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2018 DIGILAW 1194 (GAU)

Likha Soni v. State of Arunachal Pradesh

2018-08-13

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. T.T. Tara, learned counsel for the petitioner and Mr. K. Tado, learned Public Prosecutor for the State respondent. 2. By this application filed under Section 482 Cr.P.C., the petitioner has sought for quashing and setting aside the impugned Charge-sheet No. 249/2016 dated 19.10.16, in connection with Naharlagun P.S. Case No. 158/2015, dated 28.08.2015, under Section 176/177/182 IPC, filed by the Investigating Officer of the case corresponding to GR Case No. 567/2015, which is pending before the learned JMFC, Yupia. 3. The brief facts of the case is that on 4.7.2015 the present petitioner lodged an FIR before the Police Station, Naharlagun stating that two accused persons namely, Sri Ravi Ranjan Singh and Sri Radhe Syam Singh had taken an amount of Rs. 1,26,00,000/- (Rupees one crore twenty six lakhs) from the petitioner and the same was not returned after repeated request and ultimately he made a complaint before the Court of Chief Judicial Magistrate, Yupia for interference and accordingly, the learned CJM, Yupia directed the O.C., P.S. Naharlagun to register the written FIR submitted by the petitioner, which was registered as Naharlagun P.S. Case No. 158/2015 dated 28.08.2015 under Section 403/420/34 IPC and endorsed to investigate the matter. Accordingly, the matter was investigated by the I.O. and after due investigation the I.O. submitted a charge-sheet against the two accused person and on the same charge-sheet the I.O. also made a prayer to take cognizance against Sri Likha Soni/the informant under Section 176/172/182 of IPC by stating that he had suppressed a certain matter of payment made by the said two accused persons. 4. On 09.03.2018, the petitioner submitted an application before the Court of Judicial Magistrate First Class, Yupia informing that the dispute between the alleged accused person and the petitioner has been settled outside the Court and prayed for compounding the offences charged under Sections 403/420/34 IPC. The learned Court below on perusal of the records and the section being compoundable within the purview of Section 320 of IPC accordingly allowed the prayer of the petitioner and thereafter discharged the alleged accused persons. The learned Court below on perusal of the records and the section being compoundable within the purview of Section 320 of IPC accordingly allowed the prayer of the petitioner and thereafter discharged the alleged accused persons. However, on the basis of the said prayer so made by the I.O. the learned Court issued summon to the present petitioner to appear before the Court of learned JMFC and now the petitioner has sought for quashing and setting aside the charge-sheet No. 249/16, as well as, the order of the Court below by which proceeding has been initiated against him on the basis of the prayer made by the I.O. 5. Mr. T.T. Tara, learned counsel for the petitioner has made a submission that such a cognizance taken by the Court is barred under Section 195 Cr.P.C., as the Court has violated the mandate as provided under Section 340 Cr.P.C. On this aspect the learned counsel for the petitioner rendered the decision of the Supreme Court in Daulat Ram Vs. State of Punjab reported in AIR 1962 SC 1206 . The necessary observation of the said decision is quoted below: "3. The only question in this case is whether a complaint in writing as required by Section 195 had been presented by the public servant concerned. The public servant who was moved by the appellant was undoubtedly the Tehsildar. Whether the appellant wanted the Tehsildar to take action or not, the fact remains that he moved the Tehsildar on what is stated to be a false averment of facts. He had charged Hans Raj and Kans Raj with offences under the Penal Code and he had moved his superior officer for action even though he might have stated in the letter that it was only for his information. We are prepared to assume that he expected that some action would be taken. In fact his second letter that he had compromised the matter and the proceedings might be dropped clearly shows that he anticipated some action on the part of his superior officer. The question is therefore whether under the provisions of Section 195, it was not incumbent on the Tehsildar to present a complaint in writing against the appellant and not leave the Court to be moved by the police by putting in a charge sheet. The words of Section 195 of the Criminal Procedure Code are explicit. The question is therefore whether under the provisions of Section 195, it was not incumbent on the Tehsildar to present a complaint in writing against the appellant and not leave the Court to be moved by the police by putting in a charge sheet. The words of Section 195 of the Criminal Procedure Code are explicit. The section reads as follows: "(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......" The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no Court shall take cognizance except on such a complaint clearly show that in every instance the Court must be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of Section 195. The words "no court shall take cognizance" have been interpreted on more than one occasion and they show that there is an absolute bar against the Court taking seisin of the case except in the manner provided by the section." 4. Now the offence under Section 182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. In making his report to the Tehsildar therefore, if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that section was complete. It was therefore incumbents, if the prosecution was to be launched that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer. The learned counsel for the State Government tries to support the action by submitting that Section 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for "a calendar". This paper was filed along with the charge sheet and it is stated that this satisfies the requirements of Section 195. In our opinion, this is not a due compliance with the provisions of that section. What the section contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the Court without the complaint in writing of the public servant namely the Tehsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained." 6. Today the I.O. is present before the Court as directed earlier and on query being made he submitted that complainant had been raised against the complainant for concealing the facts and giving false information. He submits that the informant did not mention about the certain payment that had been made by the accused persons subsequently, filing of the FIR so he had suppressed the matter and gave false evidence, and thereafter he made such prayer before the Court at the time of filing the said charge-sheet. But no separate complaint petition was filed. 7. It is noted that the I.O. did not make any separate complaint as required under Section 340 Cr.P.C., and the learned Court below also did not adhere the subject as per law and proceeded at the prayer of the I.O. 8. As indicated above, the cognizance under Section 172 to 188 IPC is barred under Section 195 unless proceeded by inquiry as provided under Section 340 Cr.P.C. Hence, the proceeding so made by the learned Court below is not maintainable in law. As indicated above, the cognizance under Section 172 to 188 IPC is barred under Section 195 unless proceeded by inquiry as provided under Section 340 Cr.P.C. Hence, the proceeding so made by the learned Court below is not maintainable in law. On the other aspect it is also to be noted that the same Court has discharged both the accused persons from the charges due to the settlement between the parties and the same Court proceeded with the case against the informant which is also not fair. 9. In view of the legal mandate, taking cognizance by the Court as discussed above it is found that further proceeding against the present petitioner is abuse of law and is not maintainable. 10. Accordingly, the proceeding pertaining to GR Case No. 567/2015 (Naharlagun P.S. Case No. 158/2015) pending before the learned JMFC, Yupia is hereby quashed and set aside. 11. I.O. present before the Court is hereby cautioned for future to take proper recourse of law while filing a complaint of such nature before the Court of law. Accordingly, the petition stands disposed of. Let a certified copy of this order be forwarded to the DGP, PHQ, Itanagar and the Officer-in-Charge, Naharlagun for compliance.