Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1136 (ALL)

Baleshwar Tiwari v. State of U. P.

2019-04-30

SUDHIR AGARWAL

body2019
JUDGMENT : Sudhir Agarwal, J. 1. Heard Sri Manish Kumar Pandey, Advocate, holding brief of Sri IS. Tripathi, learned Counsel for applicants and learned A.G.A. for State of U.P. 2. Applicants have invoked jurisdiction of this Court under section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash charge-sheet No. 276 of 2002 dated 25.8.2002 as well as further proceedings arising out of Case Crime No. C-23 of 1999, under sections 193, 195, 197, 420, 471/34, 109 IPC, Police Station Kotwali, District Ghazipur. 3. Learned Counsel for applicants contended that Magistrate has taken cognizance of the application filed by one Israil son of Asagar Ali under section 156(3) Cr.P.C. and vide order dated 6.7.1999 directed Police to register FIR and investigate the matter in accordance with law. Thereafter, charge-sheet has been submitted against applicant. It is said that it is barred by section 195 Cr.P.C. and also placed reliance on Apex Court's decision in Randhir Singh v. State of Haryana and another AIR 2000 SC 544 . 4. Before this Court applicant has come up at the stage of submission of charge-sheet by Police before Magistrate concerned. I have to examine whether upto this stage, section 195 Cr.P.C. is attracted or not. 5. In my view, section 195 Cr.P.C. has no application to control power of Magistrate to entertain an application under section 156(3) Cr.P.C. and direct Police to register a report and thereafter make investigation. Even on submission of charge-sheet by Police, section 195 Cr.P.C. will not be attracted but it will be attracted only when Magistrate proceed to take cognizance under section 190. 6. In M. Narayandas v. State of Karnataka 2003 (11) SCC 251 , a complaint was made to police that documents filed in a suit were forged and fabricated. Report under sections 468/470/471/120-B IPC was registered. At this very stage, a petition under section 482 Cr.P.C. was filed for quashing Final Report, which was allowed by High Court. 6. In M. Narayandas v. State of Karnataka 2003 (11) SCC 251 , a complaint was made to police that documents filed in a suit were forged and fabricated. Report under sections 468/470/471/120-B IPC was registered. At this very stage, a petition under section 482 Cr.P.C. was filed for quashing Final Report, which was allowed by High Court. In appeal, Supreme Court observed that whenever an information of a commission of cognizable offence is brought to notice of a police officer, he is obliged under statute to register a case and then to proceed with investigation if he has reason to suspect commission of an offence, which he is empowered under section 156 to investigate, subject to proviso to section 157 Cr.P.C. At the stage of registering an F.I.R., the condition necessary is that there must be information and that information must disclose a cognizable offence. In para 5 of the judgment, Court has held that law has been very succinctly set out in the case of State of Haryana v. Bhajan Lal 1992 SCC (Cri) 426 : 1991 (28) ACC 111 (SC), where, in para 33, Court said: "33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer-in-charge of a police station satisfying the requirements of section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information." 7. It is also said that field of investigation of any cognizable offence is exclusively within the domain of investigating agencies, over which, Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as investigation proceeds in compliance with the provisions relating to investigation except in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code. Therefore, on a report/complaint made by a private person, of non-cognizable offence, order passed by Magistrate directing police to make investigation and investigation made by police is one thing whereat section 195 has no application. 8. Then the question comes about application of section 195 Cr.P.C. and stage at which it will apply. Section 195 Cr.P.C. and power of police to make investigation has been considered in State of Punjab v. Raj Singh 1998 (36) ACC 399 (SC), holding that section 195(1)(b)(ii) Cr.P.C. does not prohibit entertainment of a complaint and investigation by police. Section 195 would come into picture only when the matter is placed before Magistrate for taking cognizance of offence under relevant sections of IPC, in respect whereto, section 195 Cr.P.C. is attracted. Relevant extract of judgment reads as under: "From a plain reading of section 195 Cr.P.C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under section 190(1) Cr. PC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceedings in Court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by section 195 Cr.PC. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of section 195(1)(b) Cr.P.C., but nothing therein deters the Court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in section 340 Cr.P.C." (Emphasis supplied) 9. Reiterating the same, in M. Na-myandas (supra), Court said: "Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Reiterating the same, in M. Na-myandas (supra), Court said: "Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in section 340 Criminal Procedure Code is followed." (Emphasis added) 10. In M. Narayandas (supra), Court also held that when Police completed investigation and submitted charge-sheet, Court concerned itself can file a complaint on the basis of material collected during investigation and after following procedure laid down under section 340 Cr.P.C. The proceeding before this Court are thus not at the stage when 195 will be attracted and therefore neither the order of Magistrate directing Police to register FIR nor the investigation conducted by Police nor the charge-sheet submitted, by itself, can be said to be bad and barred by section 195 Cr.P.C. hence so far as present application is concerned, I do not find any interference can be made. 11. It is only, if Magistrate would have taken cognizance under section 190 and when have passed order of summoning and that would have been challenged, section 195 would have attracted and this Court could have interfered but the applicant has approached this Court premature i.e. earlier to that stage. 12. So far as judgment relied in Randhir Singh (supra) is concerned, therein incumbent was straightway punished for an offence under section 193 IPC and that conviction was challenged on the ground of noncompliance of section 195 read with 340 Cr.P.C. which was upheld by Supreme Court. Facts of above case are totally different and inapplicable to the case in hand. 13. In view of above discussion, I do not find that any interference at the stage of proceedings, which are under challenge, is warranted under section 482 Cr.P.C. and section 195 is not attracted till the stage where against applicant has approached this Court hence this application has no merit. 14. Dismissed accordingly. 15. Interim order, if any, stands vacated.