Pankaj Aggarwal and Others vs State of Delhi and Others

G.B. Pattanaik and U.C. Banerjee, JJ.—Leave granted.

The accused is the Appellant. On the basis of F.I.R. lodged by the driver of D.T.C. bus, the investigation was carried on and the police finally filed charge-sheet under Sections 186, 332 and 353/34 of the Indian Penal Code. The Magistrate, however, took cognizance of the offence and framed charges under Sections 186 and 332/34, I.P.C. The accused then moved the High Court u/s 482, Cr. P.C. alleging that in view of Section 195 of the Code of Criminal Procedure, cognizance u/s 186, I.P.C. as well as u/s 332, I.P.C. could not have been taken. The High Court having rejected the application, the accused is before us.

Mr. Jain appearing for the accused Appellant contended that in view of Section 195 of the Code of Criminal Procedure, the Magistrate could not have taken cognizance of the offence u/s 186, I.P.C. as it is barred u/s 195(1)(a)(i). He further contended that even the cognizance u/s 332/34, I.P.C. also would be barred as the offence u/s 332, I.P.C. is a cognate offence, and, therefore, the entire proceeding is bad. Mr. Jain also further contended that the allegations made and the materials available on record do not make out any offence for which the accused has been charged. It is contended on behalf of the Respondents that though cognizance could not have been taken u/s 186, I.P.C. in view of the provisions contained in Section 195(1)(a)(i), but there is no infirmity with the order taking cognizance u/s 332, I.P.C. inasmuch as the ingredients of offence under Sections 332 and 186, I.P.C. are distinct and the Magistrate did not commit any error in taking cognizance of the offence u/s 332/34, I.P.C. Mr. Jain in course of his arguments relied upon three decisions of different High Courts. 1996 CCR 257 of Delhi High Court 1991 (1) RCR 192 of Punjab High Court as well as 1975 CCR 575 of the Patna High Court. In the Punjab High Court judgment, the provisions of Section 186 and 332, I.P.C. have been analysed and the judgment undoubtedly supports the contentions of Mr. Jain. But in view of the judgment of this Court in Durgacharan Naik and Others Vs. State of Orissa, , where the Court has analysed the provisions of Section 353, I.P.C. and 186, I.P.C. and held that the two are distinct offences and the quality of the offence is also different, we are of the opinion that judgment of the Punjab High Court is not correct in law and has taken a view contrary to the law laid down by this Court. What has been stated earlier in the aforesaid case in relation to the provisions of Section 353, I.P.C. would equally apply to the provisions of Section 332 of the I.P.C. This being the position, we are unable to accept the contention of Mr. Jain that the provisions of Section 195(1)(a)(i) bars taking cognizance of Section 332/34, I.P.C. We, however, agree with Mr. Jain that the order taking cognizance of Section 186 of the I.P.C. is bad in law and attracts the mischief of Section 195. In the aforesaid premises, we quash the criminal proceedings so far as the charge u/s 186, I.P.C. is concerned and direct that the criminal proceedings would continue so far as the charge u/s 332/34, I.P.C. is concerned.

The appeal is disposed of accordingly.