Raghvendra Singh And 2 Others vs State Of U.P. And 3 Others
2019 Latest Caselaw 4590 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
								AFR
 

 
								Court No. - 53
 

 
			Crl. Misc. Writ Petition No.12281/2019
 

 
Petitioners :- 			1. Raghvendra Singh,
 
					2. Ram Lakshman Singh, & 
 
					3. Shailesh Pratap Singh
 
	
 
Respondent :- 			State of U.P. and others
 

 
Counsel for Petitioners :- 	Sangam Lal Kesharwani, Manish 						Kesharwani
 

 
Counsel for Respondent :- A.N. Mulla, A.G.A.
 

 

 
Hon'ble Pankaj Naqvi, J.

Hon'ble Umesh Kumar, J.

Heard Sri V.P. Srivastava, the learned Senior Counsel assisted by Sri Sangam Lal Kesharwani for the petitioners and Sri A.N. Mulla, the learned A.G.A.

This writ petition challenges the order dated 25.4.2019, passed by the Addl. Sessions Judge / F.T.C.-I, Kushinagar at Padrauna, directing for registration of cases against the petitioners and the consequential FIR dated 28.4.2019 as Case Crime No.235/2019, under Sections 195/211/220/323/330/197 IPC, P.S. Taraya Sujan, Kushinagar.

1. Brief facts are as under:-

Petitioner no. 1, the Sub-Inspector, no. 2, the Investigating Officer and no. 3, the Constable of the P.S. concerned on 24.4.2019 allegedly recovered 1.9 kg. of ganja from accused Sarwan Yadav in Case Crime No.230/2019, under Section 8/20 of the N.D.P.S. Act, P.S. Taraya Sujan, Kushinagar. The accused was produced for remand before the Addl. Sessions Judge / F.T.C.-I, Kushinagar (Special Court) on 25.4.2019. The accused informed the court that he had been illegally detained for the last 4 days at the police station where he was subjected to physical torture and the alleged recovery is fake and planted. The medical report of the accused prepared by Dr. Sanjay Kumar, C.H.C., Tamkuhiganj did not indicate any pain or injury. The Special Court physically examined the injuries of the accused and found several injuries on his body and directed the C.M.O., Kushinagar to get the accused examined by a board of 2 doctors for fresh medical examination. The Board examined the accused and reported as many as 17 injuries. The Board opined that out of 17 injuries, injuries nos. 2, 7, 11, 12, 15, 16 & 17 are old, injuries nos. 1, 3, 4, 5, 8, 9 & 14 are 3-5 days old, injury no. 6 is a week old, injury no. 13 is an inflammatory lesion and injuries nos. 5 & 10 are hard blunt trauma. The court below on above materials, was of the view that prima facie the contention of the accused that he was subjected to physical torture in police custody, is made out and while refusing to grant further remand of the accused, directed for his immediate release on personal bond, imposed a penalty of Rs.1000/- each on the petitioners, which was directed to be paid to the accused after deduction from their salary with a simultaneous direction for prosecution against the petitioners under Section 195/211/220/323/330 IPC and under Section 197 IPC against the doctor concerned along with a direction to send a copy of the order to the authorities concerned. Pursuant thereto, respondent no.4 lodged the above FIR against the petitioners, i.e., the Sub-Inspector, the Investigating Officer, the Constable of the police station concerned and the doctor, (non-petitioner).

2. Sri Srivastava, the learned Senior Counsel for the petitioners challenged the correctness of the order dated 25.4.2019 and the FIR dated 24.5.2019 on the ground that Section 195(1) of the Code specifically prohibits that no court shall take cognizance except on a complaint in writing of that court or by any designated officer of the court in respect of the offences specified therein, thus both the order and the FIR are in teeth of the statutory prohibition, same are liable to be quashed.

3. Sri Mulla, the learned A.G.A. submits that it would be in the fitness of things if a direction is given to the complaint magistrate to treat the FIR as a complaint. He had already on the previous date, i.e., 13.5.2019 submitted that considering the nature of issue involved, he does not propose to file any counter affidavit, writ petition be disposed off on available materials.

4. Section 195 of the Code in so far is relevant is extracted hereunder:

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) .......

(ii) ......

(iii) .....

(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) ......

(iii) ......

except on the complaint in writing of that Court, or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other court to which that court is subordinate.

5. The object of Section 195 is to safeguard against irresponsible and reckless prosecution by private individuals in respect of offences which relate to the administration of justice and contempt of lawful authority, i.e., where an act amounts to the offence of contempt of the lawful authority of public servants or to an offence against public justice, private prosecutions are barred and only the court in relation to which the offence was committed may initiate proceedings by way of complaint. Section 195(1)(b)(i) prohibits taking cognizance of the offences under Sections 193 to 196 IPC (both inclusive), 199, 200, 205 to 211 IPC (both inclusive) and 228 IPC 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 other designated officer of the court.

6. To attract the prohibition under Section 195(1)(b)(i) of the Code, it will have to be demonstrated that the alleged specified offences were either committed in the court or in relation to any proceeding in any court (emphasis ours). Admittedly, in the present case, no offence is alleged to have been committed in the court. But the issue is whether it can be said that the offences were committed in relation to any proceeding in any court. The term "any proceeding in any court" under Section 195(1)(b)(i) of the Code came to be examined by the Apex Court in M.L. Sethi vs. R.P. Kapoor and others, AIR 1967 SC 528, wherein it held in paragraphs 13 to 15 as under:

13. ..........

When examining the question whether there is any proceeding in any Court, there are three situations that can be envisaged. One is that there may be no proceeding in any Court at all. The second is that a proceeding in a Court may actually be pending at the point of time when cognizance is sought to be taken of the offence under s. 211, I.P.C. The third is that, though there may be no proceeding pending in any Court in which, or in relation to which, the offence under s. 211, I.P.C., could have been committed, there may have been a proceeding which had already concluded and the offence under s. 211 may be alleged to have been committed in, or in relation to, that proceeding. It seems to us that in both the latter two circumstances envisaged above, the bar to taking cognizance under s. 195(1)(b) would come into operation. If there be a proceeding actually pending in any Court and the offence under s. 211, I.P.C., is alleged to have been committed in, or in relation to, that proceeding, s. 195(1)(b) would clearly apply. Even if there be a case where there was, at one stage, a proceeding in any Court which may have concluded by the time the question of applying the provisions of s. 195(1)(b) arises, the bar under that provision would apply if it is alleged that the offence under s. 211 I.P.C., was committed in, or in relation to, that proceeding. The fact that the proceeding had concluded would be immaterial, because s. 195(1)(b) does not require that the proceeding in any Court must actually be pending at the time when the question of applying this bar arises.

14. In the first circumstance envisaged above, when there is no proceeding pending in any Court at all at the time when the applicability of s. 195(1)(b) has to be determined, nor has there been any earlier proceeding which may have been concluded, the provisions of this sub-section would not be attracted, because the language used in it requires that there must be a proceeding in some Court in, or in relation to, which the offence under s. 211, I.P.C. is alleged to have been committed. In such a case, a Magistrate would be competent to take cognizance of the offence under s. 211 I.P.C., if his jurisdiction is invoked in the manner laid down in s. 190 of the Code of Criminal Procedure.

15. Mr. Frank Anthony on behalf of the appellant urged before us that even in those cases where there may be no pending proceeding in any Court, nor any proceeding which has already concluded in any Court, the bar of s. 195(1)(b) should be held to be applicable if it is found that subsequent proceeding in any Court is under contemplation. We do not think that the language of clause(b) of sub-s. (1) of s. 195 can justify any such interpretation. A proceeding in contemplation cannot be said to be a proceeding in a Court. When there is mere contemplation of starting a proceeding in future, there is no certainty that the proceeding will come into existence. It will always be dependent on the decision to be taken by the person who is contemplating that the proceeding be started; and any interpretation of the law, which will make the applicability dependent on a future decision to be taken by another person, would, in our opinion, be totally incorrect. The applicability of this provision at the sweet will of the person contemplating the proceeding will introduce an element of uncertainty in the applicability of the law; and such an interpretation must be avoided. In this case, apart from this circumstance, the language used clearly lends itself to the interpretation that the bar has been placed by the Legislature only in those cases where the offence is alleged to have been committed in, or in relation to, any proceeding actually pending in any Court, or any proceeding which has already been taken in any Court. There is nothing in the language to indicate that the Legislature also intended to lay down this bar if a proceeding in a Court was still under contemplation and if and when that proceeding is taken, it may be found that the offence alleged to have been committed was, in fact, committed in, or in relation to, that proceeding. In this connection, the question of time when the applicability of this provision has to be determined, assumes importance. It appears to us that at the time when in the present case the Judicial Magistrate at Chandigarh had to determine the applicability of this bar, he could not be expected to come to a decision whether any proceeding in any Court was under contemplation in, or in relation to, which the offence under s. 211, I.P.C., of which he was asked to take cognizance, was alleged to have been committed. In fact, it would be laying on the Magistrate a burden which he could not be expected to discharge properly and judicially as no Magistrate could determine in advance of a proceeding in a Court whether the offence under s. 211, I.P.C., of which he is required to take cognizance, will be an offence which will be found subsequently to have been committed in relation to the contemplated proceeding to be taken thereafter. This interpretation, sought to be placed on this provision on behalf of the appellant, cannot, therefore, be accepted

7. The upshot of the above legal position is that there could be three contingencies which may arise under Section 195(1)(b)(i):-

(i).. where there is no proceeding pending at all,

(ii) where proceedings are pending,

(iii) where proceedings have been concluded.

8. The 1st contengency will not attract the prohibition but the 2nd and 3rd i.e., prosecution relating to specified offences therein would be maintainable only by way of a complaint. The Apex Court in paragraph -15 of the above judgment ruled out the applicability of prohibition in respect of a contemplated proceeding. But once contemplated proceeding is converted "into a proceeding", in a court, the statutory prohibition of Section 195 shall automatically come into operation. What is crucial for applicability of the prohibition under Section 195 of the Code is not the date when the alleged offence under specified offence is committed, rather it is the date on which a complaint / FIR is lodged.

9. Thus, it is immaterial as to when was the recovery effected in the present case. But once a proceeding has been initiated with request for remand in respect of an offence under the N.D.P.S. Act, the bar under Section 195 of the Code shall come into play as the offences under Sections 195/211/197 IPC are alleged to have been committed in relation to a proceeding under the N.D.P.S. Act, pending before the court.

10. The order dated 25.4.2019 does not specifically direct for lodging of an FIR, rather it directs for registering a case which could be interpreted both ways, i.e., FIR / complaint but the illegality crept in when the learned Judge after conducting a preliminary inquiry, instead of remitting the matter to the complaint magistrate as a complaint as envisaged under Section 340 Cr.P.C not only adjudicated the issue but also awarded penalty against the petitioners for an offence which was yet to be established in a court of competent jurisdiction, i.e., before the complaint magistrate, we precisely for these reasons, are not directing the FIR to be treated as complaint before the complaint magistrate.

11. How a prosecution in respect of specified offences under Section 195 of Cr.P.C would proceed, is provided under Section 340 Cr.P.C.

Section 340 of the Cr.P.C. Is extracted hereunder:-

340. Procedure in cases mentioned in section 195.

(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.

(3) A complaint made under this section shall be signed,-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

(4) In this section," Court" has the same meaning as in section 195.

12. From the aforesaid, it is evident that if the court upon an application or otherwise finds it in the interest of justice that an inquiry in respect of offences mentioned in Section 195 of the Code is necessary, the court would make a preliminary inquiry and after such inquiry, record a finding to that effect and make a complaint in writing to the magistrate of 1st class having jurisdiction.

13. In view of above, this petition is disposed off with the following directions:

(i) The order dated 25.4.2019 and the consequential FIR dated 28.4.2019 as Case Crime No.235/2019, under Sections 195/211/220/323/330/197 IPC, P.S. Taraya Sujan, Kushinagar stand quashed.

(ii) The learned Special Court shall reduce the substance of accusation along with the relevant evidence and forward the same to the C.J.M. who shall treat the same as a complaint and endeavour to conclude the same as expeditiously as possible, preferably within 6 months, from the date of receipt of certified copy of the order, in accordance with law.

(iii) The complaint magistrate shall decide the complaint on its own merit, without being influenced by any observation on merits by us, as the same have been made only for a limited purpose.

(iv) Quashing of the order dated 25.4.2019 and its consequential FIR dated 28.4.2019 shall not adversely affect accused Sarwan Yadav in any manner but the disciplinary / departmental proceedings against the petitioners, if any, shall continue.

14.The O.S.D. (Criminal) is directed to immediately send a copy of this order to the court concerned and the Superintendent of Police concerned.

Compliance report be submitted by the complaint magistrate in the Chambers on 25.2.2020 at 4.00 PM.

 
Order Date:- 16.5.2019
 
Chandra			     (Umesh Kumar, J) (Pankaj Naqvi, J)