Sawaran Singh vs State of Punjab

H.S. Bedi, J.(Oral)

By this petition under Section 482, Criminal Procedure Code, a prayer has been made that FIR No.54 dated 16.10.1992 registered under Sections 353/186/323, Indian Penal Code, be quashed. The learned counsel for the petitioner has urged that for the initiation of proceedings under Section 186, Indian Penal Code the procedure prescribed under section 195(1), Criminal Procedure Code, (hereinafter called the ''Code'') which provided for a complaint in writing by the public servant concerned was to be followed and this not having been done, the Court was not competent to take cognizance of the aforesaid offence. He has, in addition, urged that section 186, Indian Penal Code, being an aggravated form of the offence under section 186, IPC, the same principle would apply in the case as well. In support of his case, reliance has been placed by the learned counsel on Bhagat Ram v. State of Punjab, 1991(1) Recent Criminal Reports 193 . The provision of section l95(1) of the Code in so far as relevant are reproduced hereunder:

"No Court shall take cognizance

XaX XiX of any offence punishable u/s 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

XiiX of any abetment of, or attempt to commit such offence, or

XiiiX 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;

XbX(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 proceedings in any Court or

XiiX on any offence described in section 463, or punishable under sections 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...."

It will be seen from a reading of the aforesaid section that the bar imposed is specifically with regard to sections 172 to 188 of the Code and it is, therefore, clear that on the bare reading of the section, the court can take cognizance only on the complaint made in writing to the Court of a public servant with regard to the offence under section 186, Indian Penal Code. That having not been done and the proceedings having been initiated by a First Information Report, the charge under section 186, Indian Penal Code, to my mind, cannot be sustained. The reliance placed by the learned counsel as on the cited case is therefore fully warranted.

Mr. Chahal has further argued (as already indicated) that section 353 of the Code being only on aggravated form of the offence under section 186, the same procedure was required to be followed for the initiation of the proceedings. This argument, to my mind, is without any merit. If the framers of the Code desired that cognizance of the offence under section 353, Indian Penal Code was required to be taken in the same manner as in the case of section 186, IPC, this provision could also have been made in section 195 of the Code.

The learned counsel for the respondent has further urged that in view of the settled proposition of law unless prejudice could be shown to the petitioner on account of the proceedings having been initiated by the First Information Report rather than the complaint, this court should not quash the proceedings. There can be no quarrel with the general proposition raised by the learned counsel but where the jurisdiction for the very initiation of proceedings is completely barred under the law, prejudice to the accused is writ large.

For the reasons recorded above, this petition is partly allowed and the proceedings taken against the petitioner under section 186, Indian Penal Code alone are quashed.

The parties are directed to appear before the trial Court on 2971994.