Geetika Batra vs O.P.Batra & Anr.
2009 Latest Caselaw 414 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+                   Crl.M.C. 3710/2007

                          Date of decision: February 06, 2009

#     GEETIKA BATRA                      ...... Petitioner
!                   Through : Mr. Pawan Kumar, Advocate
                              Mr. Sheel Kumar, Advocate.


                             Versus


$     O.P. BATRA & ANR                       ...... Respondents
^                   Through : Mr. B.R. Sharma, Advocate.


%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?                   Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                          Yes

                          JUDGMENT

ARUNA SURESH, J.

1. By way of this petition filed under Section 482

Code of Criminal Procedure (hereinafter referred to

as „Cr.P.C.‟) the petitioner Geetika Batra has

assailed the order of the trial court dated

22.08.2007 passed in Complaint Case No.63/1/2006

whereby the petitioner was summoned for offences

punishable under Sections 182/211/499/500 Indian

Penal Code (hereinafter referred to as „IPC‟).

2. Factual matrix of the case is that, petitioner was

married to Rohit Batra on 18.11.2000. Due to

matrimonial disharmony between the two,

petitioner filed a complaint on 27.6.2001 before the

Crime Against Women (CAW) Cell, Ashok Vihar.

The said matter was reconciled somewhere in July

or September, 2001 and thereafter petitioner

started living with her husband; Rohit Batra. A son

was born out of the wedlock of the parties on

21.09.2001. In August, 2002 Rohit Batra got

employment at Bombay and the couple shifted to

Bombay where petitioner lived with him. She came

to Delhi on 25.5.2003 due to alleged cruelties

inflicted upon her by her husband. After coming

back to Delhi, she again filed a complaint with CAW

Cell on 17.7.2003. A day before the petitioner

returned to Delhi, her husband Rohit Batra had

lodged a complaint at Police Station Turbe, Bombay

on 24.5.2003. On receipt of the second complaint

an FIR being FIR No.504/2003 under Sections 498-

A/406/34 IPC was registered at Police Station

Mangolpuri. Accused persons (respondents herein)

applied for anticipatory bail on 06.09.2003 and

they were finally granted anticipatory bail on

8.10.2003.

3. After their release on bail, respondent filed the

impugned complaint on 10.11.2003 against the

petitioner in the trial court for offence punishable

under Sections 182/211/499/500 IPC. The learned

trial court vide its order dated 22.8.2007 took

cognizance of the offence and summoned the

petitioner to face trial as per law.

4. Mr. Pawan Kumar, learned counsel for the

petitioner has urged that the FIR was registered on

the basis of first complaint dated 27.6.2001 as is

apparent from the reading of the FIR and not on

the second complaint filed on 17.7.2003 by the

petitioner and therefore the trial court erred in

observing that there was sufficient material to

establish that petitioner had made a second

complaint before the CAW Cell leveling serious

allegations against the respondents despite her

undertaking dated 13.7.2001 and got an FIR

registered for offences under Sections 406/498-

A/34 IPC levelling almost similar allegations

against the respondents as were levelled in the first

complaint. It is further argued that the trial court

did not adopt right approach in observing that

prima facie it was clear that the petitioner (accused

in the complaint) was habitual of making

complaints against the respondents (complainant)

with a view to compel the respondents to succumb

to her point of view and demands without any

consideration to the seriousness or veracity of her

complaints and consequently summoning the

petitioner to face trial.

5. It is further argued by the learned counsel for the

petitioner that under Section 195 IPC a private

complaint filed by the respondents could not have

been entertained by the Magistrate as he had no

power to take cognizance of an offence punishable

under Sections 172 to 188 IPC except on the

complaint in writing of that court or some other

court to which that court is subordinate where such

offence is alleged to have been committed in, or in

relation to, any proceeding in any court. It is

further submitted that as Magistrate had no

jurisdiction to take cognizance of the said two

offences, a complaint under Sections 499/500 IPC

must also fail. He has referred to „M.L.Sethi vs.

R.P. Kapur & Anr., AIR 1967 SC 528‟;

„Bhagwanti & Ors. vs. Attar Singh,

MANU/DE/0098/1967‟; „Kamlapati Trivedi vs.

State of West Bengal, AIR 1979 SC 777‟;

"Pepsi Foods Lts. & Anr. vs. Special Judicial

Magistrate & Ors., AIR 1998 SC 128"; and

"Daulat Ram vs. Rajinder Motwani, 1992 (3)

Crimes 876".

6. Mr. B.R. Sharma, learned counsel for the

respondents has urged that the provisions of

Section 195 Cr.P.C. are not attracted and do not

apply to the facts and circumstances of the case,

averred in the complaint as no judicial proceedings

were conducted in the FIR and the court had not

taken cognizance of offences under Sections

406/498-A/34 IPC before filing of the impugned

complaint and that, therefore, the respondents

were within their rights to file a complaint against

the petitioner and the court had the jurisdiction to

take cognizance of the offences punishable under

Sections 182/211/499/500 IPC and summon the

petitioner to face trial. He has referred to "CREF

Finance Ltd. vs. Shree Shanthi Homes Pvt. Ltd.

& Anr., AIR 2005 SC 4284", "Abdul Rehman &

Ors. vs. Anees-Ul-Haq & Ors., 2008 III AD

(Delhi) 637" and "Devarapalli

Lakshminarayana Reddy & Anr. vs. V.

Narayana Reddy & Ors., 1976 (3) SCC 252".

7. The short point to be determined by this court is,

whether in this case cognizance of the complaint

which included the offences punishable under

Sections 211/182 IPC filed by the respondents

against the petitioner was rightly taken by the

Magistrate.

8. FIR in question was registered at Police Station

Mangolpuri on 30.08.2003. FIR, therefore, was

registered after second complaint was filed by the

petitioner on 17.7.2003 in CAW Cell. As per this

complaint, the sequence of occurrence of offence

started from 18.11.2002 onwards. First

information from CAW Cell was received at Police

Station on 30.08.2003. Perusal of this FIR clearly

indicate that it is based on the first complaint filed

by the petitioner on 27.6.2001. There is no

reference to the second complaint dated 17.7.2003.

In the FIR the incidents narrated are of the year

2000. In the second complaint, petitioner has

leveled allegations against the respondents and her

husband for the period from 1.8.2001 when she

started living with her husband by virtue of a

compromise, till the period she left the company of

her husband on 25.5.2003 and came back to Delhi,

where after she filed the second complaint dated

17.7.2003. Though, in the second complaint she

has referred to the first complaint at various places

to emphasis upon the mental and physical cruelty

to which she was subjected by her husband Rohit

Batra and the respondents as well as sister-in-law

Smt. Pooja and Pooja‟s husband Shri D.K. Barik.

9. After the registration of the FIR accused named in

the FIR including the respondents filed an

application seeking anticipatory bail in the court of

learned Additional Sessions Judge (ASJ) Delhi on

6.9.2003. Vide order of the even date the learned

ASJ was pleased to grant interim relief to the

respondents till 23.9.2003. On 23.9.2003 interim

protection was further extended to 27.9.2003 and

thereafter to 8.10.2003. On 8.10.2003 respondents

were granted anticipatory bail by the learned ASJ.

During the pendency of the anticipatory bail

application some orders were purportedly passed

by the court directing the Investigating Officer to

operate the locker of the parties in the presence of

the complainant, take out the jewelry articles lying

therein, making inventory of the same and the

court also issued search warrants to enable the

Investigating Officer to execute its order. It was

after disposal of the anticipatory bail application

that complaint was filed by the respondents against

the petitioner for commission of offences under

Sections 182/211/499/500 IPC.

10. In dealing with this question of law, the court has

to keep in mind the important aspect that the

relevant time at which the legality of the

cognizance taken has to be judged is the time when

cognizance is actually taken under Section 190

Cr.P.C., the only provision for taking cognizance of

offences contained in the Cr.P.C. Under Section

190 Cr.P.C. a Magistrate is empowered to take

cognizance of an offence upon receiving a

complaint of facts which constitute such offence,

upon a report in writing of such facts made by a

police officer or upon information received from

any person other than a police officer or upon his

own knowledge or suspicion that such offence has

been committed. A Magistrate, therefore, in

exercise of his power under Section 190 Cr.P.C.

could take cognizance of the offences which

according to him were prima facie made out from

the facts narrated in the complaint. Section 195

which follows Section 190 put some limitations on

the unfettered powers of the Magistrate to take

cognizance of an offence under Section 190. Power

of the Magistrate to take such cognizance is,

therefore, subjected to the provisions contained in

Section 195 Cr.P.C.

11. Section 195 Cr.P.C. being relevant for the purposes

of disposal of this petition is reproduced below:-

"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) 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 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) .....................

(iii) .....................

(2) .....................

(3) In clause (b) of sub-section (1), the term "court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a court for the purposes of this section.

(4) .....................

12. Thus, it is clear that sub Section (1) of Section 195

Cr.P.C. bars a Court from taking cognizance of an

offence specified in clauses (a) and (b) except,

when the stipulations laid down in these clauses

are satisfied. For an offence under Section 211

IPC, there is a mandatory direction to the court not

to take cognizance of any offence punishable under

this Section, 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

such court or of some other court to which such

court is subordinate.

13. Sub-Section (1) of Section 195 Cr.P.C. thus clearly

limits the power of the court to take cognizance

under Section 190 Cr.P.C. Therefore, it is at the

stage when a Magistrate is taking cognizance of an

offence under Section 190 Cr.P.C. that he must

examine the facts of the complaint before him and

determine whether his powers are not limited or

taken away by Section 195 Cr.P.C. The Magistrate

in the present case, was required to examine

whether his power of taking cognizance of the

offences was limited by the provisions of Section

195 (1) Cr.P.C. to determine whether cognizance of

the complaint charging respondents with

commission of an offence under Section 182/211

IPC could or could not have been taken by him as

the said offences were alleged to have been

committed in or in relation to proceedings in a

court. If he found that it was so he was required to

examine if a complaint in writing by such or some

other court to which such court was subordinate

was necessary before he could take cognizance of

the said offences. The Magistrate in this case

failed to examine whether his powers of taking

cognizance of the offence was limited by the

provision of Section 195 (1) Cr.P.C. and whether a

complaint in writing for the alleged offences under

Sections 182/211 IPC was necessary to be filed by

such court or some other court to which such court

was subordinate.

14. Under these circumstances, this court has to

examine whether on the date when cognizance of

the offence was taken by the Magistrate, such

cognizance was barred under Section 195(1)

Cr.P.C. because offences punishable under Section

182/211 IPC were included in the complaint and

were alleged to have been committed by the

respondents in relation to judicial proceedings in a

court of law.

15. There are three situations which are likely to

emerge while examining the question whether

there is any proceedings in any court, namely,

there might not be any proceeding in any court at

all, secondly, proceeding in a court might actually

be pending at the relevant time when cognizance is

sought to be taken of the offence punishable under

Section 211 IPC and thirdly, there might have been

proceedings which had already been concluded

though there might not be any proceedings

pending in any court when cognizance of offence

under Section 211 IPC is taken. It is only in

second and third situation that Section 195 (1)

Cr.P.C. would apply. The fact that proceedings had

been concluded would not be material because

Section 195(1) does not require that proceedings in

any court must actually be pending at the time

when the question of applying the bar arises if the

offence under Section 211 IPC is alleged to have

been committed in relation to those proceedings.

16. Section 195 Cr.P.C. has been intensively

interpreted by the Supreme Court in "M.L. Sethi

Vs. R.P. Kapur & Anr., AIR 1967 SC 528", in

the following manner:-

"11. In the interpretation of this clause (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.

12. There is, of course, no doubt that in the complaint before the Magistrate a charge under s. 211, I.P.C., against the appellant was included, so that the first ingredient clearly existed. The question on which the decision in the present case hinges is whether it can be held that any proceeding in any Court existed when that Magistrate took cognizance. If any proceeding in any Court existed and the offence under s. 211, I.P.C., in the complaint filed before him was alleged to have been committed in such a proceeding, or in relation to any such proceeding, the Magistrate would have been barred from taking cognizance of the offence. On the other hand, if there was no proceeding in any Court at all in which, or in relation to which, the offence under s. 211 could have been alleged to have been committed, this provision barring cognizance would not be attracted at all.

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, 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.

17. Keeping in mind the principles underlying the

provisions of Section 195 Cr.P.C. it is to be seen if

under the facts and circumstances of this case

there were any proceedings before the court after

the registration of the FIR within the meaning of

Section 195 and before filing of the complaint by

the respondents. Admittedly, the charge sheet has

been filed subsequent to the filing of the impugned

complaint and the court took cognizance of the

offences under Section 406/498-A IPC against the

respondents on 28.1.2005. After the registration of

the FIR respondents filed an application seeking

anticipatory bail under Section 438 Cr.P.C. before

the learned ASJ on 6.9.2003. The learned ASJ

adjourned the application for consideration for

23.9.2003 and stayed the arrest of the respondents

to enable the respondents to return the dowry

articles. On 23.9.2003, the learned ASJ while

extending the interim protection granted to the

respondents passed the following order:-

".........Sh. Sharma had handed over the key of the locker to the Investigating Officer at the instruction of the Court.

The IO is instructed to approach the bank authorities and operate the locker and then to recover the dowry articles of the complainant. The articles such as one ginni (gold), one silver katori, one pendel with chain, which belong to Rohit Batra, are to be returned to applicant through the medium of the court, if found there in the locker. Adjd. for recovery of the dowry articles and for disposal of the application for 27.9.03. Till then the applicants be not arrested. Copy of this order be given to the IO so that he may operate the locker for effecting the recovery of the dowry articles."

18. Thus a judicial order was passed directing the

Investigating Officer to approach the bank

authorities and operate the locker, recover the

dowry articles of the complainant, some articles

detailed in the order were ordered to the returned

to the respondents through the medium of the

court, if found in the locker. The interim protection

was extended till 27.9.2003 to ensure that the

Investigating Officer could operate the locker for

effecting recovery of the dowry articles. Hence, a

judicial order indeed was passed by the learned

ASJ.

19. On 27.9.2003 it was reported to the court by the

Investigating Officer that locker was operated

under the instruction of the court from where he

recovered various ornaments and seized them.

Investigating Officer sought further time from the

court for seizure of the remaining articles from

possession of the respondents. The court granted

time to the Investigating Officer to recover the

dowry articles by associating the petitioner with

the directions to the respondents to cooperate in

the recovery. Court was pleased to adjourn the bail

application for 8.10.2003 to ensure recovery of

dowry articles and for disposal. It was when the

court was informed that most of the dowry articles

had been recovered and custodial investigation was

not required that the anticipatory bail application

was allowed.

20. While preparing recovery memo dated 24.9.2003 of

the ornaments recovered from the locker, the

Investigating Officer has specifically referred to the

court‟s order for operation of the locker No.241,

Central Bank, Malviya Nagar and for seizure of the

ornaments lying there. Reference to the directions

is also found in seizure memo dated 6.10.2003

when the house of the respondent O.P. Batra was

searched by the Investigating Officer.

21. Learned counsel for the respondents has submitted

that these proceedings cannot be considered as

proceedings before a court and also that complaint

was filed after the respondents were granted

anticipatory bail, provisions of Section 195 Cr.P.C.

therefore do not create any bar on the jurisdiction

of the trial court to take cognizance of offence

under Section 182/211 IPC. He further argued that

offence under Section 499/500 IPC does not fall

within the ambit of Section 195 Cr.P.C. and the

court, therefore, rightly took cognizance of the

offence and summoned the petitioner.

22. I do not find myself in agreement with the

contentions of the learned counsel for the

respondents.

23. Proceedings before a court do not mean

proceedings conducted in a case filed by the police

or in a private complaint after taking cognizance of

the offences if facts so narrated made out a

cognizable offence to be tried by the Magistrate.

Court proceedings mean any proceedings before a

court of law relating to the subject matter of the

complaint wherein the court passes or is required

to pass a judicial order. The learned ASJ while

considering the anticipatory bail application of the

respondents, not only considered the application

but, also passed judicial orders to ensure the

operation of the locker in the Central Bank,

Malviya Nagar as well as recovery of dowry articles

and other documents from the house of respondent

Mr. O.P. Batra on identification by the complainant.

These proceedings in no manner can be termed as

proceedings conducted during the investigation of

the case. Even if respondents had been granted

anticipatory bail and the proceedings before the

learned ASJ were complete, since the impugned

complaint related to the subject matter of the FIR

in which the respondents had applied for their

release on bail, provisions of Section 195 Cr.P.C.

would bar the jurisdiction of the trial court to take

cognizance of offences under Section 211/182 IPC

on a private complaint filed by the respondents in

the absence of any complaint from the concerned

court where such proceedings were conducted or

by any other court superior to that court.

24. In "Kamlapati Trivedi‟s case (supra) in similar

circumstances where the appellant was released on

bail and a question arose if order releasing the

appellant on bail and the one ultimately

discharging him of offence complained of amounted

to proceedings before a court, it was held that

order releasing the appellant on bail amounted to

proceedings before a court within the meaning of

Section 195 Cr.P.C.

25. In „Daulat Ram‟s case (supra), where an

anticipatory bail application was pending

adjudication, and the Magistrate took cognizance of

the offence on a private complaint it was held that

since the proceedings were pending by way of

petitioner‟s applying for anticipatory bail and the

court had granted anticipatory bail prior to

4.2.1987; the date when Magistrate took

cognizance of the offence made out in the private

complaint, the complaint filed by the complainant

under Section 211 IPC was hit by the provisions of

Section 195 (1) (b) of Cr.P.C.

26. The said complaint was filed by the complainant

not only under Section 211 Cr.P.C. but also under

Section 500 IPC, the entire complaint was found to

be not maintainable.

27. In the present case respondents had applied for

anticipatory bail and were successful in obtaining

anticipatory bail order in their favour from the

court of the learned ASJ in case FIR No.504/2003,

Police Station Malviya Nagar, under Sections 498-

A/406/34 IPC and they filed the impugned

complaint after obtaining the bail order in their

favour. The offence under Section 211 IPC which is

subject matter of the complaint against the

petitioner is said to have been committed in

relation to those proceedings. Both the orders

resulted directly from the information lodged by

the petitioner with the police against the

respondents and other accused persons. Under

these circumstances, there cannot be any other

conclusion except that the said offences must be

recorded as one committed in relation to those

proceedings, the requirement of clause (a) and (b)

of Section 195 Cr.P.C. being fully attracted.

28. In Devarapalli Lakshminarayana Reddy „s case

(supra) where an order was passed by the court

under Section 156 (3) Cr.P.C. directing the police

officers to hold investigation. It was held that the

said order of the Magistrate does not tantamount to

taking of cognizance of an offence by the

Magistrate within the meaning of Section 190 (1)

(a) of Cr.P.C. As the facts are distinguishable, this

case is of no help to the respondents.

29. In „CREF Finance Ltd.‟s case (supra), the court

considered in a private complaint as to at what

stage, the Magistrate can be said to have taken

cognizance of an offence and proceed further. In

this case, since the complaint itself was filed after

the proceedings before the court were complete, I

need not go into the question as to at what stage

cognizance of offence can be taken by the

Magistrate. Admittedly, in this case cognizance was

taken by the court vide impugned order dated

22.8.2007 as is obvious from the last operative

paragraph of the order and the trial court

concluded that prima facie it was clear that

respondent (petitioner herein) was habitual of

making complaints against complainant

(respondents herein) with a view to compel the

respondents to succumb to her point of view and

give into her demands without any consideration to

the seriousness or veracity of her complaints and

prima facie he found sufficient material against the

respondent (petitioner herein) in respect of

offences alleged against her by the complaint.

30. Abdul Rehman & Ors.‟s case (supra) is of no

help to the respondents. In the said case a

complaint was filed by the petitioner against the

respondents with the Crime Against Women Cell

and the respondents and others filed an application

for grant of anticipatory bail in the court of learned

ASJ. Ultimately, the FIR was registered and on

coming to know registration of the FIR, respondent

No.1 filed criminal complaint alleging that the

petitioner had made a false allegation against the

respondents and therefore they should be

summoned for the offences under Section 211/500

IPC read with Section 109/114/34 IPC. It was under

these circumstances that the court observed that

no judicial proceedings whatsoever had taken place

so far in any court of law and the matter was still

pending inquiry investigation. Therefore, it was

observed that offence under Section 211 IPC could

not be said to have been made out and there was

no question of statement of role having been played

by the petitioner for which a complaint could not

have been filed under Section 193 and 195 IPC.

31. In the present case, it was after registration of the

FIR that the respondents had applied for

anticipatory bail wherein some other judicial

proceedings also took place and it was after the

grant of bail that the complaint was filed and

therefore proceedings before the court within the

meaning of Section 195 Cr.P.C. were held. This

has resulted into a complete bar on the jurisdiction

of the court to take cognizance of offence under

Section 211 IPC in a private complaint filed by the

respondents. The Magistrate should have carefully

considered the material before him under the

circumstances of this case to see if the limitation of

Section 195 (1) Cr.P.C. was applicable or not and if

it was applicable if it was necessary for him to see

if any complaint was received from the court

concerned or by any other court superior to the

said court. The order of the trial court does not

reflect that he considered the provisions of Section

195 (1) Cr.P.C. before summoning the petitioner for

offences including offence under Section 211 IPC.

The Magistrate erred in his approach to the facts of

the case and passed the impugned order without

any application of mind.

32. Summoning of an accused in a complaint is a

serious matter and, therefore, the order of the

Magistrate summoning the accused must reflect

that he has applied his mind to the facts of the case

and the law applicable thereto. The Magistrate

failed to examine the nature of allegations made in

the complaint and the evidence both oral as well as

documentary placed on record in support of the

complaint to come to a conclusion if he should

proceed to summon the petitioner for offence under

Sections 182/211/499/500 IPC.

33. Hence, for the reasons stated above, the petition is

allowed. Complaint Case No.63/1/2006 and the

impugned order dated 22.08.2007 passed in the

said complaint are hereby quashed. Petitioner is

accordingly discharged.

Pending applications also stand disposed of.

Attested copy of the order be sent to the trial court.

(ARUNA SURESH) JUDGE February 06, 2009 vk