G. Pantigongpou vs State of Manipur

J. Sangma, J.—By this application u/s 482 Code of Criminal Procedure the Petitioner prays for quashing the FIR No. 55 (11)/90 of Nungba PS which was registered u/s 188/34 IPC.

The facts in short are as follows:

The SDO, Nungba, by his order dated 20.3.86 appointed the complainant (Sohhem Gonjai) as Khullakpa of Taosang village in Tamenglong district. The complainant filed a complaint dated 25.10.90 in the Court of CJM, Tamenglong, alleging that the accused, namely, (1) Shri. G. Pantigongpou and (2) Shri G. Ramjanlung disobeyed the order by calling a meeting of the villagers on 8.9.90. The accused No. 1 also claimed to be the Khullakpa. It was further alleged that the accused persons also threatened the complainant when he served notice to them asking to appear and to give show cause statement of the said notice which was published by them on 12.9.90. The CJM forwarded this complaint to Tamenglong PS which then registered Case No. FIR 13 (12) 90 u/s 188/34. Subsequently, the case was transferred from that PS to Nungba PS, as the place of occurrence fulls under the jurisdiction of this PS. Nungba PS then registered it as FIR No. 55 (11)/90.

The contention of Mr. A. Nilamani Singh, leaned counsel for the Petitioner is that Section 188 IPC is controlled by Section 190 IPC which in turn is controlled by Section 195 Code of Criminal Procedure and therefore even if the police submit a report on finding materials, the magistrate to whom the complaint was filed would not be able to take cognizance and therefore this would mean only wasting of time of the I/O and harassment to the Petitioners who are accused in the case. Aghast this Mr. Shyairt Kishore, learned PP has contended that in the amended Code of Criminal Procedure the section has become cognizable and therefore the police can investigate the case. He also stated that there is also an allegation of threat which would come u/s 506 IPC. He submitted that the proceedings before the police are not liable to be quashed. Mr. Nilamani has referred to page 1054 of Mitra''s Code of Criminal Procedure 16th Edn. wherein it is said:

(c) Absence of complaint Private individuals are not to be allowed to evade the restrictive provisions of Section 195 Code of Criminal Procedure and to bring prosecutions which should properly be brought by the courts themselves.

In the absence of the complaint required by Section 195, the magistrate acts without jurisdiction in summoning the accused and the subsequent proceedings are, therefore, void.

Where the court has acted without jurisdiction with regard to a part of the trial (i.e. in respect of one of several offences), the whole proceedings are vitiated.

At page 1989 of Sohoni''s Code of Criminal Procedure it is said:

The opening words of Section 190(1) "subject to the provisions of this chapter" indicate that this section is to be read subject to the other section of the chapter and is controlled by Section 195.

At page 2085 of the same book it said:

No Court shall take cognizance of any offence u/s 172 to 188 Penal Code except on complaint in writing of the public servant concerned, As a general rule any person having knowledge of the commission of an offence may set the law lit motion by a complaint, even though he is not personally interested or affected by the offence. But there are exception to this general rule of which examples are Sections 195 to 196. Because of Section 195(1)(a) no court can take cognizance of any offence mentioned therein unless a complaint as required is filed.

It was held by Supreme Court in Daulat Ram Vs. State of Punjab, that:

Where a person reports to a Tehsildar to take action of averment of certain facts, believing that the Tehsildar would take so me action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned u/s 182, and not leave a to the police to put a charge sheet. The complaint may be in writing by the public servant concerned. The trial u/s 182 without the Tehsildar''s complaint in writing is therefore without jurisdiction ab initio.

In Govind Mehta Vs. State of Bihar, also the Supreme Court held that non compliance with Section 195 Code of Criminal Procedure which imposes a limitation of power on magistrate to take cognizance of the offence mentioned in section deprives (sic) of jurisdiction to lake cognizance of those offences. In view of these decisions and the notes of Mitra and Sohoni which 1 have reproduced above, it is clear that even if the I/O In the instant case finds some materials u/s 188 and submit report, the magistrate to whom the complaint is made would not have the jurisdiction to take cognizance of the case and therefore the investigation, if carried out, would be of no effect. The learned PP then argued that in the complaint there is also an allegation for threatening which would come u/s 506; and so, it is competent to the I/O to investigate this part of the allegation. I find that there is no clear statement as to in what way the accused have threatened him. So, unless the complainant can improve the case of threatening, no case is made out also u/s 506. In view of this legal position, the remedy left to the complainant is to approach the officer or the authority concerned and request him to file a complaint u/s 195 Code of Criminal Procedure It may be noted that the case was registered in 1990 and the learned PP cannot say at what stage the Investigation is now lying. On the facts and circumstances of the case which I have stated above, I am of the view that no useful purpose would be served by allowing the investigation to go on.

In the result, the petition is allowed and the proceedings are quashed. It would, however, be open to the complainant to move the authority whose order the accused have violated to file the complaint.

A copy of this order should be sent to the Superintendent of Police under which Nungba PS is situated.