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Judgment
Hon’ble Siddhartha Sah, J. (Oral)
Since common order is being assailed in all these criminal Misc. Applications, filed under Section 482 of the Cr.P.C., therefore, they are being decided together by a common order.
Facts of Criminal Misc. Application No. 247 of 2015, Tilak Ram Joshi vs. State of Uttarakhand and another are being taken for consideration.
By means of all these present Criminal Misc. Applications, the applicants have sought quashing of the order dated 16.02.2015, passed by learned Additional Sessions Judge, Vikas Nagar, District Dehradun in Sessions Trial No.82 of 2014, State of Uttarakhand vs. Baru Singh to the extent of direction given by learned Additional Sessions Judge to his clerk in regard to making a written complaint against the applicant under Section 211 of IPC before the court concerned.
Facts giving rise to the present Criminal Misc. Application are that a complaint was made by victim against one Baru Singh on 25.04.2014, with the allegations that on 20.04.2014, victim went to her maternal house to attend her nephew's marriage. On 21.04.2014, at around 9:30 in the evening, when victim went to her brother's house, Baru Singh entered the room and attacked victim and committed rape upon her. Consequently, a complaint was made before the Sub-Divisional Magistrare, Chakrata, District Dehradun was filed to lodge a report against Baru and to take legal action against him.
Thereafter, Patwari (Applicant in C482 No. 247 of 2015) inquired into the matter and, after an inquiry, lodged the report on 25.04.2014, at 4:00 p.m. against the accused Baru Singh under Sections 376, 323, 504 and 506 of the IPC and the same was registered as Case Crime No. 01 of 2014 at Police Station, Revenue Sub-Inspector Area Jadi, Tehsil Chakrata, District Dehradun.
Thereafter, the applicant Tilak Ram Joshi (Applicant in C482 No. 247 of 2015), in the capacity of the Investigating Officer, recorded the statement of victim under Section 161 of the Cr.P.C. Statements of one Ms. Pooja were also recorded. Thereafter, the statement of Dharam Singh (Applicant in C482 No. 274 of 2015) was also recorded under Section 161 of the Cr.P.C.
Thereafter, the applicant Tilak Ram Joshi took the victim for her medical examination. In the course of the investigation, the applicant Tilak Ram Joshi also prepared the site plan. Thereafter, the applicant Tilak Ram Joshi also took the victim for getting her statements recorded under Section 164 of the Cr.P.C. After completing the entire investigation, applicant Tilak Ram Joshi submitted the charge-sheet against the accused persons.
Thereafter, the matter was committed to the Court of Additional Sessions Judge, Vikasnagar, Dehradun and was registered as Sessions Trial No. 82 of 2014, “State of Uttarakhand vs. Baru Singh”. During trial, the examination-in-chief of the victim (Applicant in C482 No. 311 of 2015) was also recorded, in which the victim stated that nothing wrong happened with her on the date of the incident. At that stage, she was declared hostile and was cross-examined, where she denied all the allegations made by her against the accused persons. She stated that the statements under Section 164 of the Cr.P.C. were made under the pressure of her husband and Patwari.
After examination of all the witnesses, vide judgment and order dated 16.02.2015, the learned Additional Sessions Judge, Vikasnagar, Dehradun, acquitted the accused Baru Singh under Sections 376, 504 and 506 of the IPC. However, the learned Additional Sessions Judge further directed his clerk to make a written complaint to the concerned Magistrate under Section 211 of the IPC.
The present bunch of Criminal Misc. Applications have impugned the said order dated 16.02.2015, to the extent of directing the making of a complaint against the applicants under Section 211 of the IPC.
The said portion of the impugned order dated 16.02.2015, passed by the Additional Sessions Judge, Vikasnagar, District Dehradun has been assailed on the limited ground that, while passing the impugned order for making written complaint under Section 211 of IPC, the learned trial court has failed to appreciate the fact that the applicants have not instituted or caused to be instituted any criminal proceeding against accused with the intent to cause harm to the accused, knowing that there is no just or lawful ground for such proceeding, therefore, the impugned order is liable to be set-aside to the extent of directions made against the applicants.
Per contra, learned State Counsel supported the order of the Addl. Sessions Judge and submitted that the offences are made out against the applicant under Section 211 IPC. Referring to the counter affidavit filed on behalf of the State, it is contended that the contentions made on behalf of the applicants have been made only for saving their skin from the clutches of law. The trial court passed the impugned order dated 16.02.2015, after considering each and every aspect of the case as per the provisions of law.
Before the Court proceeds to consider the rival submissions of learned counsel for the parties, it would be apt to refer to Section 211 of the IPC. Section 211 of the IPC is being extracted hereunder for ready reference:
“211. False charge of offence made with
intent to injure. - Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
A bare perusal of Section 211 of the IPC would reveal that the said section contemplates the offence where, with intent to cause injury to any person, criminal proceedings have been instituted against that person, or false charges are made, knowing that there is no just or lawful ground for such proceeding or charge against that person.
What falls for consideration in the present bunch of cases is whether the observation as contained in paragraph no. 49 of the impugned order dated 16.02.2015, satisfies the ingredients as contemplated under Section 211 of the IPC?
A perusal of paragraph 49 of the order dated 16.02.2015, would reveal that it states that from the file, it is clear that the complainant has instituted a false case against the accused Baru Singh, in which the role of the husband of the complainant and the Patwari is evident from the statement of the complainant given in Court. On the basis of the said statement, the learned Additional Sessions Judge has directed the Sessions Clerk to direct filing of a criminal case under Section 211 of the IPC before the competent court.
However, in paragraph 49 of the impugned order dated 16.02.2015, there is no whisper at all whether the alleged false criminal proceeding or false charges have been instituted by the complainant with the intent to cause injury, knowing that there is no just or lawful ground for such proceeding or charge against the accused. Paragraph 49 of the impugned order dated 16.02.2015, thus lacks the basic ingredients to make out an offence under Section 211 of the IPC.
Learned counsel for the applicant has relied upon a judgment of the High Court of Judicature at Madras in Crl. O.P. No. 2514 of 2020 and Crl. M.P. No. 1536 of 2020, A. Radhika v. Wilson Sundararaj and has invited the attention of the Court to paragraph 20 thereof, which is being extracted hereunder for ready reference :
“20.This Court had an occasion to consider the judgement of the Hon’ble Supreme Court in Perumal v. Janaki (cited supra) in the judgement in S. Mukanchand Bothra v. Rajiv Gandhi Memorial Educational Charitable Trust & Ors (cited supra). The relevant paragraph is extracted hereinunder:
“7.It is our duty to point out that the alleged offence of the Sub-Inspector informing in the charge sheet the pregnancy of the girl concerned despite her medical certificate informing otherwise, would not and cannot fall within the definition of Section 211 IPC. It also is to be seen that Perumal had faced prosecution pursuant to a Magistrate taking cognizance. Fortunately, offence of making a false charge does not stand attracted as otherwise, it would be unfair to prosecute the Sub-Inspector who filed the charge sheet, while not doing so, the Judicial Magistrate who took cognizance thereon. As explained by the Supreme Court in Santokh Singh v. Izhar Hussain [(1973) 2 SCC 406], ‘the essential ingredient of an offence under section 211 IPC is to institute or cause, to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge. Instituting or causing to institute false criminal proceedings assume false charge but false charge may be preferred even when no criminal proceedings result. Now, the expression “falsely charges” in this section, in our opinion, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. “To falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial. The words “falsely charges” have to be, read along with the expression “institution of criminal proceeding”. Both these expressions, being susceptible of analogous meaning should be understood to have been used in their cognate sense. They get as it were their colour and content from each other. They seem to have been used in a technical sense as commonly understood in our criminal law. The false charge must, therefore, be made initially to a person in authority or to someone who is in a position to get the offender punished by appropriate proceedings. In other words, it must be’ embodied either in a complaint or in a report of a cognizable offence to the police officer or to an officer having authority over the person against https://www.mhc.tn.gov.in/judis/ whom the allegations are made. The statement in order to constitute the “charges” should be made with the intention and object of setting criminal law in motion.””
While relying upon the said judgment, learned counsel for the applicant would submit that it is settled law as laid down by the Hon’ble Supreme Court in the case of Santokh Singh v. Izhar Hussain and another, (1973) 2 SCC 406 that the essential ingredient of an offence under Section 211 IPC is to institute or cause to be instituted any criminal proceedings against a person with intent to cause him injury, or with similar intent to cause the charge against any person, knowing that there is no just or lawful ground for such proceeding or charge. Relevant portion of the said judgment is highlighted in the preceding paragraph.
Based on the judgment in the case of A. Radhika (supra) and Santokh Singh (supra), learned counsel for the applicants would submit that in the instant case, the learned Additional Sessions Judge, Vikasnagar, District Dehraun has totally overlooked the essential ingredients of Section 211 of IPC that the accused can be proceeded under Section 211 of the IPC only when it is found that the accused has instituted any criminal proceedings against a person with intent to cause him injury, or with similar intent to falsely charge any person with having committed offence, knowing that there is no just or lawful ground for such proceeding or charge.
Relying upon the aforesaid judgments in the case of A. Radhika (supra) and Santokh Singh (supra), learned counsel for the applicants would submit that in the instant case in paragraph 49 of the order dated 16.02.2015, there is no mention at all anywhere that the prosecution has been instituted by the complainant, or husband, or the Patwari with intent to cause injury to the accused, knowing that there is no just or lawful ground for such proceeding or charge.
Having heard the learned counsel for the parties and perused the record, it is evident that the impugned order dated 16.02.2015, is assailed only to the extent whereby direction has been made to institute a case before the competent court under Section 211 of the IPC.
In fact, in paragraph no. 49 of the judgment and order dated 16.02.2015, there is no satisfaction recorded by the learned Additional Sessions Judge, Vikasnagar, District Dehradun that the false case has been instituted by the applicants with the intent to cause injury to the accused. Also, there is no satisfaction recorded that the applicants were conscious that there is no just or lawful ground for such proceeding or charge against that person.
Since the essential ingredients of Section 211 of IPC are missing in paragraph no. 49 of the order dated 16.02.2015, the direction contained in para 50 would be in the teeth of the judgment of the Hon’ble Supreme Court in the case of Santokh Singh (supra) and judgment of High Court of Judicature at Madras in the case of A. Radhika (supra). On this limited ground, the Criminal Misc. Applications deserve to be allowed.
Accordingly, all these Criminal Misc. Applications are allowed. The direction to the Sessions Clerk as contained in paragraph no. 50 of the impugned order dated 16.02.2015, passed by the learned Additional Sessions Judge, Vikasnagar, in Sessions Trial No. 82 of 2014, State vs. Baru Singh to make a written complaint against the applicants under Section 211 of the IPC before the court concerned, is hereby quashed.
All the Criminal Miscellaneous Applications are allowed to the aforesaid extent.
Pending application, if any, stands disposed of accordingly.