Archana Mishra vs State Of Jharkhand

Sanjay Kumar Dwivedi, J

Heard learned counsel appearing for the petitioner and learned counsel appearing for the State.

This petition has been filed for quashing of the order taking cognizance dated 08.09.2009 as well as the order dated 20.09.2013, whereby, the petitioner has been declared absconder arising out of Namkum P.S. Case No.79 of 2009, corresponding to G.R. Case No. 1901 of 2009.

Learned counsel appearing for the petitioner submits that the petitioner was the informant in Namkum P.S. Case No.79 of 2009, corresponding to G.R. Case No.1901 of 2009. He further submits that the I.O. has recommended to take action against the petitioner under Sections 182 and 211 of the Indian Penal Code and pursuant to that the learned Court has taken cognizance against the petitioner and subsequently the petitioner has been declared absconder. He further submits that the procedure are prescribed in Section 195 of Cr.P.C. for taking cognizance under Section 182 of the Indian Penal Code.

Learned counsel appearing for the State accepts the said submission and submits that the learned Court has taken cognizance pursuant to recommendation by the police.

It is admitted position that the petitioner was the informant and she has lodged the said case against the accused person. The police has investigated the matter and submitted final form and further recommended to proceed against the petitioner and pursuant to that, the learned Court has taken cognizance against the petitioner under Section 182 and 211 of the Indian Penal Code.

There are procedure prescribed in Section 195 Cr.P.C. for proceeding under Section 182 and other sections of the Indian Penal Code, which are not followed by the learned Court.

Further, the order taking cognizance is not in accordance with law as the words 'accepted' and 'cognizance' have been filled up in blank space, which suggest that there is non-application of judicial mind.

It is true that the offence under Section 182 is distinct from the one under Section 211 though the latter is more serious and may include the offence under the former section. The Magistrate can take cognizance of an offence under Section 182 on complaint in writing of the police officer by virtue of the provisions contained in Section 195(1)(a) of the Cr.P.C. But it would virtually lead to the circumvention of the provisions of Section 195(1) (b) if the proceedings under Section 182 can continue where the offence disclosed is covered by Section 211 of the Indian Penal Code and a complaint is pending which has been filed by the informant on the same facts and allegations as were contained in the FIR. A reference may be made to the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab v. Brij Lal Palta, reported in AIR 1969 SC 355.

In view of the above facts, reasons and analysis, the order taking cognizance dated 08.09.2009 as well as the order dated 20.09.2013 declaring the petitioner as absconder arising out of Namkum P.S. Case No.79 of 2009, corresponding to G.R. Case No. 1901 of 2009 are quashed.

Accordingly, this petition is allowed and disposed of.