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Judgment
Sandeep Sharma, Judge(oral): By way of instant petition filed under Section 528 of Bharatiya Nagrik Suraksha Sanhita, prayer has been made on behalf of the petitioner for quashing of FIR No.97 of 2022, dated 22.04.2022, under Section 174-A of IPC, registered at Police Station Sadar, District Hamirpur, Himachal Pradesh, as well as consequent proceedings pending adjudication before competent Court of law.
Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that marriage inter se petitioner and one Smt. Sushma was solemnized in the year 2006. However, on account of matrimonial discord, they started living separately w.e.f year 2009. Subsequently, the above named Smt. Sushma filed petition for maintenance under Section 125 Cr.P.C, which was registered as Petition No.19 of 2013. In afore proceedings, Court below granted monthly maintenance of Rs.2,000/- to the wife and Rs.1,000/- to the child, payable by the petitioner. Since petitioner herein failed to pay monthly maintenance, above named lady initiated execution proceedings under Section 125(3) Cr.P.C., registered as Cr.M.A. No.624 of 2015, titled as Sushma Devi Vs. Suresh Kumar, which are pending adjudication before the learned Additional Chief Judicial Magistrate Court No.1, Hamirpur, Himachal Pradesh. In the afore proceedings, petitioner was proceeded against ex parte on 26.07.2016 and ultimately, vide order dated 19.04.2021, letter was issued to the collector with request to give the details about the immovable property in the name of the petitioner. At the time of passing of order dated 31.08.2021, wife of the petitioner stated on oath that petitioner has no movable or immovable property in his name. She also stated that the land and house which were earlier in her name, had already been sold out by the petitioner. Vide order dated 31.08.2021, petitioner was served with a conditional warrant of arrest and in case of failure to do so, it was directed that petitioner be arrested and produced in the Court on 27.10.2021 (Annexure P-1). However, afore warrant of arrest was returned unexecuted with a report from the mother of the petitioner that petitioner was not residing at the given address for a long time and his present whereabouts were unknown. Subsequently, vide same order, Court below directed that petitioner be served through proclamation under Section 82 Cr.P.C for appearance on 17.01.2022 (Annexure P-2). As per report dated 08.04.2022, the serving officer apprised court below that one copy of proclamation was affixed at the house of the petitioner on 13.12.2021, the second copy was affixed on the notice board of Gram Panchayat Malag in the presence of one Bimla Devi and third copy was affixed on the notice board of the Court complex on 14.12.2021. Since despite such service by way of proclamation, the petitioner failed to appear before the Court below, learned Court below directed the concerned SHO to register an FIR under Section 174-A of Indian Penal Code against the petitioner (Annexure P-3).
Pursuant to afore order dated 08.04.2022 passed by the Court below, SHO of Police Station Sadar, Hamirpur, registered impugned FIR No.97 dated 22.04.2022 under Section 174-A of Indian Penal Code.
After completion of investigation, Police has already presented challan in the Court of learned ACJM, Court No.1, Hamirpur, Himachal Pradesh, against the accused, but before the same could be taken to its logical end, petitioner has approached this Court in the instant proceedings, for quashing of FIR as well as consequent proceedings, if any, pending adjudication in the competent court of law.
Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Varun Thakur, learned Legal Aid Counsel representing the petitioner, is that impugned action of lodging an FIR against the petitioner under Section 174-A of Indian Penal Code is wholly unjustifiable because at no point of time, petitioner herein was served in the execution petition filed at the behest of his wife Smt. Sushma. Mr. Thakur, submitted that there is no material available on record suggestive of the fact that the petitioner herein ever attempted to evade service. He further submitted that otherwise also, no FIR could have been registered under Section 174-A of Indian Penal Code without there being written complaint by the public servant, which includes the judge. However, in the instant case, learned Judicial Magistrate issued direction to SHO of the Police Station concerned to lodge FIR.
To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while supporting the impugned action of lodging of FIR against the petitioner under Section 174-A of Indian Penal Code, vehemently argued that bare perusal of FIR itself suggests that Presiding Officer of the competent Court had submitted a written complaint to the SHO of the Police Station concerned for lodging of FIR under Section 174-A of Indian Penal Code on account of the petitioner’s having failed to appear in the Court despite his having been declared proclaimed offender. He submitted that there is no merit in the contention of learned Legal Aid Counsel for the petitioner that FIR was lodged on the direction of the Court, rather FIR came to be registered on the request of Court, which had actually issued proclamation against the petitioner for his having failed to put in appearance despite notice. Lastly, Mr. Kahol submitted that whether proclamation was rightly issued or not is a question, which cannot be decided in the instant proceedings, rather appropriate forum to examine the same would be the Court which had issued proclamation.
Having heard learned counsel for the parties and perused material available on record, this Court finds that there is no dispute qua the fact that on account of continuous default in putting in appearance by the petitioner, learned Court of ACJM Court No.1, Hamirpur, Himachal Pradesh, issued proclamation under Section 82 Cr.P.C for the appearance of the petitioner on 17.01.2022 (Annexures P-2 & P-3). Since despite there being proclamation, accused failed to put in appearance, learned ACJM, Court No.1, Hamirpur, HP, vide order dated 08.04.2022, directed SHO of the Police Station concerned to lodge FIR.
Though having carefully perused aforesaid order, this Court is persuaded to agree with Mr. Varun Thakur, learned Legal Aid Counsel for the petitioner, that no FIR otherwise could have been lodged against the petitioner on the basis of direction issued by the Court, rather in that regard, afore authority ought to have filed written complaint to the Police Station concerned for lodging of FIR. However, careful perusal of FIR (Annexure P-4) clearly reveals that same came to be lodged on the basis of written complaint made by the Presiding Officer of the concerned Court. It would be apt to reproduced the contents of FIR:-
“इस समय दर्ज है कि व अदालत जनाब ACJM Court No. 1 हमीरपुर के कार्यालय से एक आदेश नम्बर 851 दिनांक 20.04.2022 बजरिया डाक बराये करने दर्ज मुकदमा बेर खिलाफ आरोपी सुरेश कुमार पुत्र स्व० श्री काशी राम R/O टीका बुजाणा डा कांगू तह नादीन जिला हमीरपुर हि प्र० मौसुल थाना हुआ है जिसका विवरण इस प्रकार है:- To The Station House Officer, Police Station Hamirpur, District Hamirpur, H.P. Whereas in the above noted case respondent Suresh Kumar S/O Late Sh. Kanshi Ram R/O Tika Budhana, PO Kangoo, Tehsil Nadaun, Distt. Hamirpur, HP was served through Proclamation u/s 82 of Cr.P.C, but he has not appeared before this Court, hence declared an 'Absconder by this court vide order dated 08.04.2022 passed in the aforesaid case. You are hereby directed to register an FIR under section 174-A of IPC against the respondent and to make entry in the concerned register against the respondent. Your report should reach in this Court on or before 20.05.2022. Given under my hand and seal of the Court today the 8th day of April, 2022. “अजथाना:- हसब आमदा आदेश को शब्द व शब्द लिखा गया। मजबूत आदेश से मामला जुर्म जेर धारा 174-A IPC का बकुह में आना पाया जाकर मुकदमा व जुर्म दर्ज थाना किया गया। FIR हजा की जरूरी प्रतियां बजरिया कम्प्यूटर व प्रिंटर एक समय में निकाली जा रही है। जो मुतलका अदालत व अफसरान बाला की सेवा में डाक व ई० मेल दवारा भेजी जा रही है। बकुह का इन्द्राज थाना के सम्बन्धित रजिस्टरों में करवाया गया। मिसल मुकदमा तैयार करवाकर बगर्ज तफतीश मु०आ० नरेश कुमार न० 29 1/0 थाना सदर हमीरपुर को दी जा रही है।”
Careful perusal of FIR clearly reveals that learned Presiding Officer concerned had sent a written communication to the SHO Police Station Hamirpur, stating therein that Suresh Kumar was served through proclamation issued under Section 82 Cr.P.C, but despite such service, he failed to appear before the Court, as such, he was declared as Proclaimed offender by the Court vide order dated 08.04.2022 passed in aforesaid case. Though very tone and tenor of the complaint, as reproduced in FIR, suggests that learned ACJM, Court No.1, Hamirpur, Himachal Pradesh, directed SHO to lodge FIR, but this Court is persuaded to agree with Mr. Rajan Kahol, learned Additional Advocate General, that very factum of filing complaint to SHO is sufficient to conclude compliance of Section 195 Cr.P.C. Admittedly, as has been observed hereinabove, there was no occasion, if any, for the learned ACJM, Court No.1, Hamirpur, Himachal Pradesh, to pass order dated 08.04.2022, thereby directing SHO to lodge FIR under Section 174-A of Indian Penal Code against the petitioner, but it is also not in dispute that after passing of afore order, one written complaint came to be made by the Judge of the concerned court to the SHO apprising him with regard to proclamation proceedings initiated against the petitioner and his having been declared proclaimed offender, but while doing so, afore Judge, instead of making request to SHO for making complaint, directed him to lodge FIR, which fact may not be sufficient to agree with learned Legal Aid Counsel for the petitioner that no written complaint as was required under Section 195 Cr.P.C ever came to be filed. Section 195(1)(a)(i) of Cr.P.C. provides that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of IPC, both inclusive except on the complaint in writing of the public servant concerned or some other person to whom he is administratively subordinate. Section 21 of the Indian Penal Code states that term “public servant” includes every Judge and every person empowered by law to discharge any adjudicatory function. Therefore, it is apparent from the combined reading of these provisions that cognizance of the commission of an offence punishable under Sections 172 to 188 cannot be taken except on the complaint in writing by the Court.
Though while referring to judgment passed by Delhi High Court in Maneesh Goomer v. State, 2012 SCC OnLine Del 66, Mr. Rajan Kahol, learned Additional Advocate General, attempted to argue that the provisions of Section 195 Cr.P.C will not apply to Section 174-A of Indian Penal Code because the legislature did not amend Section 195 Cr.P.C to include Section 174-A of Indian Penal Code after inserting Section 174-A of Indian Penal Code w.e.f. 23.6.2006, but this Court is not persuaded to agree with aforesaid submission of learned Additional Advocate General. The legislature had specifically stated that no Court shall take cognizance of the commission of an offence punishable under Sections 172 to 188 both inclusive and when Section 174-A of Indian Penal Code was being added after Section 174 of Indian Penal Code, it was clear that the same would fall within Sections 172 to 188 both inclusive. The amendment was required if the legislature had intended to take the offence out of the purview of Section 195(1)(a) Cr.P.C because by putting Section 174-A of Indian Penal Code between Sections 172 to 188, it was automatically included within these Sections. Reliance in this regard is placed upon judgment passed by Hon’ble Punjab and Haryana High Court in case titled Pradeep Kumar vs. State of Punjab, 2023 PHHC 110479, wherein it came to be ruled that the police has no jurisdiction to register an FIR under Section 174-A of Indian Penal Code, rather same can only be filed on the basis of complaint to be filed by the Court that had declared the person as a proclaimed offender. Relevant paras of the afore judgment are extracted hereinbelow:-
12.5.From the plain language of Section 195 of the Code of Criminal Procedure, it is obvious that the offence under Section 174-A of IPC falls within its scope. Its cognizance cannot be taken by any Court except on the complaint in writing of the public servant/Judge concerned or of some other public servant/Judge to whom he is administratively subordinate. This being the position, after declaring the petitioner a proclaimed person, if at all the learned Magistrate had desired and decided to proceed against the petitioner for an offence under Section 174-A of IPC, the prescribed course for him was to institute a complaint in writing in the competent jurisdictional Court. Instead, the learned trial Court adopted a short but wrong cut and just sent a copy of his orders to the local police for initiation of proceedings under Section 174-A against the petitioner (obviously by registration of an FIR).
12.6.In my opinion, the orders passed and sent to the local police by the learned Magistrate directing for initiation of proceedings under Section 174-A against the petitioner and the impugned FIR, Annexure P-1, registered thereupon at Police Station, City, Rajpura are in violation of the relevant provisions of Section 195 of the Code, under which a criminal complainant had to be filed by the learned Magistrate in the jurisdictional Court. Orders dated 31.08.2019 and 13.09.2019 reproduced above directing initiation of proceedings under Section 174-A against the petitioner (obviously by registration of an FIR) are not legally sustainable. The impugned FIR, therefore, is liable to be quashed on that short ground alone.
The Punjab & Haryana High Court also differed from the reasoning of the Delhi High Court in Maneesh Goomer (supra) as under:-
12.8The reasoning given in Maneesh Goomer’s case(supra)is that Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC, as the Legislature was conscious of the fact that the offence (under Section 174-A IPC) is cognizable. It may be noted here that Section 188 of IPC is also in Chapter X of IPC and is a cognizable offence. And yet, it was and is still specifically covered by the provisions of Section 195 of the Code of Criminal Procedure. On the logic of Maneesh Goomer’s case (supra), in my opinion, Section 174-A IPC cannot be held excluded from the purview of Section 195 Cr.P.C. merely because it is cognizable. 12.9 Having given my thought further on the reasoning given in Maneesh Goomer’s case (supra), with the utmost respect, I have a different take on the same. Notably, the introduction of Section 174-A into the IPC was accompanied by a corresponding amendment in Schedule 1 of the Cr.P.C. This amendment classified the aforementioned offence as cognizable. However, Section 195 of the Cr.P.C. was consciously not amended correspondingly to exclude Section 174-A from its ambit, as is now being proposed through Section 215 of ‘The Bhartiya Nagrik Suraksha Sanhita 2023 Bill’. Said Bill currently under consideration of the legislature. The omission of Section 174-A from the scope of Section 195 of the Cr. P.C. cannot, therefore, be also characterized as a mere oversight, especially in light of the deliberate amendment in Schedule-1, while Section 195 ibid was conspicuously left untouched.
12.13.Having opined as above, I may also hasten to add here that the non-inclusion of Section 174-A of IPC into the ambit of Section 195 of Cr. P.C. in its current form, does though create some incongruity/legal inconsistency. To elucidate, let us consider an illustrative scenario: Imagine an individual accused of an offence falling under Section 174-A of the IPC. Being an offence classified as cognizable, the police have the authority to arrest the accused without a warrant. However, Section 195 of the Cr.P.C. bars any Court from taking its cognizance except on the complaint in writing made by the Court/Public servant concerned. This creates an anomalous situation where an individual who is accused under Section 174-A IPC could potentially be arrested without a warrant, yet the legal requirement for his prosecution for such an offence is by way of filing a complaint under Section 195 of the Cr.P.C.
12.14.The incongruity, if any, in the legal framework rather warrants a closer examination of legislative intent. The statutory insistence ibid, of filing of a complaint by the public servant/court concerned, is in tune with a fundamental right to personal liberty as enshrined under Article 21 of the Constitution of India. The same underscores the importance of aligning legal provisions to ensure that the personal liberty of an individual is given paramount consideration, given that an individual who is declared as a proclaimed person or offender, as the case may be, is a mere suspect/under trial and not yet a declared culprit. He is also equally entitled to procedural protection in the exercise of his fundamental right under Article 21. The same has to be thus safeguarded. 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 the 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 legislative provisions ensuring that justice is not compromised by inferences drawn against the accused from legislative ambiguity or oversights.
12.16.In conclusion, it is held that Section 195 of the Code of Criminal Procedure (CrPC), in its present form, encompasses Section 174-A of the Indian Penal Code (IPC) within its purview.
It is apparent from the bare reading of FIR that though Court, which had issued proclamation, sent a written complaint to the SHO of the concerned Police Station, thereby intimating that person, against whom proceedings under Section 174-A of Indian Penal Code were to be initiated, had been declared proclaimed offender, but while doing so, instead of making request to Police Officer concerned to lodge FIR in a routine manner, directed Police Officer to lodge FIR, which though may not be a correct approach, but cannot be construed to be non-compliance of the Section 195 Cr.P.C.
In view of the above, this Court is not persuaded to agree with learned Legal Aid Counsel for the petitioner that on account of aforesaid non-compliance of Section 195 Cr.P.C by the Court, which had issued proclamation, case of the prosecution is bound to fail, rather this Court is convinced that there is proper compliance of Section 195 Cr.P.C. Another submission raised at the behest of the petitioner that learned Court below wrongly issued proclamation and at no point of time, petitioner was served with the notice are the questions to be determined by the Court below in proceedings initiated under Section 174-A Cr.P.C and same cannot be looked into in the instant proceedings on account of there being involvement of disputed question of facts and law. Hence, for detailed discussion made hereinabove, this Court does not find case at hand to be a fit case, whereby power under Section 482 Cr.P.C can be exercised to quash the FIR.
Consequently, in view of the above, present petition fails and is dismissed accordingly. Pending applications, if any, also stand disposed of.
Footnotes
- 1.Whether the reporters of the local papers may be allowed to see the judgment?