CRM No. M-13287 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRM No. M-13287 of 2009 Date of Decision : September 29, 2011 Narender Singh .... PETITIONER Vs. State of Haryana and others ..... RESPONDENTS CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH * * * Present : Mr. Sanjay S. Chauhan, Advocate, for the petitioner. Mr. Shekhar Mudgal, AAG, Haryana. Mr. Jaivir Yadav, Advocate, for respondent No. 3. * * * AUGUSTINE GEORGE MASIH, J. (ORAL) This petition under Section 482 Cr.P.C. is for quashing of FIR No. 110 dated 17.03.2005 under Section 153-A/177/199/200/203 and 500 IPC registered at Police Station City Kaithal and order dated 08.04.2008 passed by the Chief Judicial Magistrate, Kaithal on hearing on the point of charge and finding a prima-facie case of commission of offence under Section 500 IPC, served the petitioner with notice of accusation accordingly CRM No. M-13287 of 2009 2 as also order dated 16.04.2009 passed by the Additional Sessions Judge, Kaithal, dismissing the revision petition preferred by the petitioner. It is the contention of the counsel for the petitioner that the impugned FIR cannot be sustained in the light of the fact that no charges have been framed against the petitioner for any cognizable offence and the only offence, for which the petitioner has been served with notice of accusation vide the impugned orders, is under Section 500 IPC, which is a non-cognizable offence and, therefore, the FIR cannot be sustained. This submission of the counsel for the petitioner cannot be accepted for the reason that on the reading of the FIR, the offences, as alleged in the FIR, are prima-facie made out. The next contention, which has been raised by the counsel for the petitioner challenging the order serving the petitioner with the notice of accusation under Section 500 IPC and dismissing the revision petition preferred by him by the learned Additional Sessions Judge, Kaithal, is that the trial Court having found that the offences under Section 153A, 177 IPC and 200 were not made out against the petitioner but offence under Section 500 IPC was made out as there was sufficient ground to proceed against him. The order cannot be sustained on the ground that none of the cognizable offences alleged to have been committed by him, when FIR was registered, was available for the Magistrate to take cognizance along with which he could take cognizance of the non-cognizable offence under Section 500 IPC. His further contention is that in the light of Section 199 Cr.P.C., the Magistrate could not take cognizanace of the said offence, which falls in Chapter XXI of the Indian Penal Code and a complaint has to be filed by some person aggrieved by the offence. The notice of accusation having been served on the basis of a report submitted by the CRM No. M-13287 of 2009 3 Police under Section 173 Cr.P.C. of which none of the cognizable offences having been found to have been committed by the petitioner on consideration on the point of charge, the said notice of accusation could not be served. Accordingly, he prays for the setting aside of the impugned orders. On the other hand, counsel for the respondents submit that at the stage of presentation of the challan against the petitioner for commission of offences punishable under Sections 153-A, 177, 200 and 500 IPC except for Sections 177 and 500 IPC, all other offences were cognizable. The Court although did not find enough material to proceed against the petitioner under Sections 153-A and 200 IPC as also Section 177 but under Section 500 IPC, material was available and accordingly, the Court has rightly proceeded to issue notice of accusation. It is on this basis, the counsel pray for dismissal of the present petition. Another contention, which has been raised by the counsel for the private respondents, is that the complaint, on the basis of which the FIR was registered, was filed by Sh. Amrik Singh, who was the aggrieved person and, therefore, the Court could have taken the FIR as a complaint and finding material on the basis of the report submitted under Section 173 Cr. P.C., the charge has rightly been framed against him. I have heard the counsel for the parties and have gone through the records of the case. It is correct that the challan was presented against the petitioner under Sections 153-A, 177, 200 and 500 IPC, however, at the stage of framing of charge, the Magistrate did not find enough material on record to proceed against the petitioner for offences, which were alleged to have been committed by him under Sections 153-A and 200 IPC, the CRM No. M-13287 of 2009 4 offences, which were cognizable in nature, as also Section 177 IPC. The material, which was found against the petitioner for which the Magistrate intended to proceed against the petitioner, was under Section 500 IPC, which is a non-cognizable offence and, therefore, the charge under Section 500 IPC could not be framed independently against the petitioner after finding that there was no sufficient material to proceed against the petitioner for any other offence which was cognizable. That apart, for prosecution for defamation, a specific procedure has been prescribed under the Code of Criminal Procedure under Section 199 Cr.P.C. which mandates that the Court cannot take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code, which includes Section 500 IPC, except on a complaint made by some person aggrieved by the offence. Admittedly, no complaint has been filed in the Court by any person. The contention of the counsel for the private respondents that the complaint, on which the FIR was registered, was filed by Amrik Singh- respondent No. 3, who is an aggrieved person, cannot be accepted for the reason that the complaint has to be filed to the Court by the concerned aggrieved person. In any case, if the FIR could have been taken as a complaint, the procedure, as prescribed under Section 200 Cr.P.C., was required to be complied with by the Magistrate before issuing process. It is not in dispute that the said procedure has not been complied with as the complainant has not been examined or his statement recorded by the Court, nor any evidence was recorded on behalf of the complainant. In this situation, the contention of counsel for the private respondents cannot be accepted as the Court could not initiate the process without first examining the complainant upon oath and the witnesses present, if any, not only that, the statement was also required to be signed CRM No. M-13287 of 2009 5 by the complainant and the witnesses, and also by the Magistrate. In this view of the matter, the order dated 16.04.2009 serving the petitioner with the notice of accusation under Section 500 IPC cannot be sustained. It has been held by the Hon'ble Supreme Court in the case of Abdul Rehman Mahomed Yusuff vs. Mahomed Hai Ahmad Agbotwala and another, AIR 1960 Supreme Court 82, that where the requirements of Section 198 (now Section 199) of the Code of Criminal Procedure are not complied with according to the procedure as provided therein, which is mandatory, the Court could not frame charge for the said offence in the absence of a complaint by a proper person. The Hon'ble Supreme Court in the case of Pankaj Aggarwal vs. State of Delhi, JT 2001 (5) SC 233 has also held that when no cognizable offence is made out, for which the Magistrate did not frame charge, for a non-cognizable offence independently where a specific procedure has been provided under the Code of Criminal Procedure, the charge cannot be framed. In view of the above, the present petition deserves to be allowed as the trial Court cannot serve notice of accusation upon the petitioner or frame charge for a non-cognizable offence independent of any other cognizable offence which was alleged to have been committed by him on the basis of which FIR was registered and thereafter challan also presented, when it is found that there is not enough material to serve notice of accusation or frame charge for any cognizable offence against him on consideration of a report submitted by the police under Section 173 Cr.P.C. and when the jurisdiction of the Court to take cognizance of such offence is circumscribed and/or made dependent on some mandated act(s) and/or action(s) by particular person(s) or category of person(s) under the law such as the offences under Chapter XX and XXI of the IPC etc. CRM No. M-13287 of 2009 6 Accordingly, the present petition is allowed. The impugned order dated 08.04.2008 (Anneuxre P-8) passed by the Chief Judicial Magistrate, Kaithal as also order dated 16.04.2009 (Annexure P-9) passed by the Additional Sessions Judge, Kaithal, are hereby set aside. (AUGUSTINE GEORGE MASIH ) September 29, 2011 JUDGE pj