Tej Singh vs State of Rajasthan and Others

Narendra Kumar Jain-II, J.—Order dated 20.06.2009, taking cognizance against the petitioner for offence u/s 182 of Indian Penal Code(for short ''the IPC''), passed by learned Special Judge, SC/ST(Prevention of Atrocities Cases), Dausa (hereinafter referred to as ''the Trial Court'') in Criminal Case No. 791/2009(55/2009), is under challenge in this revision petition filed by the accused-petitioner u/s 397 read with Section 401 Cr.P.C. Briefly stated the facts of the case are that the petitioner, Tej Singh, being a Vigilance Officer-Assistant Engineer of Jaipur Vidyut Vitran Nigam Limited, Bandikui, District Dausa lodged an F.I.R. against Non-petitioner No. 3, Gyarsa S/o. Mangi Lal Bairwa(expired during pendency of this revision petition) before Police Station APTPS, District Dausa, DISCOM, Jaipur on 03.02.2007 for offence u/s 135 of Indian Electricity Act, 2003(hereinafter referred to as ''the Act of 2003'') with the contention that the Respondent No. 3, Gyarsa is thefting the electric energy by taking direct cable from LT electric line. On the basis of aforesaid report of the petitioner, An F.I.R. No. 34/2007 came to be registered at Police Station APTPS, District Dausa DISCOM, Jaipur for offence u/s 135 of the Act of 2003 and appointed Respondent No. 2 as Investigating Officer for investigation. After completion of investigation, Investigating Officer submitted Final Report No. 92/2008 dated 30.06.2008 before the learned Trial Court with the contention that no sufficient evidence has been found regarding theft of electricity and at the time of checking, the consumer has not produced any bill of electricity connection or any proof in this regard. So, in misunderstanding, VCR has been filled up by the petitioner, which reads as under:

Learned Trial Court, before accepting the FR, issued notice to the petitioner on 29.05.2009 treating that the FIR lodged by the petitioner is false and fabricated. The petitioner could not appear before the Trial Court due to government duty etc. and the learned Trial Court has taken the cognizance against the petitioner u/s 182 of the IPC vide order dated 20.06.2009, which reads as under:

Aggrieved by the aforesaid impugned order dated 20.06.2009, the accused-petitioner has approached this Court by means of this revision petition.

Mr. Nawal Singh Sikarwar, learned counsel for the petitioner has vehemently contended that impugned order passed by the Trial Court is illegal, arbitrary, unjust, improper and against the material available on record as well as beyond jurisdiction and the same deserves to be quashed and set aside, as the Investigating Officer has submitted Final Report on the basis of insufficient evidence regarding theft of electricity and also stated the reasons thereof in its final report. Learned counsel for the petitioner further submitted that the Trial Court has wrongly and without jurisdiction taken cognizance against the petitioner and it is settled law that the Court cannot take cognizance without receiving a complaint of facts, which constitute offence as per Section 190(1)(a) Cr.P.C. and the impugned order deserves to be quashed and set aside. The petitioner is a government employee and while acting or purporting to act in the discharge of his official duty, no Court can take cognizance of such offence, except with the previous sanction, but in this case, learned Trial Court has taken cognizance against the petitioner without previous sanction from the Government. Learned Trial Court is not empowered to take cognizance against the petitioner because the alleged offence is triable by a Magistrate. In support of his contentions, learned counsel for the petitioner has placed reliance upon the following decisions:

(i) Rakesh Kumar Mishra Vs. The State of Bihar and Others,

(ii) Madhav Singh v. State of Rajasthan, reported in 2004 (1) R.C.C. 394;

(iii) State of Rajasthan v. Dr. (Smt.) Pushpa Khilnani, reported in 2005 WLC (Raj.) UC 653; and

(iv) Sugan Chand v. State of Rajasthan & Anr., reported in 2004 (3) R.C.C., 1624.

Learned counsel for the petitioner, therefore, submitted that this revision petition be accepted and impugned order be quashed and set aside and also the proceedings pending before the Chief Judicial Magistrate, Dausa.

On the other hand, Mr. Sanjeev Kumar Mahala, learned Public Prosecutor appearing on behalf of the State has opposed the revision petition, but not seriously and frankly submitted that in this case, officer has not filed any complaint and has not prayed for initiation of the proceedings for false information which intend to cause public servant to use his lawful power to the injury of any person. Learned Public Prosecutor has requested to pass a just and proper order in the facts and circumstances of the present case.

I have heard the submissions of learned counsel for the petitioner as well as learned Public Prosecutor and also considered the relevant provisions of law, judgments cited by learned counsel for the petitioner and perused the record of the Trial Court.

The object of Section 182 IPC is that a public servant should not be falsely given information with the intend that he should be misled by a person, who believed that information to be false and intended to mislead him. Thus, It is an offence to give false information, which mislead a public servant into doing what he ought not to do. The prosecution must make out that the only reasonable inference was that he must have information or believed it to be false. In order to prove the offence u/s 182 of the IPC, the prosecution has to prove that the person to whom the information was given was a public servant and that the said information was false and the accused knew or believed such information to be false when giving it. The prosecution has further to show that the accused intended thereby to cause or knew that it was likely that he would thereby cause such public servant to do or omit anything which such public servant ought not to do or omit, if the true state of facts were known to him or that he intended thereby to cause or knew that it was likely that he would thereby cause such public servant to use his lawful powers to the injury or annoyance of any person.

It is true that to constitute an offence u/s 182 IPC, it must be shown that the person giving the information knew or believed it to be false, or that the circumstances in which the information was given were such that the only responsible inference is that the person giving the information knew or believed it to be false. It does not caste any burden upon the accused to show that when he made it, he believed it to be true. The prosecution must make out that the only reasonable inference was that the accused must have known or believed it to be false. Section 182 IPC requires that information given must be false to the knowledge of accused; the allegations found not proved is not necessarily false and false to the knowledge of the maker. Accused cannot be convicted u/s 182 IPC only because he fails to establish that the reported information was true. Before filing of complaint u/s 182 IPC, the Court must be satisfied that there is reasonable chance of conviction. In the present case, the expression of suspicion against Respondent No. 3, in a complaint of theft of electric energy to the police, does not amount to giving of false information. In the facts and circumstances of the present case, it was the duty of Respondent No. 3 to produce the proof of valid electric connection at the time of filling of VCR by the petitioner.

The onus is on the prosecution to prove that the information was false and false to the knowledge of the accused. The accused is not required to prove that the information was true. The provisions of Section 190(1)(c) Cr.P.C. are subject to the provisions of Section 195 Cr.P.C., which follows it and hence, a person cannot be prosecuted and convicted u/s 182 IPC, without there being a complaint in writing of a public servant against him, as required by Section 195 Cr.P.C. This Section has to be read in conjunction with Section 195(1)(a) Cr.P.C., which requires a complaint for offence under Sections 172 to 188 IPC to be filed by the public servant concerned or by some other public servant to whom he is administratively subordinate. No cognizance of offence u/s 182 IPC can be taken except upon the complaint, in view of Section 195(1)(a)(i) Cr.P.C., made by the public servant concerned or one to whom he is administratively subordinate.

In view of above discussions, the impugned order taking cognizance u/s 182 IPC by the Trial Court against the petitioner suffers from basic infirmity of illegality and, therefore, the same cannot be sustained and is liable to be set aside and this revision petition deserves to be allowed. Consequently, the revision petition is allowed. Proceedings in Criminal Case No. 791/2009(55/2009) and the impugned order dated 20.06.2009 passed by the learned Trial Court are quashed and set aside. Stay application also stands disposed of.