Yasothai Ammal and T.P. Santhaseelan vs T. Velayudam

B. Akbar Bash Khadiri, J.—The instant Criminal Original Petition is to call for the records in C.C. No. 102 of 1999 on the file of the Judicial First Class Magistrate, Pondicherry and quash the same.

The facts which have led to the institution of the instant Crl.O.P. can be briefly staled thus:

The Respondent herein, Velayudam, is the owner of 1-1/2 Khani of land in R.S. No. 82 in Pondicherry. The first Petitioner is the mother of the second Petitioner. The second Petitioner looks after the affairs of the first Petitioner. On 28.02.1991, the first Petitioner obtained lease of this property for a period of three years. Later, the Respondent instituted proceedings in PCTPA No. 4 of 1993 for eviction of the first Petitioner, before the Revenue Divisional Officer/the Executive Magistrate, Pondicherry, who has passed orders on 16.07.1996 directing the first Petitioner herein to clear the rental arrears within thirty days. She did not do so. Therefore, the Respondent instituted E.P. No. 1 of 1996 before the same Court for eviction of the tenants. Pending the eviction proceedings, the Petitioners herein/tenants informed the Respondent herein/landlord that they have constructed a building in a portion of the premises and they have sold another portion of the leasehold property to some third person and by instituting eviction proceedings, the Respondent herein/landlord would not gain anything and therefore, the Respondent herein/landlord should come to terms with them and sell the property. The Respondent herein/landlord therefore filed a private complaint before the learned Judicial First Class Magistrate, Pondicherry against the Petitioners herein alleging that they have committed offences punishable under Sections 206, 207, 405 and 406 I.P.C. According to him, the Petitioners herein have effected fraudulent transfer and delivered possession of property to third parties to prevent eviction, which is an offence punishable u/s 206 I.P.C. and they have made fraudulent claim to the property by putting up construction, to prevent its seizure in execution. The complaint was also filed u/s 406 I.P.C. alleging that the Petitioners committed breach of trust, in that instead of delivering the property to the Respondent herein as per the order passed by the learned Revenue Divisional Officer/the Executive Magistrate, they have converted the same for their own use and thereby committed offence u/s 406 I.P.C. The learned Judicial First Class Magistrate entertained the private complaint preferred, u/s 200 Code of Criminal Procedure examined the complaint and then issued summons to the Petitioners herein/accused.

Now, the accused have preferred the instant Crl.O.P. seeking to quash the proceedings on the following grounds.

i) u/s 195(1)(b) of Code of Criminal Procedure there is a legal bar to take cognizance of the offence under Sections 206 and 207 I.P.C. on a private complaint i.e. on a complaint preferred by a private individual;

ii) The act committed is against the orders passed by the Revenue Court and therefore it is the Presiding Officer of the Revenue Court, who should lodge the complaint; and

iii) The continuation of the proceedings in C.C. No. 102 of 1999 is abuse of process of law.

The Respondent herein/complainant filed counter raising the following contentions :

i) The complaint had been preferred not only for offences under Sections 206 and 207 I.P.C., but also for offence u/s 406 I.P.C. Therefore, the complaint is valid.

ii) Even the offences under Sections 206 and 207 I.P.C. are eschewed, the complaint is valid for offence u/s 406 I.P.C. Even if there is a flaw by instituting a private complaint, such flaw is curable one as per the provisions of Section 465(1) Cr.P.C.

iii) The trial has commenced and such objection has to be raised before the trial court at the earliest opportunity; and

iv) The Presiding Officer of the Revenue Court is also participating in the trial in C.C. No. 102 of 1999, in that he has been added as a witness to the proceedings. Therefore, no failure of justice could be caused.

Heard both the sides. Sections 206 I.P.C. recites as under:

Fraudulent removal or concealment of property to prevent its seizure as forfeited or in execution. Whoever fraudulently removes, conceals, transfers or delivers to any person any property or any interest therein, intending thereby to prevent that property or interest therein from being taken as a forfeiture or in satisfaction of a find under a sentence which has been pronounced, or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 207 I.P.C. recites as under:

Fraudulent claim to property to prevent its seizure as forfeited or in execution. Whoever fraudulently accepts, receives or claims any property or any interest therein, knowing that he has no right or rightful claim to such property or interest therein, or practices any deception touching any right to any property or any interest therein, intending thereby to present that property or interest therein from being taken as a forfeiture or in satisfaction of a find under a sentence which has been pronounced or which he knows to be likely to be pronounced by a Court of Justice or other competent authority, or from being taken in execution of a decree or order which has been made, or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both". Careful perusal of the complaint would clearly indicate that the acts averred in the complaint attract the ingredients of offence under these provisions. According to the Respondent/complainant, such act were done in disobedience of the order passed by the Revenue Court, Pondicherry.

The question is whether the Revenue Court should institute prosecution or the affected party can institute prosecution. It would be useful to recall the provision of Section 195(1)(b)(i) Cr.P.C., which recites as under:

195, Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence:

i) No Court shall take cognizance

a) ... ... ...

b) (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 proceeding in any Court.

of

(ii).... .... ....

In Laljibhai, A.1971 SC 1935,, the Apex Court has indicated the object and purpose of bar contained in Section 195 Code of Criminal Procedure which recites as under:

the purpose and object of the bar against cognizance of private complaints in regard to the offences mentioned in s195(1)(b) is both to save the accused from vexatious of baseless prosecutions spited by feelings of vindictiveness on the part of the private complainants and also to avoid confusion likely to arise on account of conflicts between findings of courts in which forged documents are produced or false evidence is led and the conclusion of the criminal courts dealing with the private complaint. It is for this reason that the legislature has entreated the court, whose proceedings had been the target of the offence or perjury to consider the expediency in the larger public interest, of a criminal trial of the guilty party.

Therefore, in matters which fall under Sections 206 and 207 I.P.C. it is clear that a complaint in writing should be preferred by the Presiding Officer of that Court or a Presiding Officer to which that Court is superior.

Now, the Respondent contends that even if it is a flaw, that is curable u/s 465(1) Code of Criminal Procedure It has to be pointed out that the Provisions of Section 195 Code of Criminal Procedure is imperative. Cognizance of offence mentioned in it without a proper complaint is an illegality, not curable by the provisions of Section 465 Cr.P.C.

In Govind Mehta Vs. State of Bihar, while considering identical question, the Apex Court pointed out as under:

...The Magistrate has normally got jurisdiction to take cognizance u/s 190 of the Code in the circumstances enumerated therein.

Section 195 is in fact a limitation on the unfettered powers of a magistrate to take cognizance u/s 190 of the Code. Therefore, at the stage when the Magistrate is taking cognizance u/s 190, he must examine the facts of the complaint before him and determine whether his power of taking cognizance u/s 190 has or has not been taken away by any of the Clauses (a) to (c) of Section 195(1). Therefore, it is needless to state that if there is a non-compliance with the provisions of Section 195 the Magistrate will have no jurisdiction to take cognizance of any of the offences enumerated therein.

While dealing with identical question, which came up before T.S. Arunachalam J. in Ponnuchamy, Inspector of Police v. Shyambanandam (1989 L.W.(Crl.) 412), the noble Judge pointed out that the bar u/s 195 is a legal bar which cannot be regularised.

Therefore, when there is a legal bar for the Magistrate to exercise his jurisdiction without even ascertaining whether he has power to take cognizance u/s 195 Cr.P.C., even if he takes cognizance, the noncompliance would indicate that he will have no jurisdiction to take cognizance of. Therefore, when the Magistrate is confronted with a complaint of the private individual, he could not even examine the complaint u/s 200 Code of Criminal Procedure The non- application of mind by the learned Judicial First Class Magistrate in considering whether he has power to take cognizance would go to the root of the matter and it cannot be cured as an irregularity u/s 465 Cr.P.C.

The next contention of the Respondent is that the complaint has not been preferred under Sections 206 and 207 I.P.C. only, but it has also been preferred u/s 406 I.P.C. and therefore, even if the complaint cannot be proceeded regarding offences under sections 206 and 207 I.P.C., the complaint is valid so far as the offence u/s 406 I.P.C. is concerned.

Again it should be pointed out that this question has been considered by T.S. Arunachalam, J. in Ponnuchamy, Inspector of Police v. Suyambanandam cited, supra, wherein the noble Judge has pointed out that the prosecution cannot circumvent Section 195 Code of Criminal Procedure by resorting to prosecute for other offences also.

The same view has been reiterated by my learned brother M. Karpagavinayagam J. in A. Varghese and Anr. v. Chellappan 1998 (1) Cri 154). While considering similar case, the noble Judge has held that the Magistrate could not take cognizance except on complaint in writing of that court and that the complaint and proceedings were liable to be quashed.

Such an attempt would be an evasive method of camouflaggy offence which falls within the ambit of Section 195 Cr.P.C., to bring down the procedure made for those offences to the common procedure of trying the other offences, cannot be permitted.

It is contended by the learned counsel for the Respondent that the objection regarding the complaint goes to the root of the case and it should have been raised before the lower Court and at the earliest opportunity, it has to be decided as preliminary objection. Though that may be a general rule, considering the peculiar facts and circumstances of the case, I feel that the delay by itself may not be fatal.

The last objection raised by the Respondent is that though the complaint ought to have been preferred by the Revenue Divisional Officer/the Executive Magistrate, the Presiding Officer himself had been added as a witness by instituting separate miscellaneous petition and in view of his having been impleaded as a witness, there would be no failure of justice. The contention looks like begging the question. The Presiding Officer, who, with all his majesty should have appeared as a complainant to upkeep the dignity and majesty of law, had been added as a witness to the proceedings. The very participation of the Presiding Officer as a witness losing his character as the Judge/Complainant, would itself indicate that there is failure of justice in the proceedings. I a.m. satisfied that there is abuse of process of law in the instant case. This Crl.O.P. has to be allowed. Accordingly, this Criminal Original Petition is allowed. The further proceedings in C.C. No. 102 of 1999 stands quashed. Consequently, Crl.M.P. Nos. 11151 and 11152 of 1999 are closed.