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1998 DIGILAW 160 (RAJ)

Babu Lal v. State of Rajasthan

1998-02-03

V.G.PALSHIKAR

body1998
Honble PALSHIKAR, J. – By this petition, the petitioners have assailed the order passed by the Judicial Magistrate First Class, Jaisalmer in Criminal Case No. 115/1995 framing charge against the accused revision petitioners under Sections 420, 466, 471, 209, and Section 120 (B) of the Indian Penal Code and proceeded to try the same. This order is challenged with order dated 23.9.1996 whereby the learned Judge held that the question of sentences under Sec.197 of the Code of Criminal Procedure, in relation to accused No. 1 and 3 does not arise as the offence ultimately committed by them was not so committed in discharge of their duties. (2). Both the orders are assailed on the ground that they are unsustainable in law. The first and basic attack is that the proceedings are initiated on a police report which is impermissible in law. No cognizance of the offence with which the petitioners are charged can be taken, except on a complaint to that effect by the court concerned and, hence in view of the embargo contained in Section 195 of the Code of Criminal Procedure, the prosecution is liable to be quashed. The second contention is that it is the allegation of the prosecution that the accused Nos. 1 and 3 were Sarpanch & Gram Sewak or Secretary of the Gram Panchayat at the time when the offence was committed and they have fabricated or abeted the fabricating of the lease deed in favour of accused No. 2 Bhagwana Ram and this offence was committed by them with a view to use that lease deed in a proceeding, namely, a suit instituted at the behest of Bhagwana Ram. It is, therefore, the contention of the accused that the sentences, as contemplated by Section 97 of the Code of Criminal Procedure is necessary in the instant case. (3). Taking up the first contention regarding lack of jurisdiction to take cognizance in the instant case, it should be noticed that admittedly the incident has occurred in Civil Misc. Case No. 15/1992 pending on the file of Civil Judge Sr. Division, Jaisalmer, wherein accused No. 2 Bhagwana Ram sought an injunction against one Govind Ram and in which lease deed in favour of the accused Bhagwana Ram was produced. Also produced was a Register showing the entry of a lease deed by the Secretary of the Gram Panchayat. The learned Civil Judge, Sr. Division, Jaisalmer, wherein accused No. 2 Bhagwana Ram sought an injunction against one Govind Ram and in which lease deed in favour of the accused Bhagwana Ram was produced. Also produced was a Register showing the entry of a lease deed by the Secretary of the Gram Panchayat. The learned Civil Judge, Sr. Division, Jaisalmer suspected that the entry No. 21 at page No. 8 is deliberately cancelled and, therefore, amounts to forgery committed with intention to defraud the litigant in a litigation. He, therefore, directed the Station House Officer, Police Station Khuhadi to investigate the matter. The Station House Officer, after investigation, filed a challan and a Report under Section 173 of the Code of Criminal Procedure before the Judicial Magistrate, 1st Class, Jaisalmer, who , after rejecting the application for quashing the prosecution for want of complaint under Sec.195 of the Code of Criminal Procedure, proceeded to frame charges as aforesaid by the impugned order. It is this, order, which is impugned in this petition on the ground that the learned Judge has grossly misconducted the provisions of Section 195 of the Code of Criminal Procedure. The learned Judge should have seen that in the present case, the complaint is not filed by the Presiding Officer of the Court, namely, the Civil Judge, Sr. Division, Jaisalmer and, therefore, no cognizance of the matter could be taken by the learned Magistrate. For adjudication of this question of law, it would be necessary to know in detail the provisions of law, reliance on which is placed for the contention that the prosecution is liable to be quashed for lack of jurisdiction. (4). Section 195 of the Code of Criminal Procedure reads as under :– ``195. For adjudication of this question of law, it would be necessary to know in detail the provisions of law, reliance on which is placed for the contention that the prosecution is liable to be quashed for lack of jurisdiction. (4). Section 195 of the Code of Criminal Procedure reads as under :– ``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, or 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) of any offence described in Section 463, or punishable under Sec- tion 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-cl. (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (5). It will, therefore, be seen that the Criminal Procedure Code describes taking of cognizance of an offence described in Section 463 or punishable under Sec. 471, Sec. 475 or Sec. 476 of the Code when such offence is committed in respect of a document produced or given in evidence in a proceeding in any Court. (6). In the present case, it is admittedly the lease deed and the entry No. 21 on page No. 8 in the Register of Gram Panchayat contained in Civil Misc. Case No.15 of 1992 that the offence is committed. (6). In the present case, it is admittedly the lease deed and the entry No. 21 on page No. 8 in the Register of Gram Panchayat contained in Civil Misc. Case No.15 of 1992 that the offence is committed. It cannot, therefore, be said that the offence of forgery and alteration in a valuable document is allegedly committed in respect of a document, namely, the lease deed and the register entry produced in evidence in a proceeding, namely, Civil Misc. Case No. 15/1992 pending in the court of Civil Judge, Sr. Division, Jaisalmer. There can, therefore, be no doubt that the provisions of Section 195 (1) (b) (ii) were attracted in the present case. There also cannot be any doubt that the proceedings in relation to prosecution under Section 209 are covered by clause (b) (i) of Section 195 (1) and that offence is also, therefore, one committed in proceedings in any Court. Normally, no cognizance of any of these offences under Section 209, 471, 466 could be taken without complaint of the concerned Civil Judge. I, therefore, find that the learned Magistrate was wrong in holding that Section 195 is not attracted in the present case. (7). The next question which arises for adjudication in the circumstances is whether the report filed by the police under Section 130 can be construed as a complaint in writing as contemplated by Section 195 (1) of the Cr.P.C. Complaint is defined in Section 2 (d) of the Criminal Procedure Code. It reads as under :– ``2. Definitions, – In this Code, unless the context otherwise requires, (d) ``complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation, – A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. (8). Explanation, – A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. (8). A bare reading of the definition of complaint and the explanation attached thereto, makes it clear that the report under Section 173 of the Code of Criminal Procedure cannot be construed by any stretch of imagination being complained under Section 173 Cr.P.C. because Section 2 (d) defines complaint when it says ``but does not include a police report.. The explanation makes things further clear by pointing out that the police officer when make the police report, shall be deemed to be a complainant. In such circumstances, the learned Judge was in error in taking cognizance of the matter and framing charges as he did by the impugned order. His order being unsustainable in law is, therefore, liable to be quashed. (9). That takes me to the question of sentence under Section 197 of the Cr.P.C. for the prosecution of accused No. 1 and 3. However, in view of the fact that taking cognizance of the report itself being illegal and without jurisdiction, I need not decide the question of necessity of sanction in relation to 2 of the accused persons in the present case. (10). In the result, the petition succeeds and is allowed. The impugned order taking cognizance and framing charge passed on 29.11.96 is quashed along with proceedings initiated on the police report filed by the Station House Officer.