Bar U/S. 195 CrPC For Taking Cognizance Applies To Offence U/S. 174A IPC Also: Delhi HC
|The Delhi High Court has observed that the bar under Section 195 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') for taking cognizance applies to offence under 174-A Indian Penal Code, 1860 ('IPC').
It also said that on the date when section 174-A of the IPC was inserted, if the legislature had to exclude it from the purview of Section 195 of the Cr. P.C, it would have included that provision.
The Bench of Justice Anish Dayal held, “To clarify the sequence of legislative activity in regard to Section 195 Cr.P.C. and Section 174-A of IPC it is to be noted that Section 195 & 195(1)(a)(i) Cr.P.C. has been on the statute book since 1973 and includes Section 172-188 IPC. By an amendment by ‘Act 25 of 2005’, Section 174-A was inserted w.e.f 23rd June, 2006. Therefore, on the date when section 174-A of IPC was inserted, if the legislature had to exclude it out of purview of Section 195 Cr.P.C, it would have included that provision...It is settled law that one cannot assume a careless omission by the legislature and proceed to fill in by judicial interpretation, a casus omissus."
Advocate Harshvardhan Pandey appeared for the Petitioners, whereas APP Pradeep Gahalot appeared for the Respondent.
A petition was filed under Section 482 of the Cr.P.C., seeking to set aside an order passed by the Sessions Court whereby the Sessions Court had dismissed the revision petition filed by the Petitioners challenging the charge framing orders passed by the Magistrate against the Petitioners Section 174-A of the IPC.
The gravamen of the Petitioners’ challenge to the charges framed under Section 174-A IPC was that cognizance of the offence under the same could only be taken on a complaint in writing by the public servant concerned and the bar under Section 195(1)(a)(i) Cr.P.C. would apply. It was submitted that the Sessions Court, in the impugned order, relied on the judgment of the High Court in Maneesh Goomer v State (2012), which held that Section 174-A IPC was not covered by the bar of Section 195 Cr. P.C..
The brief facts of the case were that a complaint case was filed under section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’). Process under Section 82-83 Cr. P.C was issued against the petitioners; subsequently, registration of an FIR was directed by the Trial Court by order for the offence under Section 174-A IPC against the petitioners.
The Court relied on the judgment of the Apex Court in Muniappan & Ors v State of Tamil Nadu (2010). It said that for the offences under Section 188 IPC, the Supreme Court reiterated that there must be a complaint by a public servant whose lawful order has not been complied with, which must be in writing since the provisions of Section 195 C.r.P.C were mandatory. It was stated that the Court could not assume cognizance of the case without such a complaint, and the trial/conviction was, therefore, void ab initio. Accordingly, it underscored that the law does not permit taking cognizance of an offence under Section 188 IPC, in view of the bar under Section 195 C.r.P.C, in the absence of a complaint, as prescribed under the provision. Therefore, Section 188 IPC being cognizable, the same reasoning would also apply to an offence under Section 174-A IPC, which is also cognizable.
The Court observed, “Even though the Supreme Court in C. Muniappan (supra) does not deal with Section 174-A directly, it would be difficult to draw an artificial distinction between Section 174-A IPC and Section 188 IPC, despite both being covered in the category of Sections 172-188, in Section 195(1)(a)(i) Cr.P.C. Maneesh Goomer (supra) does not take into account the decision in C. Muniappan (supra), which was probably not brought to the attention of the Court and, therefore, in Maneesh Goomer (supra) an independent analysis and interpretation was done, reaching a conclusion that since Section 174-A IPC was the only cognizable offence in the category covered under Section 195 C.r.P.C., it was a conscious inclusion by the legislature and, therefore, would stand on its own footing. It would be difficult to support such an interpretation in view of C. Muniappan (supra).”
Accordingly, the Court allowed the petition and set aside the impugned order.
Cause Title: Amandeep Gill & Anr. v. State of Govt. of NCT of Delhi (Neutral Citation: 2024:DHC:7224)
Appearances:
Petitioners: Advocate Harshvardhan Pandey
Respondent: APP Pradeep Gahalot, Advocates Hanumanth Sakhuja, Sunny Sharma, Anubhav Jain, Nayan Saini, Shubham Kumar, Dhruv Goyal, Shristhi Setia, Savi Abbot and Deepankar Kataria