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2023 DIGILAW 911 (ALL)

Shiv Gopal Jaiswal v. State of U. P.

2023-04-05

MANJU RANI CHAUHAN

body2023
JUDGMENT : [Manju Rani Chauhan, J.] 1. Heard Mr. Shachindra Kumar Mishra, learned counsel for the applicant and Mr. Amit Singh Chauhan, learned AGA for the State. 2. The present application under Section 482 Cr.P.C. has been filed to quash the impugned summoning order dated 04.06.2022 issued by the Court of Judicial Magistrate/FTC, District Basti in Case No. 11656 of 2022 arising out of Case Crime No. 0092 of 2022, under section 174-A IPC, Police Station Walterganj, District Basti as well as entire proceeding pending in the court of Judicial Magistrate/FTC, District Basti and also quash the charge sheet dated 28.04.2022. 3. Brief facts of the case are that earlier an FIR was lodged against the applicant which was registered as Case Crime No. 151 of 2021, under section 420, 406 IPC in which investigation is going on. As the applicant was absconding, therefore, non-bailable warrant has been issued against him on 28.03.2022 and proceeding u/s 82 Cr.P.C. was initiated. The notice about the aforesaid proceedings was affixed at the house of the applicant as well as published in duly circulated newspaper namely Dainik Jagran. Despite of the aforesaid, the applicant did not appear before the concerned court, therefore, seeing that the applicant is avoiding the order of the Court, he was declared, absconder and as per orders of the concerned Magistrate, the present FIR was lodged by concerned Sub Inspector. After investigation charge sheet was submitted and cognizance has been taken against the applicant. Hence, the present petition has been filed, challenging the impugned order dated 04.06.2022. 4. The learned counsel for the applicant submits that opposite party no. 2 had lodged the FIR against the applicant under section 174-A IPC in Case Crime No. 0092 of 2022, in which after investigation charge sheet has been submitted on 28.04.2022, on which the concerned Court has taken cognizance while as per provision of Section 195 Cr.P.C. for the offences under Sections 172 to 188 Cr.P.C. cognizance can be taken by the court only on a complaint made by a public servant, therefore, he submits that the cognizance taken by the court concerned is illegal and is liable to be quashed. He has further submitted that a conjoint reading of section 174A I.P.C. and section 195(1)(a) Cr.P.C. reveals that only a complaint u/s 174-A can be filed in respect of the offence u/s 174-A I.P.C. and that too by a public servant. As such, lodging of the FIR by any person is clearly barred by the provisions of section 195(1)(a) Cr.P.C. It has been further contended that the police in this case, without keeping in view this aspect, mechanically submitted charge sheet against the applicant and the learned Magistrate without application of judicial mind, took cognizance on the said charge-sheet by just filling up the blanks. On the aforesaid grounds, it has been prayed that the charge-sheet, the cognizance order and the entire consequential proceedings in pursuance of the charge sheet, pending against the applicant be quashed. He has also placed reliance upon the order passed in Application u/s 482 No. 394 of 2020 dated 07.01.2020 passed by coordinate Bench of this Court. 5. Learned AGA on the other hand submits that since the applicant has absconded from the judicial proceeding and he was declared absconder that is why an FIR was lodged, in which the concerned court has taken cognizance, therefore, no ground for quashing the proceeding is made out. 6. Before considering the submission as made by counsel for the parties it would be appropriate to place extract of few provisions:- Section 195 Cr.P.C. 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 1 [Subs. By Act 2 of 2006, sec3, for “except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate”(w.e.f. 16.04.2006).], [except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate]. Section 174A I.P.C. is quoted below: 174A. By Act 2 of 2006, sec3, for “except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate”(w.e.f. 16.04.2006).], [except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate]. Section 174A I.P.C. is quoted below: 174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.--Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. The term "Complaint" has been defined under S. 2(d) Cr.P.C which means any allegation made orally or in writing to a magistrate with a view to his taking action under this code, that some person has committed an offence. It does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; 7. After giving a thoughtful consideration to the rival arguments advanced by learned counsel for the parties and having perused the relevant legal provisions, this Court is of the considered view that section 174-A I.P.C. cannot be deemed to be included in between section 172 I.P.C. to section 188 I.P.C., as mentioned in section 195(1) (a) Cr.P.C. and the bar created by section 195(1)(a) Cr.P.C. will not apply to the provisions of Section 174-A I.P.C. It is to be noted that all the offences under Section 172 to 188 I.P.C. (both inclusive) are non-cognizable and bailable, whereas Section 174-A I.P.C. which provides for punishment upto 7 years imprisonment and fine, in case the offender fails to appear at the specified place and the specified time, as required by the proclamation published under Section 82 Cr.P.C., is cognizable and non-bailable as per 1st Schedule (classification of offences). It has been clearly provided u/s 195 (1)(a) Cr.P.C. that no court shall take cognizance of offences punishable under Sections 172 to 188 (both inclusive) of the I.P.C. or of the abatement or attempt to commit the said offence, except by complaint in writing by the public servant or of some other public servant to whom he is administratively subordinate, whereas the complaint as defined in Section 2(d) Cr.P.C., with respect to the offences which are non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; shall take cognizance of offences punishable. On the basis of above, understanding of the Court is that a complaint is to be lodged for offence which are non-cognizable. 8. As per Section 154 of Code of Criminal Procedure, information in cognizable cases has to be given by any person to set the law into motion, in case any cognizable offence is noticed by him, by registering a first information report. The public interest demands that criminal justice should be swift and sure and the court should not let the guilty scot free only on the basis of mere some technicalities. 9. Even otherwise the basic principle of law is that one, who seeks equity should do equity. In other words the persons, who seeks equitable reliefs, should come before the court with clean hands. The accused has no right to choose the mode by which he is to be prosecuted specially in the circumstances when he has failed to comply with the orders of the court and is prolonging the matter by filing one case after another. 10. Considering all aspects, this Court also finds that an FIR has been lodged after the orders of concerned Magistrate when the accused failed to appear before the court despite notice to him as required in case wherein FIR was earlier registered against him. 11. In view of the above facts and circumstances of the case, this application appears to be without any force. It lacks merit and is liable to be dismissed. 12. The application is accordingly dismissed.