Bombay High Court
Shri. Kishore S/O Vitthalrao ... vs Shri. Harishchandra S/O Nagorao ... on 27 April, 2016
Bench: Z.A. Haq
1 revn162.12 & wp714.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.162 OF 2012
Shri Harishchandra s/o Nagorao Mohod,
Aged about 41 years,
Occupation - Private Job,
R/o Ridhora, Tahsil Katol, District-
Nagpur. ig .... APPLICANT
VERSUS
Shri Kishor s/o Vitthalrao Padole,
Aged about 53 years,
Occupation - Electric Contractor,
Resident of Badkas Chowk,
Ayachit Mandir Road, Nagpur. .... NON-APPLICANT
______________________________________________________________
Shri Ramesh Mohod, Advocate for the applicant,
Shri A.R. Prasad, Advocate for the non-applicant.
______________________________________________________________
AND
CRIMINAL WRIT PETITION NO.714 OF 2013
Shri Kishor s/o Vitthalrao Padole,
Aged about 52 years,
Occupation - Electric Contractor,
Resident of Badkas Chowk,
Ayachit Mandir Road, Nagpur. .... PETITIONER
VERSUS
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2 revn162.12 & wp714.13
1) Shri Harishchandra s/o Nagorao Mohod,
Aged about 40 years,
Occupation - Private Job,
R/o Ridhora, Tahsil Katol, District-
Nagpur.
2) The State of Maharashtra,
through the Police Inspector,
Police Station Kondhali, District Nagpur. .... RESPONDENTS
______________________________________________________________
Shri A.R. Prasad, Advocate for the petitioner,
Shri Ramesh Mohod, Advocate for the respondent No.1.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATE OF RESERVING THE JUDGMENT
: 18-03-2016
DATE OF PRONOUNCING THE JUDGMENT : 27-04-2016
ORAL JUDGMENT :
1. The applicant in Criminal Revision Application
No.162/2012 is hereinafter referred to as "the applicant" and the non-
applicant in Criminal Revision Application No.162/2012 is hereinafter
referred to as "the non-applicant".
2. Heard Shri Ramesh Mohod, Advocate for the applicant
and Shri A.R. Prasad, Advocate for the non-applicant.
3 revn162.12 & wp714.13
3. The applicant filed complaint under Section 200 of the
Code of Criminal Procedure praying that the non-applicant be
punished for the offence punishable under Section 211 of the Indian
Penal Code, on the following accusations :
The applicant who is Graduate in Arts and having
experience of agricultural operations was employed as Diwanji with
the non-applicant, however, as the requests made by the applicant
about his needs were not taken cognizance of by the non-applicant, the
applicant had left the employment of the non-applicant in October
2010 and taken up employment as Diwanji with Shri Vijaykumar Jain
who owned agricultural field adjoining to the field of the non-
applicant. Due to this, the non-applicant was not happy.
On 16-12-2010 at 5.00 p.m., when the applicant was
working in the field of Shri Vijaykumar Jain, policemen arrested the
applicant. It was made known to the applicant that report was lodged
against the applicant and the non-applicant had given statement to the
police that 14 bags of Soyabean seeds worth Rs.20,000/- were stolen
fraudulently from his field and the non-applicant suspected that the
applicant had committed the theft. The applicant was kept in custody
in the police station from 6-00 p.m. and he was produced before the
learned Magistrate, Katol on 17-12-2010 at 11-00 a.m. The charge-
4 revn162.12 & wp714.13
sheet was submitted before the Court on 27-01-2011 against some
other persons and it was pointed out by the police that the applicant
was not concerned with the offence and discharge report was
submitted in favour of the applicant. The learned Magistrate accepted
the report and discharged the applicant from the offence, on
27-01-2011.
On the above accusations, the applicant contended that
the non-applicant had filed false complaint against the applicant with
the intention of causing harm and injury to the applicant. The
applicant prayed that the non-applicant be prosecuted and punished
for offence under Section 211 of the Indian Penal Code.
4. The learned Magistrate recorded statement of the
applicant and after being satisfied that the applicant has made out
prima-facie case, by the order dated 01-04-2011, directed issuance of
process for offence under Section 211 of the Indian Penal Code.
The non-applicant, being aggrieved by the above order,
filed Criminal Revision Application No.57/2012 before the Sessions
Court. The learned Additional Sessions Judge, relying on the
judgment given by this Court in the case of Subhash Ramchandra
Durge vs. Deepak Annasaheb Gat and another reported in 2000
5 revn162.12 & wp714.13
Cri.L.J. 4774, concluded that the complaint filed by the applicant
praying that the non-applicant be prosecuted and punished for offence
under Section 211 of the Indian Penal Code, was not maintainable at
the behest of the applicant-private person. The learned Additional
Sessions Judge recorded that the complaint for offence under Section
211 of the Indian Penal Code has to be filed by the concerned Court.
In view of the above conclusions, the learned Additional Sessions
Judge recorded that the order passed by the learned Magistrate
directing issuance of process for offence under Section 211 of the
Indian Penal Code, was not sustainable.
The learned Additional Sessions Judge, however, recorded
that considering the allegations made by the applicant against the
non-applicant in the complaint, prima-facie it appeared that the non-
applicant can be prosecuted for offence under Section 500 of the
Indian Penal Code and accordingly modified the order passed by the
learned Magistrate and concluded that the process has to be issued
against the non-applicant for offence under Section 500 of the Indian
Penal Code.
The applicant, being aggrieved by the order passed by the
learned Additional Sessions Judge, setting aside the order passed by
the learned Magistrate, has filed this revision application.
6 revn162.12 & wp714.13
The non-applicant, being aggrieved by the order passed by
the learned Additional Sessions Judge to the extent it directs issuance
of process for offence under Section 500 of the Indian Penal Code, has
filed Criminal Writ Petition No.714/2013.
As the same order is challenged in these two matters, both
matters are disposed by this common judgment.
5. The point which is required to be dealt with is :
"Whether the complaint filed by the applicant against the non-
applicant praying that the non-applicant be tried and convicted for
offence under Section 211 of the Indian Penal Code is maintainable at
the behest of the applicant or such complaint is required to be filed by
the Court or by such officer of the Court as that Court may authorise in
writing in that behalf."
6. Shri Ramesh Mohod, Advocate for the applicant has
submitted that the learned Additional Sessions Judge has committed
an error in concluding that the complaint filed by the applicant is not
maintainable in view of the provisions of Section 195(1)(b)(i) of the
Code of Criminal Procedure. The learned Advocate has relied on the
judgment given by the Hon'ble Supreme Court in the case of M.L.
7 revn162.12 & wp714.13
Sethi vs. R.P. Kapur and another reported in AIR 1967 SC 528 and
has submitted that one of the condition necessary to attract the bar of
Section 195(1)(b) of the Code of Criminal Procedure is that the
offence under Section 211 of the Indian Penal Code has to committed
in pending proceeding. It is submitted that the bar of Section 195(1)
(b) of the Code of Criminal Procedure would not be attracted if there
was no proceeding before the Court when the offence under Section
211 of the Indian Penal Code is committed. It is submitted that the
non-applicant committed the offence on 16-12-2010 and on that date,
there were no proceedings before Court. It is submitted that the
learned Additional Sessions Judge has failed to appreciate this aspect
and therefore, the impugned order passed by him is unsustainable.
The learned Advocate for the applicant has opposed the
challenge raised on behalf of the non-applicant to the order passed by
the learned Additional Sessions Judge directing issuance of process
under Section 500 of the Indian Penal Code and has submitted that on
the basis of the material on record if the Court finds that some other
offence is made out, it is always open to the Court to prosecute and
convict the accused for that offence also. It is prayed that the Criminal
Revision Application No.162/2012 be allowed and the Criminal Writ
Petition No.714/2013 be dismissed.
8 revn162.12 & wp714.13
7. Shri A.R. Prasad, learned Advocate for the non-applicant
has submitted that the learned Additional Sessions Judge has rightly
adverted to the points and the conclusions of the learned Additional
Sessions Judge that the complaint filed by the applicant against the
non-applicant for offence under Section 211 of the Indian Penal Code
is not maintainable, cannot be faulted with. It is submitted that the
conclusions of the learned Additional Sessions Judge are in line with
the law laid down in the following judgments:
1) Judgment given by the Hon'ble Supreme Court in the case of
Kamlapati Trivedi vs. State of West Bengal reported in
(1980)2 SCC 91.
2) Judgment given by the Hon'ble Supreme Court in the case of
Subhash Ramchandra Durge vs. Deepak Annasaheb Gat and
another reported in 2000 Cri.L.J. 4774.
It is submitted that the learned Additional Sessions Judge has
acted beyond jurisdiction in directing issuance of process for offence
under Section 500 of the Indian Penal Code. The learned Advocate
has submitted that there is no material on the record to show that the
non-applicant can be prosecuted for offence under Section 500 of the
Indian Penal Code. It is further submitted that the learned Additional
Sessions Judge could not have modified the order passed by the
9 revn162.12 & wp714.13
learned Magistrate and could not have directed issuance of process for
offence under Section 500 of the Indian Penal Code while deciding the
revision application filed by the non-applicant. Shri A.R. Prasad,
Advocate has submitted that the effect of the order directing issuance
of process against the non-applicant for offence under Section 500 of
the Indian Penal Code is that the learned Additional Sessions Judge
has acted as Court of first instance while exercising the revisional
jurisdiction and this is not permissible.
It is prayed that the Criminal Revision Application
No.162/2012 be dismissed and Criminal Writ Petition No.714/2013 be
allowed.
8. I have examined the documents filed by the parties on
record, with the assistance of the learned Advocates representing the
respective parties and have gone through the judgments relied upon.
The point which is required to be adverted to is dealt with
in the judgment given in the case of M.L. Sethi vs. R.P. Kapur and
another. In this case, a report was filed on 10-12-1958 with the police
authorities complaining about commission of offences punishable
under Sections 420, 109, 114 and 120-B of the Indian Penal Code, on
the basis of which investigation was started. The accused was arrested
10 revn162.12 & wp714.13
on 18-07-1959 in connection with the report dated 10-12-1958 and
was presented before the Court on 25-07-1959. However, this
proceeding culminated in discharge of the accused by the order passed
by the High Court of Allahabad on 10-12-1962. But before the
arrest of accused on 18-07-1959 and the filing of the charge-sheet on
25-07-1959, on 11-04-1959 the accused had filed complaint before the
Court of Judicial Magistrate First Class, Chandigarh against the
informant, for offences under Sections 204, 211 and 385 of the Indian
Penal Code. In these proceedings, an order directing issuance of
summons was passed. The order directing issuance of summons was
maintained by the Sessions Court and the High Court. The orders
were challenged before the Hon'ble Supreme Court. The challenge
was that the complaint for offence under Section 211 of the Indian
Penal Code was not maintainable at the behest of private person in
view of the bar created by Section 195(1)(b) of the Code of Criminal
Procedure.
While dealing with the challenge, the Hon'ble Supreme
Court considered the facts of the case and recorded that as per the
complaint filed for offence under Section 211 of the Indian Penal
Code, when the offence was committed, there were no proceedings
before any Court and therefore, the bar created by Section 195(1)(b)
11 revn162.12 & wp714.13
of the Code of Criminal Procedure was not attracted.
9. According to the applicant, the offence under Section 211
of the Indian Penal Code is committed by the non-applicant on
16-12-2010 when he got the report lodged and gave false statement
against the applicant. According to the applicant, the cause of action
for filing the complaint against the non-applicant arose on 16-12-2010
when the applicant was detained in custody because of the false report
made by the non-applicant. On 16-12-2010 no proceedings were
pending before the Court.
Section 195(1)(b)(i) & (ii) of the Code of Criminal
Procedure read 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) -------------
(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) 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
12 revn162.12 & wp714.13
committed in respect of a document produced or given in
evidence in a proceeding in any Court, or.
(iii)----------------------------"
The Hon'ble Supreme Court has dealt with the point in
paragraph No.11 of the judgment given in the case of M.L. Sethi vs.
R.P. Kapur and another (cited supra) as follows :
"In the interpretation of this Cl. (b) of sub-s. (1) of S.
195, considerable emphasis has been laid before us on
the expression "in, or in relation to", and it has been
urged that the use of the expression "in relation to"
very considerably widens the scope of this Section and
makes it applicable to cases where there can even in
future be a proceeding in any Court in relation to
which the offence under S. 211, I.P.C., may be alleged
to have been committed. A proper interpretation of
this provision requires that each ingredient in it be
separately examined. 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 S. 211 I.P.C.; (2) that there
should be a proceeding in any Court; and (3) that the
allegation should be that the offence under S. 211 was
committed in, or in relation to, such a proceeding.
Unless all the three ingredients exist, the bar under S.
195 (1) (b) against taking cognizance by the
Magistrate, except on a complaint in writing of a
Court, will not come into operation. In the present
case also, therefore, we have to see whether all these
three ingredients were in existence at the time when
the Judicial Magistrate at Chandigarh proceeded to
take cognizance of the charge under S. 211, I.P.C.
against the appellant."
13 revn162.12 & wp714.13
The Hon'ble Supreme Court recorded that on the date on
which offence punishable under Section 211 of the Indian Penal Code
was committed as alleged, there were no proceedings in any Court
and, therefore, the bar created by Section 195(1)(b) of the Code of
Criminal Procedure would not be attracted. In that case, complaint
praying that the accused be punished for offences punishable under
Sections 204, 211 and 385 of the Indian Penal Code was filed on 11 th
April, 1959 and till that time the accused was neither arrested nor
produced before the Court.
10. In the present case, complaint is filed praying that the
accused be prosecuted and punished for the offence punishable under
Section 211 of the Indian Penal Code on 19 th March, 2011 and prior to
that the complainant was arrested on 16 th December, 2010 on the basis
of the report lodged against him, the complainant was produced before
the Magistrate on 17th December, 2010, the charge-sheet was filed
before the Court on 27 th January, 2011 and the police submitted the
proposal on the basis of which the complainant was discharged on 27 th
January, 2011. Thus, in the present case, the complaint is filed after
the proceedings in relation to which the offence is alleged to have been
committed, culminated.
14 revn162.12 & wp714.13
In the judgment given in the case of M.L. Sethi vs. R.P.
Kapur and another (cited supra), in paragraph No.13 it is laid down
as follows:
"13. In this case, as we have already indicated when
enumerating the facts, the complaint of which cognizance
was taken by the Judicial Magistrate at Chandigarh was filed
on April 11, 1959, and at that stage, the only proceeding
that was going on was investigation by the Police on the basis
of the First Information Report lodged by the appellant before
the Inspector-General of Police on December 10, 1958. There
is no mention at all that there was at that stage any
proceeding in any Court in respect of that F.I.R. 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 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
15 revn162.12 & wp714.13
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."
11. The point which falls for consideration is covered by the
proposition laid down in the judgment given in the case of M.L. Sethi
vs. R.P. Kapur and another (cited supra). The applicant alleges that
non-applicant committed offence under Section 211 of Indian Penal
Code by giving false statement and the applicant was arrested and
produced before Court. Thus, the proceedings were taken up in Court,
before the applicant filed the complaint. Therefore, the bar created by
Section 195(1)(b) of the Code of Criminal Procedure will be attracted
and the learned Magistrate could not have taken cognizance of the
complaint praying that the accused be convicted for the offence under
Section 211 of the Indian Penal Code, on the complaint of the
applicant. The order passed by the Sessions Court on this aspect is
proper and does not require any interference.
12. However, the learned Additional Sessions Judge has
committed an error in directing the issuance of process against the
non-applicant for the offence under Section 500 of the Indian Penal
16 revn162.12 & wp714.13
Code. The learned Additional Sessions Judge while exercising the
revisional jurisdiction could not have directed the issuance of process
for the offence under Section 500 of the Indian Penal Code. In the
circumstances of the case, after the learned Additional Sessions Judge
prima facie found that the averments made in the complaint make out
some other offence, the learned Additional Sessions Judge could have
remitted the matter to the learned Magistrate for applying his mind on
the point as to whether the process is required to be issued against the
non-applicant for some other offence.
13. In my view, the interests of justice would be sub-served by
passing the following order:
(i) The order passed by the learned Additional Sessions Judge
setting aside the order passed by the learned Magistrate
directing the issuance of process against the accused for
the offence punishable under Section 211 of the Indian
Penal Code is maintained.
(ii) The order passed by the learned Additional Sessions Judge
directing the issuance of process against the accused for
the offence punishable under Section 500 of the Indian
17 revn162.12 & wp714.13
Penal Code is modified.
The matter is remitted to the learned Magistrate for
considering as to whether the averments made in the
complaint filed by Harishchandra Nagorao Mohod make
out any other offence against Kishor Vitthalrao Padole and
to pass appropriate orders.
(iii)
Criminal Revision Application No.162/2012 filed by
Harishchandra Nagorao Mohod is dismissed.
(iv) Criminal Writ Petition No.714/2013 filed by Kishore
Vitthalrao Padole is partly allowed.
(v) In the circumstances, the parties to bear their own costs.
JUDGE
pma/tambaskar
