Jinander Mann vs State And Ors.
2007 Latest Caselaw 352 Del

JUDGMENT

A.K. Sikri, J.

1. Sister of the petitioner, namely, Jayanti was married to Sameer Lathar, respondent No. 2 herein. Respondent No. 3 is the father of the respondent No. 2. However, this marriage went into turmoil. The petitioner's sister lodged FIR under Section 498-A/406 IPC with Police Station Vasant Kunj, New Delhi, against the respondent No. 2, his mother and others and the same is pending trial before the Mahila Court, Patiala House Courts, New Delhi. In the dowry various articles, which were given to the respondent No. 2 included one Opel Astra car bearing registration No. HR-26-F-3817 (hereinafter referred to as the 'said car'). The dispute in the present petition revolves around this car. These dowry articles and the said car were recovered from the possession of the respondent No. 2 and were released on Superdari. The petitioner alleges that on 1.11.2000 he along with his colleagues and friends visited Hotel Broadway, Asaf Ali Road. He had gone there in the said car, which was parked in a parking area opposite Hotel Broadway. However, when the petitioner came out, he found that the said car had been lifted/stolen. He rang up the PCR at telephone No. 100. He also lodged complaint of theft on the basis of which FIR No. 547/2000 under Section 379 IPC was registered with the Police Station Darya Ganj. According to the petitioner, this vehicle was recovered by the police from the possession of respondents No. 2 and 3. The vehicle was again taken on Superdari on 20.11.2000 from the Court of Sh. R.K. Sharma, MM. In the said FIR, respondents No. 2 and 3 also moved anticipatory bail application, which was granted and in this application they had mentioned that the vehicle was recovered from their possession. The police, however, ultimately filed an untraced report. Feeling aggrieved, the petitioner filed a complaint under Section 200 of the Cr.P.C. with a prayer for necessary action against the respondents.

2. On the other hand, respondents No. 2 and 3 alleged that the complaint/FIR was lodged by the petitioner on false averments in which they were roped in malafidely. They accordingly moved complaint under Section 182 IPC. Vide order dated 21.1.2003 summoning orders have been passed in this complaint against the petitioner. At the same time in the complaint filed by the petitioner under Section 200 Cr.P.C., cognizance is taken against the respondent No. 1 by the same order dated 21.1.2003.

3. Challenging the summoning order in the complaint under Section 182 Cr.P.C. the petitioner has filed petition under Section 482 Cr.P.C. The twin submissions made in support of this petition, on the basis of which the petitioner seeks quashing of the summoning order, are:

(a) complaint under Section 182 IPC can be filed only by a public servant and it cannot be entertained at the behest of a private person. Section 182 IPC reads as under:

[182. False information, with intent to cause public servant to use his lawful power to the injury of another person.--Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant--

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

It was submitted that offence under Section 182 IPC relates to giving false information to a public servant. As per the provisions of Section 195 of Cr.P.C., Court could take cognizance of offences against public servants except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.

(b) in the complaint filed by the petitioner under Section 200 Cr.P.C. regarding theft of the vehicle, the learned MM has taken cognizance and summoned the respondent No. 1. It would show that the complaint of the petitioner is not false and, therefore, there was no occasion for the learned MM to initiate proceedings under Section 182 IPC at this stage.

4. Submission of learned Counsel for the respondents, on the other hand, was that Section 195 Cr.P.C. had no application in so far as offence under Section 182 IPC was concerned. His submission was that Section 182 IPC relating to offences 'of contempts of the lawful authority of public servants' was in Chapter 10, whereas Section 195 Cr.P.C. would cover the offences contained in Chapter 20. Learned Counsel submitted that the complaint of theft lodged by the petitioner was palpably false. He pointed out that after the dowry articles and the said car were seized on the complaint of Jayanti and were given to her on Superdari, in those proceedings a compromise had been effected between the parties on 26.9.1998 in the Court. As per this compromise, Jayanti started residing with the respondent No. 2 and the said car was also sent with Jayanti. Jayanti and the respondent No. 2 resided together till 3.3.1999. During this period the said car was used by Jayanti as well as the respondent No. 2. However, the relations between the respondent No. 2 and Jayanti were not on an even keel and Jayanti again went into her matrimonial home on 3.3.1999, while the said car remained with the respondent Nos. 2 and 3. The petitioner knowing fully well that the car is being parked at the residence of the respondent Nos. 2 and 3, made false complaint that he had taken the same to Hotel Broadway from where it was stolen and got it recovered from the respondent Nos. 2 and 3 to make a false case of theft. Learned Counsel submitted that on the basis of evidence produced to show that the car remained in the custody of the respondent No. 2 during this period, the police found that the complaint was false and, therefore, untraced report was submitted. According to the learned Counsel, offence under Section 182 IPC in these circumstances is clearly made out. He further submitted that the complaint could be filed by private person, as in view of Section 198 Cr.P.C., which was applicable in this case, the cognizance could not be taken of an offence punishable under Chapter 20 IPC whereas Section 182 was contained in Chapter 10 IPC. He also submitted that in any case it was a mere irregularity which could be rectified under Section 465 Cr.P.C.

5. In this petition it is not for me to examine as to whether the complaint of theft lodged by the petitioner was false or not. Presuming the same to be false, the question is as to whether complaint under Section 182 IPC can be taken cognizance of at the behest of a private person as done in the instant case. Section 182, as reproduced above, falls in Chapter 10 with the caption 'of contempts of the lawful authority of public servants.' It deals with giving of false information to a public servant with intent to cause such public servant to use his lawful power to the injury of another person. Section 195 Cr.P.C. deals with 'prosecution for contempt of lawful authority of public servant....' We are concerned with Sub-section (1) thereof which is to the following effect:

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offence 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) of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing to whom he is administratively subordinate;

6. It is clear from the reading of this Section that cognizance of any offence punishable under Sections 172 to 188, which would include Section 182 IPC, cannot be taken unless there is a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In view of this, complaint by the respondent Nos. 2 and 3 under Section 182 IPC would clearly be not maintainable. In Daulat Ram v. State of Punjab , the Supreme Court categorically held that prosecution under Section 182 must be on complaint in writing by Tehsildar (public servant) in view of provisions of Section 195 Cr.P.C. The Court in para 3 of the said judgment made the following observations:

The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court must be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of Section 195. The words 'no court shall take cognizance' have been interpreted on more than one occasion and that show that there is an absolute bar against the court taking seisin of the case except in the manner provided by the section.

7. To the same effect is the judgment of the Madya Pradesh High Court in the case of Kishan Gopal v. Purushottam and Anr. 1987 Cr.L.J. 1946 following various Supreme Court judgments in this behalf, including State of Punjab v. Brij Lal Palta . The argument of the respondent Nos. 2 and 3 that in view of provisions of Section 197 Cr.P.C., the respondent No. 2 could file complaint under Section 182 IPC will not have any merit. Section 198 Cr.P.C. deals with prosecution for offences against marriage. In the present case, the complaint filed by the petitioner was regarding the complaint of respondent Nos. 2 and 3 stating that it was a false complaint and had nothing to do with offences against marriage. Merely because there is matrimonial dispute between the respondent No. 2 and Jayanti, namely, petitioner's sister, all and every kind of disputes would not be covered by Section 198. This petition, therefore, has to be allowed on this ground. The complaint filed by respondent No. 2 under Section 182 would not be maintainable and the Court could not have taken cognizance of such a complaint as the respondent Nos. 2 and 3 are not the public servants. The impugned summoning order is accordingly quashed.