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1976 DIGILAW 392 (ALL)

BABU RAM v. RAM NATH AND A

1976-05-20

J.L.SINHA

body1976
J. M. L. SINHA, J. This is an application under Sec. 482 of the Code of Criminal Procedure filed by Babu Ram and Smt. Ram Sakhi praying that the proceedings under section 211 I. P. C. (Case No. 345 of 1969) pending before the Munsif Magistrate, Mainpuri, be quashed. 2. The facts leading up to this application can briefly be stated as under :- 3. On the night between 16th and 17th of June, 1969 Smt. Ram Sakhi (hereinafter to be called Applicant No. 2) filed a report at P. S. Bhogaon, District Mainpuri, against opposite party No. 1 and others alleging that they had abducted her husband, applicant No. 1. A case under section 365 I. P. C. was registered on the basis of that report and investigation followed. During the course of investigation opposite party No. 1 was arrested along with two other persons, namely, Banwari and Badal. They were later released on bail. On 23rd of June, 1969 Babu Ram, applicant No 1, was recovered at Badaun from the custody of some other persons. Thereupon the police submitted a final report under section 169, Cr. P. C. In the meantime applicant No. 1. Babu Ram, filed a complaint on 28th of July, 1969, under section 364, I. P. C against opposite party No. 1 and two others. The learned Magistrate, before whom the complaint was filed, took cognizance of the same and summoned the accused. When the aforesaid complaint and the final report were pending in the court of the Magistrate, the opposite party No. 1 filed a complaint on 16th of September, 1969, against the applicants alleging that the applicant No. 1 lodged a false report against him under sec. 364, I. P. C. and that the applicant No. 1 in collusion with applicant No. 2 had concealed himself some where to facilitate investigation being taken on that false report. In the hearing of the complaint the offence charged is mentioned as sec. 211 I. P. C. In the body of the complaint, however, the offence is not specified. The allegations in the report can, however, either fall under section 182, I. P. C. or section 211, I. P. C. Since the complaint filed by Babu Ram and the final report submitted by the police were yet pending, this complaint was consigned to the record room. The allegations in the report can, however, either fall under section 182, I. P. C. or section 211, I. P. C. Since the complaint filed by Babu Ram and the final report submitted by the police were yet pending, this complaint was consigned to the record room. On 24th of April, 1972 the opposite party No. 1 and other co-accused were discharged in the complaint case and the final report submitted by the police was accepted. Thus the complaint filed by Babu Ram as well as final report submitted by the police were disposed of on 24th of April, 1972. Thereafter the complaint filed by the opposite party No. 1 reviewed and cognizance was taken by the learned Magistrate on that complaint on 5th of January, 1973. The complaint was later transferred to the court of Munsif Magistrate, Mainpuri, and an objection was taken before him on behalf of the applicants that the complaint was barred by section 195 (1) (b) of the Code of Criminal Procedure. The objection did not find favour with the learned Magistrate and was rejected on 13th of June, 1974. The applicant then went up in revision before the Sessions Judge, which was rejected, inter alia, on the ground that the order being an interlocutory nature, no revision could lie against it. Dissatisfied with it, the applicants have preferred this application. 4. The sole question for consideration in this case is whether the complaint filed by opposite party No. 1 is barred by section 195 of the Code of Criminal Procedure (old ). 5. The complaint is styled to be one under section 211, I. P. C. According to the allegations contained therein, however, it can fall rither under section 182 or under section 211 I. P. C. The learned counsel for the State urged that it is open to the Magistrate to charge the applicants, on the basis of the facts contained in the complaint, of an offence under section 182 of the Code of Criminal Procedure instead of 211, I. P. C. I do not think, however, this argument can be of any help whatsoever to the State, for, if the facts alleged in the complaint constitute an offence under section 182, I. P. C. the complaint would be clearly barred by section 195 (1) of the Code of Criminal Procedure, which reads as follows.- " 195. (1) No court shall take cognizance- (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate. " 6. There is no controversy before me about the fact that the report was lodged by applicant No. 2 at police station Bhogaon. In view of the mandatory language contained in section 195 (1) (a), therefore, the complaint for the offence under section 182, I. P. C. could only be filed either by the Station Officer Police, Station Bhogaon, or an officer superior to him in rank. The opposite party No. 1 could not himself file a complaint for the offence under section 182, I. P. C. 7. It is next to be considered as to what would be the position, if it is assumed that the facts alleged in the complaint filed by opposite party No. 1 constitute an offence under section 211, I. P. C. It may be mentioned here at the cost of repetition that the complaint is in fact itself styled to be one under section 211, I. P. C. According to clause (b) of sub-section (1) of section 195, no court can take cognizance of any offence punishable under section 211, I. P. C. 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. 8. The scope of section 195 (1) (b) has been examined at length by the Supreme Court in the case of M. L. Sethi v. R. P. Kapur, (A. I. R. 1967 S. C. 528. In that case the Supreme Court conceived of three situations :- (i) When no case is pending in any court on the date on which cognizance of a complaint under section 211, I. P. C. is taken. (ii) When a case arising out of the impugned report is pending when cognizance of the complaint under section section 211, I. P. C. is taken. (ii) When a case arising out of the impugned report is pending when cognizance of the complaint under section section 211, I. P. C. is taken. (iii) When though there may be no proceeding pending in any court in which or in relation to which the offence under section 211, I. P. C. could have been committed, there may have been a proceeding which had already concluded. The Supreme Court then said that clause (b) of section 195 (1) would not be attracted in the situation enumerated at No. (i), but it will apply in the situations enumerated at nos. (ii) and (iii ). I have already mentioned earlier that, on the date on which the opposite party no. 1 filed the complaint, proceedings arising out of the report, or connected with the report, lodged by the applicant no. 2 were pending in a court of law but these proceedings had concluded before the date on which cognizance was taken by the Magistrate on the complaint filed by opposite party No. 1 under section 211, I. P. C. The present is thus a case falling under the third category conceived by the Supreme Court in the case of M. L. Sethi v. R. P. Kapur (supra ). The provision contained in clause (b) of sub-section (1) of sec. 195 should, therefore, be applicable and in that view of the matter the complaint should be barred. 9. Before taking leave of the case, however, I may also refer to another point though not specifically raised on behalf of the State. The expression used in clause (b) of sub-section (1) of section 195 is in relation to. A question may, therefore, arise whether it can be said that the offence under section 211, I. P. C. , alleged to have been committed by the applicant No. 2 by lodging a false report, was in relation to any proceeding in any court. The expression in relation to in my view, only means a nexus. I have already stated earlier that after the aforementioned report had been lodged, a complaint had also been filed by Babu Lal. This complaint was directed against the same persons who were nominated as accused in the report. There was thus a clear nexus between the report lodged by applicant No. 2 and the complaint filed by Babu Lal later in court. This complaint was directed against the same persons who were nominated as accused in the report. There was thus a clear nexus between the report lodged by applicant No. 2 and the complaint filed by Babu Lal later in court. It can, therefore, be very well said that the offence under section 211, I. P. C. , alleged to have been committed by the applicant No. 2, was in respect of or in relation to the proceedings starting with the complaint filed by applicant No. 1 in court. 10. For the reasons stated above, the complaint filed by the opposite party No. 1 against the applicants was clearly barred by section 195 (1) (b) of the Code of Criminal Procedure. 11. This application is accordingly allowed and the complaint filed by opposite party No. 1, against the applicants pending in the court of the Munsif Magistrate, Mainpuri and the entire proceedings thereunder are quashed. Application allowed. .