Allowed

Smt R.Siva Laxmamma, Kurnool Dist. v. the State of a.P., Rep. by P.P. and Another

Andhra Pradesh HC28 Jul 2022CRLP/170/2017

Case brief

AI extract

What is this about?

In a criminal petition under Section 482 CrPC, the High Court considered the maintainability of cudgel proceedings for forgery and false charges filed based on a private complaint where the earlier FIR was found false and closed. The court held that the Magistrate lacked jurisdiction under Section 195 CrPC to take cognizance as the offence was not committed by a public servant or in relation to co

What did the court decide?

Criminal Petition allowed; proceedings in C.C.No.109 of 2016 for offences under Sections 182, 500 and 211 IPC in C.C.No.109 of 2016 were quashed.

Smt R.Siva Laxmamma, Kurnool Dist. Vs the State… — Cheating and Forgery | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY

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CRIMINAL PETITION NO.170 of 2017

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ORDER:-

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The Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), is filed to quash the proceedings in C.C.No.109 of 2016 on the file of the Court ofthe Judicial Magistrate of First Class, Nandikotkur, Kurnool District. A charge sheet has been filed against the petitioner for the offences under Sections 182, 500 and 211 of the Indian Penal Code, 1860 (IPC).

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Brief facts of the case are that 2^nd respondent/ defacto complainant and petitioner/accused are residents of Bollavaram Village. Accused is step mother of 2^nd respondent. After death of the mother of the defacto complainant in the year 1979, his father married accused in the year 1983. At that time, the

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defacto complainant was aged about 20 years and he was unmarried. By that time, the defacto complainant was having Ac.18.00 cents of land, Ac.0.32 cents of hayrick yard place and a house in an extent of Ac.0.05 cents in the name of his father, which is their ancestral property. Marriage of the defacto complainant was performed and he was blessed with one son and one daughter and eking out his livelihood by running Sankar Engineering Automobiles shop Nandyal road. Thereafter, accused was blessed with male child by name Niranjan Reddy. In the year 1986, father of the defacto complainant gave one acre of land in Vaddemanurastha to the defacto complainant and two acres to his brother Rajeswar Reddy, each 2 cents to them in 32 cents of site and his father kept the remaining property in his name. After the death of the father of the defacto complainant, accused sold out 8 ½ cents of land (out of 28 cents) to

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Sri Sai Baba temple trust for Rs.8,50,000/- without the knowledge of the defacto complainant and used the amount for personal use. When defacto complainant questioned the same, there was no proper reply from the accused. Then the defacto complainant demanded the accused to give equal share in the property. Keeping the same in mind, the accused foisted false case against the defacto complainant in Brahmankotkur police station in which she narrated that while herself and her son were in their field, the defacto complainant went to them, abused her in filthy language, caught hold her saree, tuft and dragged her, also threatened them with dire consequences on the point of knife and took her signature on a blank white paper vide Cr.No.12 of 2013. After enquiry, police filed report that the case reported by the accused is false. Due to false report of the accused, the defacto complainant lost his image in the society and

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as well as relatives and friends and in business circle

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and filed a report against the petitioner. Basing on the report, police registered a case in Cr.No.191 of 2015 of Nandikotkur police station and after completion of investigation, filed charge sheet under Sections 182, 500 and 211 of IPC. Aggrieved by the same, the present Criminal Petition is filed.

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Learned counsel for the petitioner contended that the cognizance of the offences is not maintainable for the reason that there is a bar under Section 195 of CrPC and the learned Magistrate ought not to have taken cognizance on the report filed by the police.

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On the other hand, learned Assistant Public Prosecutor appearing for respondent No.1–State supported the case of the prosecution stating that the cognizance of the offences is maintainable and the

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questions raised are all disputed in nature and the same

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have to be decided in the course of trial.

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Heard. Perused the record.

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Admittedly, there are disputes between the

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family members i.e., complainant and his step mother and her son. This Court, without going into the merits of the case, merely confined to the legal issues that have been raised by the learned counsel for the petitioner.

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7. Section 195 CrPC reads as follows:

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“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

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(1) No Court shall take cognizance-

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(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

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(ii)of any abetment of, or attempt to commit, such offence, or

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(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;

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(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

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(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

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(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 of some other Court to which that Court is subordinate.

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(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

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(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

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(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local

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jurisdiction such Civil Court in situate: Provided that-

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(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

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(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”

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Under Section 195 (1) (a) (i) CrPC, no Court shall take cognizance of any offence punishable under Sections 172 to 188 IPC, except on the complaint, in writing, of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 (1) (b) (i) CrPC contemplates that no Court shall take cognizance of any offence punishable under any of the Sections 193 to 196, 199,

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200, 205 to 211 and 228 IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint, in writing, of that Court, or of some other Court to which that Court is subordinate.

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Admittedly, Section 195 (a) (i) (b) (i) CrPC would apply to the cases where the offence was committed relating to the document, subsequent to its production or giving any evidence in any Court. That does not apply to cases of forgery of document committed prior to commencement of proceeding and used in evidence later on. Admittedly, the procedure contemplated under Section 340 CrPC has to be followed so as to bring the same within the purview of Section 195 CrPC. Section 340 CrPC is the procedure in cases mentioned in Section 195. The said Section reads as follows:

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“340. Procedure in cases mentioned in section 195.

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(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of subsection (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

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(a)record a finding to that effect;

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(b)make a complaint thereof in writing;

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(c)send it to a Magistrate of the first class having jurisdiction;

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(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and

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(e)bind over any person to appear and give evidence before such Magistrate.

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(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of subsection (4) of section 195.

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(3) A complaint made under this section shall be signed,-

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(a)where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

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(b)in any other case, by the presiding officer of the Court.

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(4) In this section," Court" has the same meaning as in section 195.”

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Learned counsel for the petitioner also relied

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upon the judgment reported in Abdul Rehman and Ors

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v. K.M.Anees-UI Haq on 14^th November, 2011 in Crl.A.No.2090-2093 of 2011, which is reads as follows…

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“A plain reading of the above would show that there is a legal bar to any Court taking cognizance of offences punishable under 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 except on a complaint in writing, of that Court or by such officer of the Court as may be authorized in that behalf, or by some other Court to which that Court is subordinate. That a complaint alleging commission of an offence punishable under Section 211 IPC, "in or in relation to any proceedings in any Court", is maintainable only at the instance of that Court or by an officer of that Court authorized in writing for that purpose or some other Court to which that Court is subordinate, is abundantly clear from the language employed in the provision. It is common ground that the offence in the present case is not alleged to have been committed "in any proceedings in any Court". That being so, the question is whether the offence alleged against the appellants can be said to have been committed "in relation to any proceedings in any Court".

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The whole crux of the case is that a false complaint has been instituted as against 2^nd respondent by the accused vide crime No.12 of 2013 wherein it is alleged that when she and her son were in the field, 2^nd respondent went to them, abused them in filthy language and caught hold of her saree, tuft and dragged her and also threatened them with dire consequences on the point of knife and took her signature on blank white paper. In the said crime, police made enquiries in the houses of relatives, friends and business places and defamed his image in the society due to which he became cheap in the eyes of his relatives and friends and also in business circles. Later, police filed a final report in crime No.12 of 2013 stating that it is a mistake of fact. In view of the false report filed by the petitioner, 2^nd respondent lost his image in the society and in business circle. Upon which, 2^nd respondent resorted in filing a

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private complaint, which was referred under Section 156

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(3) CrPC to police, and basing on the same, police registered a case in crime No.191 of 2015 of Nandikotkur police station for the offences punishable under Sections 182, 500, 203 and 211 IPC and after completion of investigation, laid charge sheet for the offences punishable under Sections 182, 500 and 211 IPC. Thereafter, the learned Magistrate took cognizance of the same for the said offences as C.C. No.109 of 2016.

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It is crystal clear that there is a bar under Section 195 (1) (a) (i) CrPC for taking cognizance of any offence punishable under Sections 172 to 188 IPC, except on the complaint, in writing, of the public servant concerned or of some other public servant to whom he is administratively subordinate. So also, there is a bar under Section 195 (1) (b) (i) CrPC for taking cognizance of any offence punishable under any of the Sections 193 to

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196, 199, 200, 205 to 211 and 228 IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint, in writing, of that Court, or of some other Court to which that Court is subordinate. In the case on hand, the procedure adopted by the learned Magistrate in taking cognizance of the said offences is illegal and without jurisdiction.

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There would be three situations which are likely to emerge while examining the question whether there is any proceedings in any Court. There might not be any proceeding in any Court at all. Secondly, the proceeding in a Court might actually be pending at the relevant time when cognizance is sought to be taken of the offence punishable under Section 211 IPC. Thirdly, there might have been proceedings which had already been concluded though there might not be any

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proceedings pending in any Court when cognizance of the offence under Section 211 IPC is taken. It is only in second and third situation that Section 195 (1) CrPC would apply. The fact that the proceedings had been concluded would not be material because Section 195 (1) CrPC does not require that proceedings in any Court must actually be pending at the time when the question of applying the bar arises if the offence under Section 211 IPC is alleged to have been committed in relation to those proceedings.

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In Geetika Batra v. O.P. Batra and another¹ , the Delhi High Court held thus: (paragraphs 31 and 32)

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“In the present case, it was after registration of the FIR that the respondents had applied for anticipatory bail wherein some other judicial proceedings also took place and it was after the grant of bail that the complaint was filed and therefore proceedings before

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12009 CRI.L.J. 2687

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the court within the meaning of Section 195 Cr.P.C. were held. This has resulted into a complete bar on the jurisdiction of the court to take cognizance of offence under Section 211 IPC in a private complaint filed by the respondents. The Magistrate should have carefully considered the material before him under the circumstances of this case to see if the limitation of Section 195 (1) Cr.P.C. was applicable or not and if it was applicable if it was necessary for him to see if any complaint was received from the court concerned or by any other court superior to the said court. The order of the trial court does not reflect that he considered the provisions of Section 195 (1) Cr.P.C. before summoning the petitioner for offences including offence under Section 211 IPC. The Magistrate erred in his approach to the facts of the case and passed the impugned order without any application of mind.

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32. Summoning of an accused in a complaint is a serious matter and, therefore, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate failed to examine the nature of allegations made in the

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complaint and the evidence both oral as well as documentary placed on record in support of the complaint to come to a conclusion if he should proceed to summon the petitioner for offence under Sections 182/211/499/500 IPC.”

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It is admitted that when once the offence punishable under Section 211 IPC cannot be taken cognizance of, there is no room to interfere with the proceedings insofar as the same relates to offence punishable under Section 500 IPC since a bar under Section 195 CrPC would not attract for taking cognizance under Section 500 IPC. In the case on hand, the accusations that are made as against 2^nd respondent in the earlier case were proved to be false, which, according to the 2^nd respondent, tantamounts to commission of the offence punishable under Section 211 IPC apart from the offence punishable under Section 500 IPC. The factual matrix for both the offences is, however, one and the

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same. In view of the fact that the proceedings under Section 211 IPC i.e. false charge of offence made with intent to injure, are not maintainable, allowing the continue the prosecution as against the petitioner for the offence punishable under Section 500 IPC would not, in the opinion of this Court, sub-serve the ends of justice and the same amounts to vexing twice on the same set of facts.

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On this aspect, learned counsel for the petitioner relied on a decision of the Hon’ble Apex Court dated 14.11.2011 in Criminal Appeal Nos. 2090-2093 of 2011 in Abdul Rehman and others v. K.M. Anees-ul-Haq, wherein it is held thus: (paragraph 16).

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“It was next argued by learned counsel for the respondent that while an offence under Section 211 IPC cannot be taken cognizance of, there was no room for interfering with the proceedings in so far as the same related to the

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commission of an offence punishable under Section 500, since the bar of Section 195 Cr.P.C. was not attracted to the proceedings under Section 500 IPC. The argument though attractive does not stand closer scrutiny. The substance of the case set up by the respondent is that the allegations made in the complaint lodged with CAW Cell accusing him of an offence punishable under Section 406 and Sections 3 and 4 of the Dowry Prohibition Act were false which according to the respondent tantamounts to commission of an offence punishable under Section 211 IPC apart from an offence punishable under Section 500 IPC. The factual matrix for both the offences is however one and the same. Allowing the respondents to continue with the prosecution against the appellants for the offence punishable under Section 500 IPC would not, in our opinion, subserve the ends of justice and may result in the appellants getting vexed twice on the same facts. We are doubtless conscious of the fact that any complaint under

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Section 500 IPC may become time barred if the complaint already lodged is quashed. That is not an insurmountable difficult; and can be taken care of by moulding the relief suitably. It would, in our opinion, be appropriate if the orders passed by the Metropolitan Magistrate and that passed by the High Court are set aside and the complaint filed by the respondent directed to be transferred to the Court dealing with the charge sheet filed against the respondent. The said court shall treat the complaint as an application for filing of a complaint under Section 211 of the IPC to be considered and disposed of at the final conclusion of the trial; having regard to the provisions of Section 340 of IPC and the finding regarding guilt or innocence of the respondent as the case may be recorded against him. The respondent shall also have the liberty to proceed with the complaint in so far as the same relates to commission of the offence punishable under Section 500 of the IPC depending upon whether there is any room

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for doing so in the light of the findings which the court may record at the conclusion of the trial against the respondent.”

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In view of the aforesaid facts and

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circumstances of the case, this Court feels that taking cognizance by the learned Magistrate of the aforesaid offences under Sections 182 and 211 IPC would amount to abuse of process of Court, and the proceedings under Section 500 IPC is not maintainable. This Court has no impediment in quashing the impugned proceedings.

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Accordingly, the Criminal Petition is allowed, quashing the proceedings in C.C.No.109 of 2016 on the file of the Court of the Judicial Magistrate of First Class, Nandikotkur, Kurnool District.

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Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.

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JUSTICE K. SREENIVASA REDDY

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Date: 28.07.2022 KLPD/DRK

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THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY

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CRIMINAL PETITION NO.170 of 2017

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