the appellant on May 6, 1963 in which he contended that no offence was disclosed on the allegations made in the complaint and on the statement of the complainant recorded by the Magistrate at Chandigarh, and further, that, in any case, the trial was barred on account of want of requisite previous sanction as provided in Section 195 of the Code of Criminal Procedure. While discussing these issues the Supreme Court has considered all decisions previously rendered on this point in some 5 detail. The Apex Court came to a conclusion that section 195 of the Code of Criminal Procedure is a limitation on the unfettered power of a Magistrate to take cognizance under Section 190 of the Code of Criminal Procedure. The Magistrate is specially empowered to take cognizance (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police-officer; and (c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion that such offence has been committed. Section 195 of the Code of Criminal Procedure bars the Court from taking cognizance of an offence under Section 211 of the Indian Penal Code in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such court is subordinate. Therefore, this provision bars taking of cognizance if all the following circumstances exist viz….. (1) that the offence in respect of which the case is brought falls under Section 211 of the Indian Penal Code; (2) that there should be a proceeding in any Court; and (3) that the allegation that the offence under Section 211 of the Indian Penal Code was committed in, or in relation to, such a proceeding. Unless all the three ingredients exists, the bar under Section 195(1)(b) against taking cognizance by the Magistrate except on a complaint in writing of a Court, will not come into operation. The Supreme Court while dealing with the facts of the case has observed, that it cannot be doubted, that at the stage when cognizance was taken by the Judicial Magistrate on 11.4.1959, the only proceeding that was going on, was the investigation by the 6 police on the basis of the First Information Report lodged on 10.12.1958. There is no mention of any proceeding pending in any Court with respect to the First Information Report. It was observed that there can be three situations that can be envisaged. One is that there may be no proceeding in any Court at all. The second is that the proceeding in a Court may actually be pending at the point of time when cognizance is sought to be taken of the offence under Section 211 of the Indian Penal Code. The third is that though there may be a proceeding pending in any Court in which or in relation to, which the offence under Section 211 of the Indian Penal Code could have been committed, there may have been a proceeding which had already concluded and the offence under Section 211 of the Indian Penal Code may be alleged to have been committed, in or in relation to, the proceeding. The Court concluded in the latter two circumstances envisaged, the bar to take cognizance under Section 195(1)(b) of the Code of Criminal Procedure would come into operation, but if there is no proceeding pending in the Court the bar would not apply. In the first circumstance as envisaged above when there is no proceeding pending in any Court at all at the time when the applicability of Section 195(1)(b) has to be determined nor has there been any earlier proceeding which have been concluded the provisions of this sub-section would not be attracted because the language used requires that there must be a proceeding in some Court in relation to which the offence under Section 211 of the Indian Penal Code is alleged to have been committed. 7 While concluding as aforesaid, the Supreme Court has taken into consideration the facts and the law of the following cases: Ghulam Rasul Vs. Emperor (AIR 1936 Lahore 238), Balak Ram Vs. Emperor (AIR 1942 Oudh 100), Ramdeo Vs. State (AIR 1962 Rajasthan 149), Har Prasad Vs. Hans Ram (AIR 1966 Allahabad 124), Gati Mandal Vs. Emperor [(1906) 4 Cri.L.J. 68 (Cal)], Fakir Mahomed Vs. Emperor (27 Cri.L.J. 1105), Gunamony Sapui Vs. Queen Empress [(1899) 3 Cal WN 758], apart from many other decisions. In all fairness, this Court must also refer to the cases cited by the counsel for the petitioner in order to substantiate his point. The first case is Kamlapati Trivedi Vs. State of West Bangal [A.I.R. 1979 S.C. 777] and a judgment of this Court in the case of Gopal Prasad Vs. The State of Bihar & Ors. ( 1995 (1) BLJ 682). The facts in both these cases were different to the present case. In the case of Kamlapati Trivedi (supra) the facts are as follows: “A complaint was registered by one T against P and others at the police station for certain offences under Penal Code. Warrants were issued for the arrest of the accused all of whom surrendered on 6-5- 1970 before the Court of Sub-Divisional Judicial Magistrate who was the Magistrate having jurisdiction and who passed an order releasing them on bail. The police held an investigation culminating in a report which was submitted to the SDJM under S. 173. The contents of the report made out the complaint to be false and included a prayer that the accused “may be released from the charge.” On the 31st of July, 1970 the SDJM, agreeing with the report, passed an order discharging the accused. Thereafter P filed a complaint before the SDJM accusing T of the commission of offences under Ss. 211 and 182 of the Penal Code by reason of the latter having 8 lodged with the police the false complaint. T appeared in the Court of the SDJM in response to a summons issued by the latter only in respect of an offence under S. 211 of the Penal Code and was allowed a fortnight to furnish security while the case itself was adjourned. T presented a petition to the High Court at Calcutta praying that the proceedings pending against him before the SDJM be quashed inasmuch as the latter was debarred from taking cognizance of the offence under section 211 in the absence of a complaint in writing of the SDJM himself in view of the provisions of clause (b) of S. 195 (1), Cr.P.C.” In the aforesaid facts, the Court held that the complaint against T was in respect of an offence alleged to have been committed in relation to a proceeding in Court and that in taking cognizance of it the Sub-divisional Judicial Magistrate acted in contravention of the bar contained in Clause (b) of Section 195 (1), of the Code of Criminal Procedure as there was no complaint in writing either of the Sub-divisional Judicial Magistrate or of a superior Court. It would thus be different that when the complaint was pending, it would only be within the power of the Court to file a complaint under Sections 182 and 211 of the Indian Penal Code, if the Court had concluded that the complaint filed was with the purpose of giving false information in order to cause injury to another person and for the purpose of making false charges against a person in order to injure him. The facts of the present case, as stated above, are different inasmuch there is no proceeding pending in the Court below. Basically there is a difference between the case instituted in the police station investigated by a Police Officer who may come to a conclusion that the case is completely false and, therefore, recommends proceeding under Sections 211 and 182 of 9 the Indian Penal Code and a complaint case filed in Court. If a complaint is filed, then it must be understood that there is a proceeding pending in the Court. In such circumstances only the Court concerned can file a case under Section 182 or/and 211 of the Indian Penal Code. In a case where a First Information Report is instituted, it cannot come within the purview of proceeding pending in the Court and, therefore, there is distinction in the law laid down in the case discussed earlier i.e. M.L. Sethi (supra) and the case of Kamlapati Trivedi (supra). Similar, are the facts in the case of Gopal Prasad (supra), a complaint was filed before the Chief Judicial Magistrate. The accused in the aforesaid case filed a complaint against the complainant in the first case alleging an offence under Section 211 of the Indian Penal Code. The Court under the aforesaid circumstances relying on 1979 SC 777 held that the complaint filed on behalf of the accused was barred by sub section (b) of Section 195 of the Code of Criminal Procedure. On the basis of the a foresaid decisions and the decisions rendered in subsequent cases by the Supreme Court, this Court comes to the conclusion that the order impugned taking cognizance of the offence under Sections 182 and 211 of the Indian Penal Code was in accordance with law and would not be barred by the provisions of sub section (b) (i) of Section 195 of the Code of Criminal Procedure. As stated earlier, sub section (b) (i) of Section 195 of the Code of Criminal Procedure would only come into play when an offence under Sections 182 and 211 of the Indian Penal 10 Code is committed in a proceeding which is pending in the Court, it is only in those circumstances that the bar comes into play and the Court has to file the complaint if, it is so satisfied with respect to the offence allegedly committed in its Court or any other Court. This application is thus, dismissed. Sanjay/A.F.R. ( Sheema Ali Khan, J.)