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Judgment
By way of the instant misc. petition under Section 482 Cr.P.C., the petitioners herein have approached this Court for challenging the order
dated 10.02.2017 passed by the learned Additional Sessions Judge No.2, Chittorgarh in revision whereby, the learned revisional court dismissed
the revision preferred by the petitioners and affirmed the order dated 10.07.2014 passed by the learned Judicial Magistrate, Kapasan, District
Chittorgarh in connection with FIR No.93/2013 registered at the Police Station Akola, District Chittorgarh, taking cognizance against the
petitioners for the offences under Sections 191 and 193 IPC.
The complainant lodged the above mentioned FIR against the petitioners with an allegation that the petitioner No.1 Smt. Prem Devi, while
contesting the election for the post of Sarpanch, Gram Panchayat Gundali, District Chittorgarh, made false declarations regarding her date of birth,
etc. The police investigated the matter and submitted a negative final report with the observation that the matter relates to an election dispute.
Nonetheless, the trial court took cognizance against the petitioner in the above terms. The order taking cognizance was affirmed by the learned
Additional Sessions Judge in revision as mentioned above.
A negative final report was submitted by the police after investigation of the FIR No.93/2013 lodged by the respondent complainant at the
Police Station Akola observing that the provisions of Section 195(1(b) Cr.P.C. clearly prohibit that no court shall take cognizance of the offences
punishable under Sections 193 to 196 IPC unless a complaint is filed in this regard by the officer/ authority concerned of the Election Commission
before whom, the false declaration was made.
The matter can be decided on a very short question that whether the court could have taken cognizance against the petitioner for the offence
under Section 191 IPC on the basis of a false statement given before a public servant in view of the specific bar contained in Section 195(1)(b) of
the Cr.P.C. which reads as below:
Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to
documents given in evidence.
(1) No Court shall take cognizance-
(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) 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;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), 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 proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 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
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-
clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
Manifestly, as the above mandatory provision bars jurisdiction of the Court to entertain a prosecution save upon the complaint in writing by the
public servant (which in this case would have been the Returning Officer) before whom the false declaration was made, the order taking
cognizance is bad in the eye of law. That apart, the offence if any made out against the petitioners would not be of giving false evidence punishable
under Section 193 IPC but of making a false declaration which is punishable under Section 171G of the IPC. For this offence also, proceedings
can only be initiated by the public servant concerned. Be that as it may. Manifestly as the order taking cognizance was passed without there being
any complaint of the public servant concerned, the same cannot be sustained, as being grossly illegal.
In view of the discussion made herein above, the instant misc. petition deserves to be and is hereby allowed. The impugned order dated
10.07.2014 passed by the learned Judicial Magistrate, Kapasan, District Chittorgarh and order dated 10.02.2017 passed by the learned
Additional Sessions Judge No.2, Chittorgarh and all proceedings sought to be taken thereunder against the petitioners are hereby quashed.
Stay application is disposed of.