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2001 DIGILAW 154 (KER)

Pankaj Aggarwal v. State of Delhi

2001-03-12

G.B.PATTANAIK, UMESH C.BANERJEE

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Judgment :- 1. Leave granted. 2. The accused is the appellant. On the basis of FIR lodged by the driver of DTC Bus, the investigation was carried and the police finally filed charge sheet under Ss.186, 332 and 353/34 of the Indian Penal Code. The Magistrate, however, took cognizance of the offence and framed charges under S.186 and 332/34 IPC. The accused then moved the High Court under S.482 Cr.P.C. alleging that in view of S.195 of the Code of Criminal Procedure, cognizance under S.186 IPC as well as under S.332 IPC could not have been taken. The High Court having rejected the application, the accused is before us. 3. Mr. Jain appearing for the accused appellant contended that in view of S.195 of the Code of Criminal Procedure, the Magistrate could not have taken cognizance of the offence under S.186 IPC as it is barred under S.195(1)(a)(i). He further contended that even the cognizance under S.332/34 IPC also would be barred as the offence under S.332 IPC is a cognate offence, and therefore the entire proceeding is bad. Mr. Jain also further contended that the allegations made and the materials available on record do not make out any offence for which the accused has been charged. It is contended on behalf of the respondents that though cognizance could not have been taken under S.186 IPC in view of the provisions contained in S.195(1)(a)(i), but there is no infirmity with the order taking congnizance under S.332 IPC inasmuch as the ingredients of offence under S.332 and 186 IPC are distinct and the Magistrate did not commit any error in taking cognizance of the offence under S.332/34 IPC Mr. Jain in course of his arguments relied upon three decisions of different High Courts 1996 Current Criminal Reports 257 of Delhi High Court, 1991 (1) Recent Criminal Report 192 of Punjab High Court as well as 1975 CCR 575 of the Patna High Court. In the Punjab High Court judgment, the provisions of S.186 and 332 IPC have been analysed and the judgment undoubtedly supports the contentions of Mr. Jain. In the Punjab High Court judgment, the provisions of S.186 and 332 IPC have been analysed and the judgment undoubtedly supports the contentions of Mr. Jain. But in view of the judgment of this court in AIR 1966 SC 1775 were the court has analysed the provisions of S.353, IPC and 186 IPC and held that the two are distinct offences and the quality of the offence is also different, we are of the opinion that judgment of the Punjab High Court is not correct in law and has taken a view contrary to the law laid down by this Court. What has been stated earlier in the aforesaid case in relation to the provisions of S.353 IPC, would equally apply to the provisions of S.332 of the IPC. This being the position, we are unable to accept the contention of Mr. Jain that the provisons of S.195(1)(a)(i) bars taking cognizance of S.332/34 IPC. We, however agree with Mr. Jain that the order taking cognizance of S.186 of the IPC is bad in law and attracts the mischief of S.195. In the aforesaid premises, we quash the criminal proceedings so far as the charge under S.186 IPC is concerned and direct that the criminal proceedings would continue so far as the charge under S.332/34 IPC is concerned. The appeal is disposed of accordingly.