Rajesh Achaliya vs The State Of Madhya Pradesh

"215. Prosecution for contempt of lawful authority of 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 206 to 223 (both inclusive but excluding section 209) of the Bharatiya Nyaya Sanhita, 2023; 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 or of some other public servant who is authorised by the concerned public servant so to do;(b) (i) of any offence punishable under any of the following sections of the Bharatiya Nyaya Sanhita, 2023, namely, sections 229 to 233 (both inclusive), 236, 237, 242 to 248 (both inclusive) and 267, 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 sub-section (1) of section 336, or punishable under sub-section (2) of section 340 or section 342 of the said Sanhita, 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 conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

(2)

Where a complaint has been made by a public servant or by some other public servant who has been authorised to do so by him under clause (a) of sub-section (1), any authority to which he is administratively subordinate or who has authorised such public servant, may, order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3)

In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central or State Act if declared by that Act to be a Court for the purposes of this section.

(4)

For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situated :Provided that-(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

35.

As a general rule, any person, having knowledge of commission of an offence may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. There are exceptions to this general rule, as evident from Sections 195 and 196 respectively of the Cr.P.C. Section 195 is one of those sections, which prohibits a court from taking cognizance of certain offences unless and until a complaint has been made by some particular authority or person. The other sections, with similar prescriptions, are sections 196 to 199 of the Cr.P.C. respectively. Section 195 of the Cr.P.C. has been enacted as a safeguard against the irresponsible and reckless prosecutions by the private individuals in respect of the offences, which relate to the administration of justice and contempt of lawful authority.

36.

It is true that Section 195 of the Cr.P.C. does not bar the trial of an accused for a distinct offence disclosed by the same set of facts and is not so stated therein. Section 195 also does not provide further that if in the course of the commission of that offence, other distinct offences are committed, the court concerned is debarred from taking cognizance in respect of those offences as well. However, having said so, if the perusal of the first information report makes it clear that the offence under Section 186 of the I.P.C. is closely interconnected with another distinct offence(s), which in this case is Section 341 of the I.P.C. and it cannot be split up, then in such circumstances, the bar of Section 195 of the Cr.P.C. will apply to such other distinct offence also.

37.

In the aforesaid context, we may refer to the following decisions of this Court;

(i)

In the case of State of U.P. v. Suresh Chandra Srivastava & Ors., reported in AIR 1984 SC 1108 a three-judge bench very succinctly explained the provisions of Section 195 of the Cr.P.C. and stated that if the other distinct offences form an integral part of the offences as enumerated under Section 195 Cr.P.C so as to fall under the same transaction, then those distinct offences would also be covered under the ambit of Section 195 Cr.P.C. The relevant observations are as under: -

“6.

In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471 and 120-B IPC are committed, the complaint could proceed or not. The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in section 195, section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of sec. 195 of the Code.”

(Emphasis supplied)

(ii)

In the case of State of Karnataka vs. Hemareddy & Anr. reported in AIR 1981 SC 1417, this Court held that in the cases where in the course of the same transaction, an offence, for which, no complaint by a court is necessary under Section 195(1)(b) of the Cr.P.C., and an offence, for which, a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b), Cr.P.C. should be upheld. We may quote the observation as contained in para 8. The same reads as under: -

“8.

We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under s. 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in s. 195(1)(b) of the Code of Criminal Procedure should be upheld.”

(Emphasis supplied)

(iii)

In the case of Saloni Arora vs. State of NCT of Delhi, [Criminal Appeal No.64 of 2017], decided on 10.01.2017, this Court explained the object of Section 195 of the Cr.P.C., observing as under:

“10.

As rightly pointed out by the learned counsel for the parties on the strength of law laid down by this Court in the case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio.

11.

It is apposite to reproduce the law laid down by this Court in the case of Daulat Ram (supra) which reads as under:

There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Cr.P.C. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned.

The trial under S.182 without the Tehsildars complaint in writing is, therefore, without jurisdiction ab initio.

12.

It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above.” (Emphasis supplied)

38.

Thus, what is discernible from the decisions referred to above is that if in truth and substance, an offence falls in the category of Section 195, it is not open to the court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences. This would depend on the facts of each case. However it cannot be laid as a straitjacket formula that the Court cannot undertake the exercise of splitting up. It would depend upon the nature of the allegations and the materials on record.

41.

While deciding whether the distinct offences can be split up, courts must remain circumspect. It is agreed that, the law is not that once the facts of a given case disclose an offence falling within the scope of Section 195 Cr.P.C. and also other offences, prosecution can be launched regarding the latter only upon the complaint of the court or the lawfully authority concerned. To hold otherwise would be to extend the scope of Section 195 Cr.P.C. to regions and horizons not contemplated by the legislature. The facts in a case may give rise to distinct offences including offences against the authority of public servants or against public justice, as also offences against private individuals; the bar under Section 195 of the Cr.P.C. cannot, in such circumstances, affect the offences other than those against public authority or public justice. Prosecution for such other offences does not require the instrumentality of the public authority or court. However, the position may be different when during the course of the same transaction offences falling within the two categories are committed. In such cases, it may not be possible to split up the transaction, and to hold that there can be valid prosecution for offences not mentioned in Section 195 of the Cr.P.C., without the written complaint of the public authority or the court, as the case may be. Courts must be able to see through any attempt to render Section 195 of the Cr.P.C. nugatory by hiding the real nature of the transaction by verbal jugglery. If in principle and substance the offence alleged falls within the categories mentioned in Section 195, the operation of the bar cannot be avoided; if in essence the alleged offence falls outside the categories, the bar would not operate. At the same time, if the facts give rise to distinct offences, some attracting the operation of Section 195 and others not so, the bar can operate only regarding the former and not regarding the latter.

42.

Therefore, the courts must ascertain whether during the course of a single transaction, the offences falling within both the categories are committed, in which case it would be difficult to split up the offences or, whether there are two different transactions which occur successively, nevertheless separately and distinctively, in which case the offences may be split up. One another aspect that may be looked into is whether, apart from the offences committed in contempt of lawful authority of public servants, or against public justice or, relating to documents given in evidence which fall under the scope of Section 195 Cr.P.C., the other distinct offences are of such a nature that private individuals are aggrieved. In such a scenario, it would not be reasonable to bar a private prosecution by the aggrieved individual for the reason that the public official or the court concerned has also not instituted a complaint.

48.

Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the public servant who was voluntarily obstructed in the discharge of his public functions. The complaint must be in writing. The provisions of Section 195 Cr.P.C. are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.

51.

A plain reading of Section 195 of the Cr.P.C. would indicate that no Court can take cognizance of an offence punishable under Section 186 of the I.P.C., except upon a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. The opening words of the Section are “No Court shall take cognizance”, and consequently, the bar created by the provisions is against taking of cognizance by the Court. There is no bar against the registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of the investigation, as contemplated by Section 173 of the Cr.P.C.

52.

This Court in Iqbal Singh Marwah v. Meenakshi Marwah reported in AIR 2005 SC 2119, while interpreting Section 195 Cr.P.C. has held as follows: -

“9.

[...] This being the scheme of two provisions or clauses of Section 195, viz., that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a court of justice, the expression "when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a Court" occurring in clause (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the Court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 Cr.P.C. This indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court.”

59.

We may summarize our final conclusion as under:

(i)

Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking cognizance of any offence punishable under Sections 172 to 188 respectively of the I.P.C., unless there is a written complaint by the public servant concerned or his administrative superior, for voluntarily obstructing the public servant from discharge of his public functions. Without a complaint from the said persons, the court would lack competence to take cognizance in certain types of offences enumerated therein.

(ii)

If in truth and substance, an offence falls in the category of Section 195(1)(a)(i), it is not open to the court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences disclosed in the same set of facts. However, it also cannot be laid down as a straitjacket formula that the Court, under all circumstances, cannot undertake the exercise of splitting up. It would depend upon the facts of each case, the nature of allegations and the materials on record.

(iii)

Severance of distinct offences is not permissible when it would effectively circumvent the protection afforded by Section 195(1)(a)(i) of the Cr.P.C., which requires a complaint by a public servant for certain offences against public justice. This means that if the core of the offence falls under the purview of Section 195(1)(a)(i), it cannot be prosecuted by simply filing a general complaint for a different, but related, offence. The focus should be on whether the facts, in substance, constitute an offence requiring a public servant’s complaint.

(iv)

In the aforesaid context, the courts must apply twin tests. First, the courts must ascertain having regard to the nature of the allegations made in the complaint/FIR and other materials on record whether the other distinct offences not covered by Section 195(1)(a)(i) have been invoked only with a view to evade the mandatory bar of Section 195 of the I.P.C. and secondly, whether the facts primarily and essentially disclose an offence for which a complaint of the court or a public servant is required.

(v)

Where an accused is alleged to have committed some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein. However, the courts should ascertain whether such offences form an integral part and are so intrinsically connected so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Cr.P.C. This would all depend on the facts of each case.

(vi)

Sections 195(1)(b)(i)(ii) & (iii) and 340 of the Cr.P.C. respectively do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation, provided the procedure laid down in Section 340 of the Cr.P.C. is followed.