Tej Pal vs Amar Singh

G.S. Chahal, J.

Tej Pal has come to this Court in revision against the order dated 271090 passed by the Addl. Sessions Judge, Kurukshetra.

The facts leading to this revision may be briefly stated. The case First Information Report dated 31384 under section 380 of the Indian Penal Code, at Police Station Sadar, Thanesar was registered on the statement of the petitioner who is also Sarpanch of village Malhana. He alleged that Amar Singh respondent had intentionally cut and removed Kikkar trees from the land belonging to the Gram Panchayat. After investigation the Police put in report under section 113 of the Code of Criminal Procedure against the respondent. Copies of the relevant documents were supplied to the respondent. The case was adjourned for consideration or charge. Before the charge was framed, the respondent brought a criminal miscellaneous in this Court under the provisions of section 482, Code of Criminal Procedure for quashing of the impugned First Information Report and the proceedings pending before the Chief Judicial Magistrate. The FIR was quashed and the following observations were made in that judgment :

"...Mr. Vinod Kumar, learned counsel for the respondent very fairly and frankly concedes that in the case under section 145, Cr.P.C. the Executive Magistrate, Kurukshetra, vide his order dated January 29, 1984 has found that the Gher in dispute and the trees standing therein, were in possession of Amar Singh petitioner. He further states that the case FIR No. 58 dated 3 131984 under section 390, Indian Penal Code, lodged by the complainant party was, with regard to the same trees which were standing in the Gher in dispute. This, it is apparent that no criminal case is made out against the petitioner and the FIR appears to have been registered against him as a measure of harassment. Thus, I quash the above noted FIR and the proceedings taken thereunder now pending in the Court of Sh. L.N. Mittal, Addl. Chief Judicial Magistrate, Kurukshetra."

The respondent then filed a complaint under section 211, IPC on the basis of which the petitioner was summoned to stand trial. The petitioner challenged this order of the Magistrate in revision before the learned Addl. Sessions Judge, who, vide his order dated 21290, accepted the revision by holding that the Magistrate should have filed the complaint under sec. 211, IPC instead of summoning the accused on the complaint of the respondent to face trial and remanded the case, with a direction to the Magistrate to proceed according to law. The respondent urged before the Magistrate that since the proceedings were caused to be instituted by the petitioner, knowing fulwell that the information given by him was wrong, the Court should file a complaint under the provisions of section 340 Cr. PC with regard to offences affecting the administration of Justice and the Magistrate, vide his order dated 15390, held that the complaint was not competent as sanction under sec, 195, Cr. PC was required and then dismissed the same.

Against this order, the respondent went in appeal before the Addl. Sessions Judge, who, vide the impugned order, set aside the order of the Magistrate and directed that the Magistrate shall lodge a complaint against the petitioner for offence under Sec. 211, IPC in accordance with the procedure laid down in section 340, Cr. P.C.

Sh. H.S. Hooda, learned Senior Advocate has urged that no proceedings were pending before the Magistrate on the basis of the report submitted under section 173, Cr. PC and if any act was performed by the Magistrate on the basis of the Police report, it was only a ministerial act and as such, section 195(1)(b) is not a bar and if any complaint was to be filed it could be filed by the respondent himself and not by the Magistrate. Sh. Hooda also urged that if any Court was to institute a complaint, it was only the High Court which heard the criminal miscellaneous for quashing of the proceedings. He further urged that no offence under section 211 of the Indian Penal Code has been committed by the petitioner as he did not bring the accusations against the respondent before the Court and it was only the Police which presented the report.

I am of the view that these arguments of the learned Senior Advocate do not have any substance. Section 211 of the IPC provides as under :

"Sec. 211 False charge of offence made with intent to injure. Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceedings against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years of with fine or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which way extend to seven years, and shall also be liable to fine."

It is not disputed at the bar that the FIR was registered on the basis of the statement made by the petitioner and the allegations made were of felling and removing the Kikkar trees by the respondent from the land owned by the Gram Panchayat. The petitioner wanted the Police to take action and prosecute the respondent in the Court. These charges were held to be false and to be only an act of harassment of the respondent in the criminal miscellaneous decided by this Court. Prima facie all the necessary ingredients of the offence were made out.

The Magistrate on receipt of the report under section 173, Cr. PC, took cognizance of the offence by virtue of section 190(1)(b), Cr. PC and after having supplied the copies of the relevant documents, proceeded to the stage of consideration of charge. That procedure was valid in accordance with section 238, Cr. P.C. I am unable to endorse the arguments that no proceedings had been initiated so far in the Court of the Magistrate and he had only dealt with the case as a ministerial act. A Full Bench authority, Emperor. v. Hayat Fateh Din, AIR (35) 1948 Lahore 184 (C.N. 50) dealt with a matter where the cancellation report was submitted by the Police and the Magistrate passed the necessary. order of discharge on the basis thereof. It was in that situation that the act of the Magistrate was considered to be one of ministerial nature.

Section 195, Cr. PC, so far relevant, may be quoted as under :

"Sec. 195 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, 265 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.....

" The question that arises for decision is, what offence can be alleged to have been committed in or in relation to any proceeding in any Court. In F.A. Brown v. Anand Lal, (17) 44 Cal. 650, the following paragraph of an earlier judgment, cited as Tayabullah v. Emperor, 24 CLJ 134 was quoted with approval as under :

"A sanction is requisite in respect of an offence under Section 211, Penal Code, only when such offence has been committed in or in relation to any proceedings in any Court; no sanction is necessary when a false charge has been made to the police and has not been followed by a judicial investigation thereof by a Court. The position is different where upon the police report as to the falsity of the complaint the complainant insists upon a judicial investigation; if he does so, he is deemed to have preferred a complaint to the Magistrate; if the Magistrate finds his case to be false, a sanction would be requisite under Section 195(1)(b), as the offence may be said to have been committed in a proceeding in a Court."

Teja Singh, J, in Hayat Fateh Din''s case (supra) observed as under :

"I do not subscribe to the proposition that before a charge can be regarded as having been committed in relation to a proceeding in Court the proceeding must actually be pending at the time the charge is made because if the charge is made with the clear intention of initiating proceedings in Court and the proceedings actually do take place in consequence or the charge. it would certainly be in relation to proceedings. I, however, agree that if the particular charge does not result in any proceedings, in Court, Section 195(1)(b) cannot apply. The question whether when the charge is made the maker of the charge had the intention of initiating proceedings in Court is one of fact and must be decided in the light of evidence and the circumstances of each case. The mere fact that the charge is made in a report to the police does not necessarily prove such intention."

In the present case, the charge was levelled by the petitioner before the Police and the FIR was got registered by making allegation against Amar Singh respondent, having cut, felled and removed the Kikkar trees from the Gram Panchayat land. This was clearly with the intention of getting a charge instituted against, the respondent in a Court of law and the Police having acted on that report, did file a report under section 173 of the Cr. PC against the respondent. This charge was ultimately held to be false and meant for harassment of the respondent. Thus, an offence under section 211, IPC was committed in relation to proceedings in a Court and section, 195. Cr. PC is attracted and prosecution can be launched only by the Court, before which the charge was levelled. There is no force in the contention of the learned counsel that the falsity of the charge having been examined by the High Court in the criminal miscellaneous, it was only the High Court which was competent to file a complaint.

In view of the foregoing discussion, I do not find any force in this revision and dismiss the same.

Revision dismissed.