A. Gandhi and others vs State by Inspector of Police

T. Jayarama Chouta, J.—In this petition filed u/s 482 of the Code of Criminal Procedure the Petitioners have prayed for calling of the

records in CC. No. 251of 1988 pending on the file of the Judicial Magistrate-I, Kovilpatti and to quash the proceedings.

The point involved in the case is in a very narrow compass. A civil suit has been filed by P.W.3 against the first Petitioner in O.S. No. 119 of

1987 before the court of the Subordinate Judge, Tuticorin in respect of a dispute regarding the election of President, Secretary and other Executive

Members of A.V.K. Sangam and for a declaration that P.W.I should be declared as the Secretary. Similarly, the present Petitioners also filed a

civil suit in O.S. No. 161 of 1987 for a declaration that they are duly elected Office Bearers and both the suits are pending. Further, during the

pendency of the proceedings before the Subordinate Judge, xerox copy of the resolution passed by the Executive Committee and the original

resolution of the Sangam were exhibited as Exs.B.19 and B.25 on behalf of the first Petitioner to show the validity of the election of the office

bearers. The xerox copy Ex.B.19 did not contain the name of the eighth Petitioner whereas the Ex.B.25 had his name. P.W.1 filed a complaint

before the Respondent, Inspector of Police (Crimes), Koilpatti for offences punishable under Sections 193, 463, 467 and 471 of the Indian Penal

Code. The police registered a case in Cr. No. 573 of 1988 and after investigation filed a charge sheet for the said offences against the Petitioners.

The proceeding is pending before the court below, which has been challenged by the Petitioners

Heard Mr. G. Krishnan, learned Senior Counsel for the Petitioners and Mr. G. Rajan, learned Government Advocate for the Respondent. The

only ground raised by learned Senior Counsel on behalf of the Petitioners is that the court could not have taken cognizance of the offences on the

basis of the charge sheet filed by the police as Section 195 of Code of Criminal Procedure is a bar. He has pointed out that taking cognizance on

the basis of police report is illegal.

Section 195 of the Code of Criminal Procedure reads as follows:

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.

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, 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 u/s 471, Section 475 or Section 476, of the said Code, when such offence is alleged the

have been committed in respect of a document produced or given in evidence in a proceeding in any court, or except on the complaint in writing of

that court, or of some other court to which that court is subordinate.

4-A. Mr. G. Rajan, learned Government Advocate appearing for the State submitted that Section 467 of the Indian Penal Code is not included in

Section 195 of the Code of Criminal Procedure and hence, there is no bar for the court to take cognizance on the basis of the charge sheet filed by

the police,. But, in Section 195(b)(ii) of the Code it is mentioned that any offence described in Section 463 of the Indian Penal Code which is only

a definition clause of forgery. Section 467 of the Indian Penal Code is a penal clause for forgery of valuable security, will, etc. which comes within

the preview of Section 463 of the Indian Penal Code. Hence, Section 467 of the Indian Penal Code is also included in Section 195 Code of

Criminal Procedure Even otherwise, learned Senior Counsel has invited my attention to a decision in Bala Mohan, C.H. and others In re (1986

L.W. (Crl.) 34.) In the said decision, the court has observed that on the same facts a general offence not requiring a complaint of a court or a

public servant being committed along with more aggravated particular form of offence. Prosecution cannot circumvent Section 195 Code of

Criminal Procedure by resorting to proceed with the general minor offence, without attempting to move to court or an officer concerned for taking

action u/s 195 Code of Criminal Procedure It is pointed out that complaint has to be considered as a whole and no splitting up of facts should be

done and the court should not disregard some of the facts and try and accused person for an offence which the remaining facts disclose and that

the court should not take cognizance at all unless a special complaint has been filed. This gives a clear answer to the submission made by learned

Government Advocate. Hence, I find that the court could not have taken cognizance of the offence and proceed against the Petitioners.

For the reasons stated above, I allow this petition and quash the proceedings against the Petitioners pending in CC. No. 251 of 1988 on the file

of the Judicial Magistrate-I, Koilpatti.