Ramesh Prasad Singh vs State Of Madhya Pradesh

This application under section 482 of the Cr.P.C. has been filed to invoke the extra ordinary jurisdiction of this Court and to set aside the orders dated

7.5.2018 & 25.7.2018 passed by JMFC Deosar, District Singrauli in MJC No.30/2018 and 1st ASJ, Deosar District Singrauli, respectively, wherein the

applicant SHO Bargawan has been convicted for offence under section 175 of the IPC and sentenced to fine of Rs.200/- to be recovered from the

salary of the SHO Bagrawan and to deposit the same before the Court.

Bereft of the unnecessary details, the facts requisite for the disposal of this application are that in criminal case No.1789/2011, filed by Police

Station, Bargawan in connection with Crime No.384/2011 for offence under section 20 (b) of the NDPS Act. A notice was issued by the learned

JMFC, Deosar to SHO Bagrawan, District Singrauli for production of contraband vide memo dated 17.04.2018.

It was directed to produce the contraband relating to Crime No.384/2010, which was seized from Gyanendra Prasad Pandey S/o Ram Lallu Pandey

on 11. 12.2011 at village Dhavaiya Jobgad and subsequently, the same was sent to FSL Bhopal for analysis. The same was necessary for exhibiting or

proving the contraband, enclosing the copy of letter addressed to FSL Bhopal, with request to analyze the same. On 27.04.2018, the applicant

submitted to the Court of JMFC, Deosar that the said contraband could not be found in the Malkhana of Police Station nor any FSL report has been

received from the FSL, Bhopal. It was further informed to the Court that Constable No.608 Dilip Kannoj was sent to Bhopal on 26. 40.2018 for

obtaining the report, as soon as the report will be received, the same be produced before the Court, hence, request was made for a further date.

The learned JMFC has taken cognizance of offence under section 175 of the IPC r.w. 345 of the Cr.P.C. against the applicant SHO Police Station

Bargawan, District Singrauli and registered MJC No.30/2018. The applicant was served the notice on 27.04.2018, to explain the circumstances, why

proceeding may not be initiated under section 175 of IPC r.w. 345 of the Cr.P.C. For non-compliance of the order dated 17.04.2018. This letter was

received by the applicant on 03.05.2018.

The applicant was to submit his explanation on or before 5.5.2018.

The applicant issued notice to Head Constable No.250 Ramesh Prasad, who had been assigned to obtain the FSL report with regard to contraband

seized in connection with Crime NO.384/2010 for offence under section 20(b) of the NDPS Act. It was also called upon to explain the circumstance

in which he did not submit his explanation, so that the same be appraised to the Court. Head Constable Ramesh Prasad submitted his explanation in

writing to SHO Bargawan dated NIL and explained that he searched the contraband in connection with Crime No.380/2010.

On 26.04.2018, constable Dilip Kannoj was sent to Bhopal for obtaining the FSL report of the contraband. But the report could not be obtained. On

28.04.2018, an application was made to the Court for granting more time. In this explanation, he has mentioned that the property register indicates that

offence related to the Crime No.384/2010 is not correct and it ought to have been Crime No.384/2011. Therefore, he submitted that he has not

committed any mistake knowingly. SHO Bargawan has submitted his reply on 03.05.2018 to the learned JMFC, Deosar explaining the circumstances

and mentioning that crime number was wrongly mentioned as Crime No.384/2010 which ought to have been Crime No.384/2011. Hence, the applicant

requested that file of MJC be drawn against him. Though, explanation was not accepted but on 07.05.2018, nine page order has been ordered by the

learned JMFC holding that Crime No.384/2010, even if wrongly mentioned, but the name of the accused, the date of seizure has been mentioned.

Therefore, SHO Bargawan, failed to attend the Court in person and to produce the relevant document, record/report within the time limit fixed by the

Court, in obedience of the summon issued, he committed the offence under section 175 of the IPC. It would be appropriate to mention here that

learned JMFC has further held that the applicant/SHO has committed offence under section 175 of the IPC and failed to show cause against alleged

summary proceeding under section 175 of the IPC r.w. section 345 of the Cr.P.C. and held him guilty for contempt under section 175 of the IPC r.w.

section 345 of the Cr.P.C. and punished him with fine of Rs.200/-.

Learned trial Court has further directed to send a memo to the S.P. Singrauli to deduct this amount from the salary of the applicant and to deposit in

the Court on or before 05.06.2018 and further directed to enter the fact of imposition of such penalty in the service record of the offender (the

applicant) and inform the Court about the compliance. Copy of the same be also sent to the Inspector General of Police, Head Quarter, Bhopal for

information and necessary action. The case was not closed but kept pending for depositing of fine amount. On 05.06.2018, the matter was taken up

and further directed to issue a letter to the S.P. Singrauli to comply the order dated 07.05.2018, and the case was again adjourned to 2. 07.2018.

Memo dated 07.05.2018 was issued to the S.P. Singrauli for compliance along with copies of the order and notice addressed to the applicant along

with memo dated 17.04.2018.

Against this order, a criminal appeal was preferred before the 1st ASJ Deosar, Singrauli in the right earnest. The appeal was delayed by 13 days. It

is contended that because the applicant was transferred from Singrauli to Satna, therefore, from 22. 05.2018 to 06.06.2018, the applicant could not

make any effort. On 07.06.2018 when MJC was pending before the JMFC Deosar, the applicant prays for apology for the same which was not

accepted. The delay of 13 days in filing the appeal was also refused by learned 1st ASJ and dismissed the revision on 25.07.2018. Hence, the present

petition has been filed.

On behalf of the applicant, it is contended that though the applicant was accused in this case but he was not in custody. Therefore, it was not a case

in which the Court was to pronounce judgment immediately. Order dated 07.05.2018 was passed in absence of the applicant. The applicant has

impeccable service record till date and received numerous accolades from the Government. During his service of 23 years, there was no sensor from

the judiciary during this period. It is also contended that the applicant was discharging his official duty, when he was making rigorous effort to track

the FSL report. But the learned JMFC did not seek any previous sanction from the government before proceeding against the applicant. The

observation made by learned JMFC that when the applicant was making rigorous effort to track the FSL report. The applicant was not the

investigating officer at the relevant time for which the offence was registered in the year 2011. The applicant has joined the police station after about

six years. Therefore, he was not having any personal knowledge of the case. Hence, the applicant’s action are bonafide. The applicant is the

citizen of India and as such enjoys the protection of all the fundamental and other rights as guaranteed under the Constitutional of India. Due to wrong

mentioning of crime number and due to lack of sufficient time to trace out the contraband, the delay was caused. The applicant has no malafide

intention in this regard. The applicant gave plausible explanation about the delay, which was not accepted nor apology was accepted. The order prima

facie reflects that method prescribed for recovery of fine beyond the scope of power prescribed under section 175 of the IPC r.w. 345 of the Cr.P.C.

Therefore, it is requested to set aside the orders dated 07.05.2018 and 25.07.2018.

Learned Government Advocate for the State has opposed the contention and submitted that the orders did not call for any interference.

It is observed that crime number has wrongly been mentioned in the letter dated 17.04.2018. The applicant was not the investigating officer in that

case. It is apparent from the record that Crime No.384/2011 in relation to which the contraband was seized, whereas in the letter dated 17.04.2018

issued to the applicant, crime number was wrongly mentioned as 384/2010. The applicant was not SHO at the relevant time. His explanation for

seeking further time was not allowed, for the reasons best known to the learned JMFC Deosar. It would be appropriate to note that when offence

under section 175 of the IPC has been committed, the Court ought to have adopted the procedure prescribed in section 195 of the Cr.P.C. The word

“explain of the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate for

offence under sections 172 to 188 (both inclusively) of the IPC indicates that, the Court could have made a written complaint to the Court to which it

is subordinate. If the acts alleged are offence under section 175 then, they constitute “contempt†and they can be taken cognizance by the Court

to whom, it is subordinate. In the case of Damri Lal Vs. Emperor AIR 1918 Patna 590, it has been held that in view of section 195(1)(a) of the

Cr.P.C., no Court can take cognizance of offence, punishable under section 175 of IPC, except upon the complaint by public servant or public

concerned or officer to whom such public servant or Judge was administratively subordinate. The complaint is not to be lodged when the concerned

document is not shown or proved to be in possession of the accused.

In the present case, the contraband seized in the Crime No.384/2011 was not in possession of the applicant at the relevant time. The words “no

Court shall take cognizance†have been interpreted on more than one occasion and it shows that there is an absolute bar against the Court, taking

seisin of the case except in the manner provided by this section. Section 195 (1)(a) merely prohibit entertain of a complaint any Court, governed by

Code of Criminal Procedure, without a complaint in writing of the public servant as required by Clause (a) or Court as required by Clause (b), which

means the learned JMFC could have filed a complaint before the Court to which it is subordinate, rather than to proceed with the MJC himself. The

public servant as defined under section 21 of the Indian Penal Code. “The cognizance of offence taken without complaint in writing by public

servant was held in valid†in the case of Lekhraj Hira Lal Vs. State of U.P. 2008 Cri.L.J. NOC 1118 (Allahabad). Reference can be made in case

of Daulat Ram Vs. State of Punjab AIR 1962 SC 1206 in this regard, wherein it is held that “when the Court has not filed any complaint nor any

FIR was lodged by the officer to which the Court was subordinate, apparently, there is a violation of requirement of this section, therefore, initiation of

the criminal proceeding is bad ab-initio.â€​

When the cognizance of offence cannot be taken except on the complaint of the Court before whom the alleged offence has been committed, no

useful purpose will be served by continuing the investigation. In case of Rit Lal Khatway Vs. State of Bihar reported in 2007 Cri.L.J. 593, it has been

held that “when Chief Judicial Magistrate was himself the complainant, he could not have lodged the complaint/petition in his own Court, as there is

clear provision that the complaint/petition can also be lodged at some other Court to which that Court is subordinate. The judicial discipline required

that, if the Chief Judicial Magistrate himself was the complainant, he should not have lodged the complaint/petition in his own Court.â€​

Before parting with the case, it would be appropriate to hold that the Court has to keep judicial restraint or constraint in deciding the matters

particularly, the offence against public justice.

With this observation, the petition is allowed. The proceeding of MJC No.30/2018 and orders dated 7.5.20418 and

25.7.2018 passed by 1st ASJ, Deosar are hereby quashed.

Copy of this order be sent to the Courts below for information.