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2010 DIGILAW 1136 (AP)

Rajkumar Malpani v. Akella Sreenivasa Rao

2010-11-12

SAMUDRALA GOVINDARAJULU

body2010
JUDGMENT (1) The petitioner is accused of offence punishable under Section 211 IPC in C.C. No. 205 of 2007 on the file of X Additional Chief Metropolitan Magistrate, Secunderabad. (2) The 1st respondent/complainant is a practicing Advocate. He was advocate for one Inder Mohan in O.S.No. 1040 of 2011 on the file of VII Junior Civil Judge, Hyderabad. The petitioner/accused is the opposite party for Inder Mohan in that suit. Alleging that there was a mediation at Boats Club, Secunderabad, in which the 1st respondent/complainant is a member and that after three rounds of deliberations the complainant invited the accused to the club and demanded Rs. 2,00,000/- to see that the matter is settled out of court and that the complainant also informed the accused about himself and his client intending to file 25 writ petitions in the High Court and to send petitions to Government Departments in case their demands are not met with; the accused filed BCI TR Case No. 148 of 2003 against the complainant before the Disciplinary Committee of the Bar Council of India. After enquiry. Disciplinary Committee of the Bar Council of India Passed Judgment dated 23-10-2005 holding that the accused failed to prove the allegations. The Disciplinary Committee observed that as the accused failed to examine Akhil Agarwal, who is an important and strong witness, the allegations made by him against the complainant stood unproved. It resulted in disposal of the complaint made by the accused against the complainant and another by disciplinary committee of the Bar Council of India. Thereupon, the complainant (sic complainant) filed the present private complaint before the lower court alleging offence punishable under Section 211 IPC against the petitioner/accused. Section 211 IPC reads as follows: 211. It resulted in disposal of the complaint made by the accused against the complainant and another by disciplinary committee of the Bar Council of India. Thereupon, the complainant (sic complainant) filed the present private complaint before the lower court alleging offence punishable under Section 211 IPC against the petitioner/accused. Section 211 IPC reads as follows: 211. False charge of offence made with intent to injure:- Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; And if such criminal proceeding be instituted on a false charge of an offence punishable with death (imprisonment for life), or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (3) The above Penal provision contemplates institution of any criminal proceeding against the complainant or falsely charging the complainant for having committed an offence; and it should have been done with an intention to cause injury to the complainant. Further, it should be with the knowledge that there is no just or lawful ground for such proceeding or charge against the complainant. (4) The lower Court while considering taking cognizance of that case for the above offence, placed reliance on A.N. Gupta v. State (1) 1999 Crl.L.J. 4932 of the Rajasthan High Court. The lower court observed that as per the wording of Section 211 IPC, not only criminal proceedings instituted, but also false charges for having committed an offence is punishable. The lower court failed to notice that the alleged false charge must relate to commission of an offence. Neither the proceedings before Disciplinary Committee of the Bar Council of India is a criminal proceeding nor charge in the Disciplinary Proceedings before the Bar Council of India is only in respect of professional misconduct and not offence as such. The lower court failed to notice distinction between charge of professional misconduct and charge relating to an offence. Neither the proceedings before Disciplinary Committee of the Bar Council of India is a criminal proceeding nor charge in the Disciplinary Proceedings before the Bar Council of India is only in respect of professional misconduct and not offence as such. The lower court failed to notice distinction between charge of professional misconduct and charge relating to an offence. The decision in A.N. Gupta1 relates to registration of FIR for a criminal offence on the basis of false report given by the accused. By any stretch of imagination, the said decision cannot be made applicable to the present case wherein there was no allegation of an offence muchless a criminal proceeding launched under the Code of Criminal Procedure, 1973. Secondly, the lower Court failed to notice that Section 195 Cr.P.C. is a bar for taking cognizance of an offence punishable under Section 211 IPC at the behest of the victim or the aggrieved person. (5) Section 195(1) Cr.P.C. reads as follows: 196. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (5) Section 195(1) Cr.P.C. reads as follows: 196. 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, 1860 (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 has administratively subordinate; (b) (i) of any offence punishable under any of the following Sections of the Indian Penal Code, 1860 (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 Section 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-clause (ii), [except on the complaint in writing of that court or by such officer of the court as that court may authorize in writing in this behalf, or of some other court to which that court is subordinate.] As per the above provision, the court shall not take cognizance of an offence punishable under Section 211 IPC except on a complaint in writing of that court or by such Officer of the court as that Court may authorize in writing in this behalf or of some other Court to which that Court is subordinate. Thus, the victim has no locus standi to institute the complaint by himself. His remedy is to move the Court which passed the order relating to any criminal proceeding or a criminal charge to institute the complaint or to authorize any officer of that court to institute the complaint. The complaint filed by the 1st respondent in the lower court should not have been entertained by the lower court. His remedy is to move the Court which passed the order relating to any criminal proceeding or a criminal charge to institute the complaint or to authorize any officer of that court to institute the complaint. The complaint filed by the 1st respondent in the lower court should not have been entertained by the lower court. As Section 195(1) Cr.P.C, stands as a bar for institution of a criminal case for offence under Section 211 IPC by any person other than the Court which passed the order. (6) Thus, on both the grounds, the complaint taken on file by the lower court does not stand to legal scrutiny and therefore, any continuation of proceedings for prosecuting the petitioner/accused for offence punishable under Section 211 IPC is nothing short of abuse of process of law. In the result, the criminal petition is allowed quashing proceedings in C.C. No. 205 of 2007 on the file of X Additional Chief Metropolitan Magistrate, Secunderabad.