Smt. Kamla Devi vs The State of Bihar and Another

M. Saran, J.—In this application filed u/s 482 of the Code of Criminal Procedure (in short as the Code) prayer has been made for quashing the order dated 25.9.2006 passed by learned Additional Sessions Judge-F.T.C.V. Nalanda in Sessions Trial No. 549/2004, by which he has rejected the prayer for discharge of the petitioner from the case. There is also prayer for quashing the order dated 19.4.2004 passed in Complaint Case No. 110(c)/2004 corresponding to Tr. No. 523/2004 styled as Sheo Balak Prasad v. Smt. Karala Devi by which the learned Magistrate took cognizance u/s 211/34 of the Indian Penal Code against the petitioner and Ors.

It appears that on 5.8.1996 petitioner filed a petition a complaint vide Complaint Case No. 404c/96 in the court of Chief Judicial Magistrate, Nalanda at Biharsharif against opposite patty No. 2 and others for an occurrence which has allegedly taken place on 4.8.96, a copy of which was sent to the police u/s 156(3) of the Code for registration and investigation on the basis of which the police registered Bihar Sohsarai P.S. Case No. 349/96 u/s 364 of the Penal Code against opposite party No. 2 and others and after concluding the investigation submitted final form as false. The learned Chief Judicial Magistrate accepted the final form as submitted by the police and ordered that the case will proceed on the basis of protest petition. It appears that the protest cum Complaint Case No. 797c/2003 was not pressed by the complainant Kamla Devi and accordingly the same was dismissed by order dated 5.9.2003. Thereafter the opposite party No. 2 Sheo Balak Prasad filed Complaint Case No. 110c/04 in the court of chief judicial Magistrate, Nalanda at Biharsharif against Kamla Devi and others for offences punishable under Sections 182, 194, 195, 211, 500 and 120B of the Indian Penal Code. The complainant Sheo Balak Prasad was examined on solemn affirmation and altogether two witnesses were examined on his behalf during inquiry u/s 203 of the Code and the learned Magistrate by order dated 19.4.2004 took cognizance u/s 211/34 against Smt. Kamla Devi and her husband and ordered to issue summons against them. Thereafter the case was committed to the court of Session and on transfer it was received in the file of Additional Sessions Judge cum F.T.C.V. Nalanda at Biharsharif. Before the said court a Petition was filed on behalf of the petitioner to discharge her from the case on the ground that cognizance taken in the case is barred u/s 195(1)(b) of the Code. The learned Additional Sessions Judge heard the matter and by the impugned order dated 25.09.2006 rejected the prayer and posted the case for framing of change. Against the said order dated 25.9.2006 the petitioner has preferred the present application for quashing before this Court.

The submission of learned Counsel for the petitioner is that cognizance taken in the instant case is bad, illegal and without jurisdiction as it has been provided in Section 195(1)(b)(i) of the Code that no court shall take cognizance of the offence u/s 211 of the Penal Code when the offence is alleged to have committed in or relation to, any proceeding in any court except on a complaint in writing of that court of some other court to which that court is subordinate. As such cognizance for the offence u/s 211 of the penal code is barred. His further submission is that as the court has no jurisdiction to try the case in view of Section 195(b)(i) of the code and as such the impugned order dated 25.9.2006 passed by the trial court is also illegal. Learned Counsel in support of contention placed reliance on a decision reported in Kamlapati Trivedi Vs. State of West Bengal, . On the other hand, learned Counsel for opposite party No. 2 supported to the impugned order and submitted that Section 195(1)(b)(i)z has no application in this case and in support of his contention, learned Counsel placed reliance on a decision of the Apex Court reported in Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, given in the case of Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr.

The question that arises for consideration is whether on the facts of the case the bar against taking cognizance in Section 195(1)(b)(i) of the Code is attracted. Section 195(1)(b) of the Code reads as follows:

195(1) No court shall take cognizance-

(a) ...

(b)(i) of any offence punishable under any of the following sections of the IPC, 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 proceed in any court.

Section 190 of the Code thus lays down the conditions requisite for initiation of proceedings. Section 195 of the Code bars taking cognizance of certain offences except on complaint by the authorities specified in the section. In Clause (b) of Sub-section 1 mentioned above, the term "Court" means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the, purposes of this section. Then Section 195(1)(a) says, that the complaint should be by a public servant if the offences complained of are under Sections 172 to 188 IPC. Sub-section 1(b) refers to offence under Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 209, 210, 211 and 228 IPC and requires the complaint in writing of the court before whom the offence is alleged to have been committed in or in relation to any proceeding in any court.

Now the position in the present case is that the petitioner Kamla Devi filed Complaint case No. 404c/96 is the court of Chief Judicial Magistrate, Nalands at Bihaisharif on 5.8.96 on the basis of which Bihar Sobsarai P.S. Case No. 349/96 was registered in which police after investigation submitted final report as false which was accepted by the Court on 21.7.2003.

As protest petition filed by the informant was pending from before and therefore, the learned Magistrate proceeded further in the matter but as protest petition was not pressed, therefore, the same was dismissed by the learned Magistrate by order dated 5.9.2003. Thereafter opposite party No. 2 Sheo Balak Prasad who was an accused in the said case on 13.2.2004 filed Complaint Case No. 110c/2004 against Smt. Kamla Devi and Ors for offences punishable under Sections 211, 182, 194, 195, 500 and 120B IPC in which the learned Magistrate by order dated 19.4.2004 after due inquiry took cognizance u/s 211/34 of the Penal Code.

Now the question is whether the Chief Judicial Magistrate acted as a court when he passed the order dated 21.7.2003 accepting final report submitted by the police. In the decision relied upon by the petitioner it has been observed by the Hon''ble Apex Court in a similarly situated matter that the offence alleged to have been committed in relation to a proceeding in the court and therefore taking cognizance of it will be against the bar contained in Clause (b) of Section 195(1) of the Code as there wag no complaint in writing either of the SDJM or the superior court. In the present case what I find that final report submitted by the Police as false was accepted by the learned Chief Judicial Magistrate and thereafter he posted the matter for hearing on protest petition. As protest petition was not pressed by the informant i.e. the petitioner the same was dismissed. On the basis of complaint filed by opposite party No. 2 the learned Magistrate took cognizance u/s 211/34 IPC. Thus in taking cognizance the learned Chief Judicial Magistrate acted in contravention of the bar contained in Clause (b) of Section 195(1) of the Code as there was no complaint in writing of the Chief Judicial Magistrate or of any superior court. The decision relied upon by the petitioner''s counsel thus supports his argument.

On the other hand, the decision relied upon by learned Counsel for opposite party No. 2 i.e. Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, the matter was different. Forgery in the document was committed before the document was produced in court and in that situation it was held that the bar contained in Section 195(1)(b)(ii) of the Code would not apply where forgery of the document was committed before the said document was produced in court.

In the aforesaid situation this application is allowed and both the two impugned orders dated 25.9.2006 and 19.4.2004 are hereby quashed.