Syed Nazir Haider vs Gajraj Singh and Others

Mahavir Singh, J.—This is a revision by a complainant against the order of the learned Judicial Magistrate, Rae Bareli, dismissing his complaint on the ground that the same was barred by Section 195 Code of Criminal Procedure.

The relevant facts are that the applicant had filed a complaint in the Court of Judicial Magistrate, Rae Bareli against the Respondent. The Respondent No. 1 was the Station Officer of Police Station Nasirabad at that time. Respondents 2 and 3 were the Second Officers while the others were constables. It was alleged that one Siptey Mohammed was murdered and his property looted on the night between 9th and 10th of August, 1972 by some culprits and thieves. A report was made by his sister in which no one was named. On the night between 1st and 2nd of September, 1972, these Respondents came to his house in the town of Jais and arrested him and brought him to out post Jais and then to Police Station Nasirabad. The Respondents 1 to 3 asked him to confess and also to point out the looted property and on his refusal, the Respondents 4 to 7 on the order of Respondents 1 to 3 beat him and tortured him in different ways and sent him to jail later. He was released on bail on 9th September, 1972. One of the bones of the palm of his foot was found fractured. It was also alleged that some of these Respondents might have prepared false diary for making a false case against him and for that also they be punished. The complaint was filed for offences Under Sections 147 and u/s 218, 325, 329, 330, 331, 342 read with Section 149 IPC. On being summoned the Respondents faild an application that the offences which are said to have been committed by them were in the course of the discharge of the duty of investigating a murder case against the applicant and so without proper sanction of the authority concerned, the cognizance could not be taken.

The learned Magistrate held that Section 197 Code of Criminal Procedure was not applicable because the Respondents were such public servants who were not removable by the State but were removable by the other authorities. However he held that the complaint disclosed offence of forgery about forging the police diary and other papers and this if at all was committed by them in the course of proceedings in the Court granting the remand and so the complaint was barred by Section 195(1)(c) Code of Criminal Procedure even though it had not been specifically pleaded.

The applicant has now come up in revision before this Court and contends that the view taken by the Judicial Magistrate is legally wrong. There was no complaint for the offence u/s 463 IPC at all and so bar of Section 195(1)(c) was not attracted. It was further alleged that even otherwise so far as the other offences were concerned, the complaint for the same could not be dismissed as they were not covered by Section 195 Code of Criminal Procedure.

This is true that the complainant had not filed a complaint against Respondents for the offence u/s 463 or 471 which are covered by Section 195(1)(c) Code of Criminal Procedure. He had filed the complaint in connection with preparing false papers only for the offence u/s 218 IPC. The learned lower Court had, however, observed that a party could not be allowed to evade a law by merely giving out a different label to the offence alleged. He had relied for this upon Durgacharan Naik and Others Vs. State of Orissa, . The learned lower Court, however, does not appear to have gone through the case properly. It was held therein that where the offence alleged were under two Sections, which were distinct, and even though the offence for one Section may be covered by Section 195 Code of Criminal Procedure, the complaint about the other Section, which is not so covered, is not barred. The observation, which was referred to by the learned Magistrate was only confined to cases where the offence alleged was actually under a Section which was not covered by this bar but the complainant had given it a new label to evade this bar of Section 195. This was not the case here. The offences Under Sections 218 and 463 IPC are distinct and the allegations do not take the offence only u/s 463 IPC. They are covered by Section 218 IPC.

Further it may be pointed out that even if the view taken by the learned Court is correct that the offence in truth and substance was u/s 463, the bar of Section 195(1)(c) Code of Criminal Procedure was not attracted. These offences were not committed by the Respondents at a time when they were parties to any proceeding. The offences were committed before the proceedings were initiated for remand or otherwise. The learned lower Court had, however, referred to Har Prasad v. Hansh Ram 1965 AWR 82, according to which this bar would operate even if the offence covered by it were committed at a time when the applicants were not parties to any proceeding in Court but this was not held to be a good law in Shanti Devi v. State 1970 AWR 61 in view of it being against the earlier Full Bench ruling of this Court in Emperor v. Raja Kushal Pal Singh MR 1931 All 443 according to which before a bar of Section 195 could be attracted, the offence u/s 463 should have been committed during the proceeding in which they were parties. Further the Supreme Court in Patel Laljibhai Somabhai Vs. The State of Gujarat, has approved Emperor v. Kushal Pal Singh, (supra) case and so in that view of the matter the bar of Section 195(1)(c) was not attracted to this case.

The learned Counsel for the Respondents, however, contended that in any case the bar of Section 197 Code of Criminal Procedure was applicable and the view taken by the learned Court below to the contrary was wrong. It is pointed that though the Respondents were such public servants who were not removable by the State but were removable by the other authorities. Section 197 Code of Criminal Procedure had been made applicable to all members of police force whatever their rank was. But the notification applying Section 197(2) to members of police force was issued in 1975 whereas this complaint was filed in 1972 so Section 197 Code of Criminal Procedure was also not attracted. Thus the order passed by the learned Magistrate was wrong.

Accordingly, the revision is allowed. The order passed by the learned Magistrate is set aside. He shall proceed with the complaint according to law.