TaxTMI 
TaxTMI 
2024 (1) TMI 1519
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....95, 412 I.P.C., was submitted by the police on 20.2.2023 against the named accused as well as against the present petitioners. Learned Magistrate also took cognizance on the above charge sheet on 13.3.2023. Thereafter, non-bailable warrants were issued against the petitioners on 16.3.2023 and a proclamation under Section 82 Cr. P.C. was also issued on 20.5.2023 against the petitioners. Thereafter, the impugned F.I.R. under Section 174-A I.P.C. was lodged against the petitioners on 17.7.2023 at P.S. Lodha, District Aligarh. Submission of the petitioners 4. Learned counsel for the petitioners submits that the impugned F.I.R. is barred under Section 195 Cr. P.C. as this Section specifically provides that cognizance of any offence punishable u/s 172 to 188 I.P.C., cannot be taken by the court except on the complaint in writing of the court concerned or its officer. However, in the present case the F.I.R. has been lodged by the Investigating Officer and even charge sheet of the same cannot be termed as "complaint" as per Section 2(d) of Cr. P.C. because the same provides only for non-cognizable offences whereas Section 174-A I.P.C. is a cognizable offence. 5. In support of his ....
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.... 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 conspirac....
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....r law for the time being in force, arrest without warrant." 10. Therefore, it is clear that in cognizable offences, police can arrest the accused without warrant. It is also clear from perusal of Section 195 Cr. P.C. that offences, punishable u/s 172 to 188 I.P.C. are cognizable by the court only when a complaint in writing is filed by public servant concerned or his subordinate. As per Section 21 I.P.C., "public servant" includes every judge, including any person empowered by law to discharge any adjudicatory function. Therefore, the Magistrate who issues proceedings u/s 82 Cr. P.C. will be deemed to be public servant within the meaning of Section 195 Cr. P.C. The word "complaint" referred in Section 195 Cr. P.C. is defined u/s 2(d) Cr. P.C. which is being quoted below: "2(d). " complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation .- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deeme....
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....ished with imprisonment for a term which may extend to seven years and shall also be liable to fine." 13. After insertion of Section 174-A in I.P.C. as well as in First Schedule of Cr. P.C., further amendment was also made in the year 2006 in Section 195(1)(b) Cr. P.C., but no amendment was made in Section 195(1)(a)(i) Cr. P.C. Therefore, at the time of inserting Section 174-A in I.P.C. as well as in First Schedule of Cr. P.C. after Section 174, legislature was well aware about the category of offences u/s 195(1)(a)(i) Cr. P.C. and for this reason, while making amendment in Section 195(1)(b) Cr. P.C. in 2006, Section 195(1)(a)(i) Cr. P.C. was kept untouched knowingly by the legislature. The above position clearly reveals that while inserting Section 174-A I.P.C., legislature was well aware that in Section 195(1)(a)(i) Cr. P.C., apart from Section 188 I.P.C., one more cognizable offence i.e. 174-A I.P.C. is being inserted for providing the bar of cognizance on the part of court for offences mentioned in Section 195(1)(a)(i) Cr. P.C., except on the complaint. 14. In the judgement of Punjab and Haryana High Court delivered in Pradeep Kumar vs. State of Punjab and another (supra)....
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....ed. Justice has to be administered even to a suspect/under trial without any ambiguity or drawing inferences against him from legislative ambiguities. Thus the incongruity ought not to result in an asymmetry of rights and due process. Such an inconsistency underscores the critical need for clarity in legislation and ascertaining its intent through judicial interpretation in matters affecting personal liberty and justice. 12.15. Nevertheless, even if we were to entertain the notion that non-exclusion of Section 174-A of IPC from the purview of Section 195 Cr. P.C. was by an inadvertent oversight/omission in the legislation, it is crucial to recognize that any benefit arising from such an inadvertence or oversight would accrue to the advantage of the accused, rather than the prosecution. In the realm of criminal jurisprudence, matters pertaining to personal liberty hold a paramount position. Such matters pertaining to personal liberty should never be predicated upon inferences drawn against the accused from presumed intentions and/or inadvertent omissions on the part of the legislature. The sanctity of personal liberty demands nothing less than clear and categorical legislat....
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....ble under Section 172 to 188 (both inclusive) of the IPC or of the abatement, or attempt to commit the said offences, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Section 195 Cr. P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought into the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are non- cognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner." 18. Similarly, paragraph 21.1 of the judgement passed by Allahabad High Court in Moti Singh Sikarwar (supra) is being quoted as under :- " 21.1. It is to be noted that all the offences under Section 172 to 188 I.P.C. (both inclusive) are non-cognizable....
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....-a-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under: i) that the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In-charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted; ii) the bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder; iii) for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; ....
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....ioned in Section 195(1)(a)(i) Cr. P.C. for which court is barred from taking cognizance except upon a complaint by the court. 23. It is also relevant to mention here that cognizable offence itself permits the police to arrest a person without warrant, therefore, registration of F.I.R. of cognizable offence itself will affect the personal liberty of a person protected by Article 21 of the Constitution of India. Therefore, if legislature had intended to invoke the provision of cognizable offence only on the basis of filing written complaint then permitting to register F.I.R. for direct offence will definitely amount to interfere/deprive the personal liberty of a person. Therefore, once Section 195(1)(a)(i) Cr. P.C prohibits the taking cognizance of the offence u/s 174-A I.P.C., except on the basis of written complaint, then permitting lodging of an F.I.R. u/s 174-A I.P.C. will amount to travesty of justice to the person concerned as the personal liberty under Article 21 of the Constitution cannot be deprived, except in accordance with law. Conclusion 24. Therefore, if the court itself cannot take cognizance of the offence u/s 174-A I.P.C. on the basis of police report, then ....