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2022 DIGILAW 187 (ALL)

Chhaila Khan v. State Of U. P.

2022-02-14

MOHD.ASLAM

body2022
JUDGMENT : 1. Heard Shri Mahabir Yadav, learned counsel for the petitioner and Shri L.D. Rajbhar, learned A.G.A. on behalf of the State. 2. The instant petition under Article 227 of the Constitution of India has been filed with the prayer to quash the impugned order dated 03.11.2020 passed by the learned Additional Sessions Judge, Court No.2, Rampur in Criminal Revision No.112 of 2018 (Chhaila Khan v. State of U.P. & Ors.) as well as the impugned order dated 13.07.2018 passed in Criminal Misc. Case No.225 of 2018 (Chhaila Khan v. Niyamat Khan & Ors.). 3. The brief facts necessary for disposal of this petition are that the land Arazi No.286 (area 0.785 hectare) situated in Village-Bhitar Gaon, Tehsil-Shahbad, District-Rampur was vested with the State Government. The respondents in collusion with respondent no.9-Bhagwant Swaroop posted as Tehsildar made forgery in the column of 'tippadi', deleted the sign of cross and entered their names fraudulently. A case numbered as Case No.05 of 2001-02 (Niyamat Khan & Anr. v. State of U.P.) was filed and learned Additional Collector-Rampur vide order dated 30.3.2002 held that the said land vested with the State Government. The opposite party challenged the said order by filing Revision No.145 of 2008-09 before learned Additional Commissioner (Judicial) Moradabad, Division Moradabad. The said revision was dismissed on 20.11.2009 and the order dated 30.3.2002 was affirmed. 4. It is contended by learned counsel for the petitioner that inspite of the aforesaid orders passed by the courts below, the revenue authorities are not complying with the orders and the private respondents are still in possession of the said land. It is further contended that forged entry was made by the private respondents in collusion with respondent no.9. 5. Per contra, learned A.G.A. has vehemently opposed the contentions of learned counsel for the petitioner and contended that under Section 156(3) Cr.P.C., the court may pass order of registration of the First Information Report against the accused regarding which he is competent to take cognizance i.e. in contrast of Section 154 Cr.P.C. It is further contended that it is also barred by Section 195 Cr.P.C. for which only complaint can be filed before the competent authority before whom the judicial proceeding was pending. Learned A.G.A. has also contended that the said application under Section 156(3) Cr.P.C. was also barred by Section 197 Cr.P.C. 6. Learned A.G.A. has also contended that the said application under Section 156(3) Cr.P.C. was also barred by Section 197 Cr.P.C. 6. I have given thoughtful consideration to the contentions raised by learned counsel for the parties. 7. The power of lodging FIR by the Station House Officer under Section 154 Cr.P.C. and the power of Magistrate under Section 156(3) Cr.P.C. is almost similar with one distinction that order for registration of FIR under Section 156 (3) Cr.P.C., the learned court was competent to take cognizance of offence on the basis of the application under Section 156 (3) Cr.P.C. Cognizance can only be taken in the cases in which sanction under Section 197 Cr.P.C. was granted by the Government. No such cognizance could be taken against the public servant regarding illegal act done by the public servant in discharge of his official duty. 8. In above circumstances, learned lower court has rightly held that without sanction the court cannot take cognizance. Apart from the complaint being barred by Section 156 (3) Cr.P.C. it is also barred by Section 195 Cr.P.C. because the proceedings could be initiated after enquiry under Section 340 Cr.P.C. by lodging the complaint and no cognizance otherwise could be taken. 9. In this regard, the relevant Sections 195 Cr.P.C. and 197 are reproduced below:- "195. Apart from the complaint being barred by Section 156 (3) Cr.P.C. it is also barred by Section 195 Cr.P.C. because the proceedings could be initiated after enquiry under Section 340 Cr.P.C. by lodging the complaint and no cognizance otherwise could be taken. 9. In this regard, the relevant Sections 195 Cr.P.C. and 197 are reproduced below:- "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 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 authorise in writing in this behalf, or of some other Court to which that Court is subordinate." "197. Prosecution of Judges and public servants-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted. [(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.] [(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 10. In above circumstances, this Court is not inclined to interfere in the impugned order. 11. The petition under Article 227 of the Constitution of India is dismissed, accordingly.